Throwing Some Weight Around
I once represented a young Marine corporal at Camp Pendleton when I was on active duty. Corporal Z. He was overweight, which is not a good thing for a young Marine to be, and his battalion had identified this as a problem.
But the bigger problem was the command itself. Instead of doing the right thing when the problem had begin to develop (which perhaps ought to have started with his recruiter), the command decided to do the wrong thing far too late in the game. Corporal Z had injured his knee and was about to leave the Marine Corps honorably on a medical discharge, and was due to get out in, literally, a few days time. The command felt it would be appropriate to convene a competency review board (CRB) to reduce Corporal Z to lance corporal, which would result in a loss of a certain amount of separation pay. A CRB is to be used to help a Marine develop and grow in a lower paygrade, to attain the competence to function at the higher pay grade. It’s a remedial measure, which had no point at all in the case of a Marine who was almost out the door. The command was being mean, and petty, and cruel. For no good reason. This pissed me off.
It also pissed me off that the command was being very underhanded about the way they were conducting the board itself. They were rushing it, railroading Corporal Z into it, while ignoring the regulations, violating his rights, and actually telling me that my attempts to interfere with “their business” were not appreciated and that I was “not making any friends” in the command. Really? If you take a look at my job description, you won’t find “making friends with the command” anywhere in there. My job is to do everything I can to force you to respect the rights of Marines and to make you follow the law even when you don’t like what it says.
So, after several attempts to get them to stop what they were doing – all of which were ignored by the command – I did something that I probably shouldn’t have done. I sent an email direct to the CO of the battalion that was trying to make this happen. I was a Navy O-3, and this was a Marine O-5. And my e-mail was a bit… flippant. And direct. And in his face. And… did not do the best job in the world of rendering appropriate respect. The e-mail basically treated him and his command much the same way they were treating my poor, overweight client.
And the guy just went totally freaking bananas.
Almost all Marines I served with were honorable men and woman. I like to think that an honorable man in his position would have called me, or my boss, and said, “Report to my office NOW, smartass,” and given me a solid butt-chewing. I mean, after the butt-chewing, we could then have a rational discussion, right?
Not this guy. He whines to the commanding general of the 1st Marine Division (his boss), and apparently demands that I face an Article 32 investigation and general court-martial for disrespect to a superior officer. His CG reads my e-mail, spins up, and then gets on the phone to the CG of 1stFSSG (my parent command at the time), who spins up and calls my battalion commander, who calls my Officer-in-Charge. Everybody is freaking out because the Navy lieutenant wasn’t staying in his box.
In the meantime, having heard that a storm was coming, I had already talked with my senior defense counsel, and our regional defense counsel, and the Chief Defense Counsel of the Marine Corps, all of whom had my back. This was shaping up to be a way bigger deal than it ever should have been, all because of my short-fused response to a ridiculous situation. But, although sticks and stones can break your bones but words can never harm you, the battalion CO nevertheless wanted to see my head on a stick.
My OIC (a great man with whom I’m proud to have served) was not happy, I think not so much because he had two pissed-off general officers in his face, but more because he had actually warned me on a prior occasion about being a smartass in emails to seniors. He thought, reasonably, that I would actually learn from a prior mistake. Truth is, I’d forgotten all about that prior thing, and to this day I have no memory of it. He didn’t really play up the ‘me going to my own Article 32′ end of things, but he made it clear that this problem wasn’t blowing over. Apparently, the battalion CO had really put his CG on the spot, and his CG (who would later become Commandant of the Marine Corps) was speaking my name in anger in high places, and everybody had something to say about the situation, and the whole thing was beginning to take on a manic life of its own. Exactly how close I came to a charge sheet, I never knew, but I was concerned enough that I sat down with my family and explained to them what the process might be, and what the outcomes might be, etc.
(By the way, in the interim, Corporal Z’s battalion proceeded with the unlawful and petty CRB, and they reduced him to lance corporal the day before he was to leave. More on that in a minute.)
So after a few VERY uncomfortable days, my OIC summons me to his office. I’m walking across the parade deck thinking, “That’s it. I’m done. I’m going to get convicted and then I’m going to lose my law license.” It seems stupid in hindsight, but at the time, it was very real. I was getting props and support from my fellow defense counsel, but the ass on the line was mine and mine alone. I was trying to remember that I knew my cause was righteous, that I did what I had to do in throwing that word grenade, and that there was literally no one else standing up for this Marine but me… but the truth is I was frightened.
I sat down with my OIC, who was stern and exasperated, but kind. “I’m going to issue you a nonpunitive letter of caution [NPLOC], Brian.” He explained that this would help defuse the situation, that he was sensitive to the attorney-client issues, that although my email was inappropriate he understood that I wrote and sent it in the course of duty and not as an unprovoked missile, and that, “frankly, I saw someone about to come around the corner and shoot you in the face, so I shot you in the leg.” We’d served together long enough for him to know about my irreverent streak, so he said, “I know you’re tempted to frame your NPLOC and hang it up on your wall for all to see, but I’d appreciate it if you don’t.”
The general officers were now appeased, though evidently the Division CG had promised his battalion CO that he would have his chance to dress me down personally as a condition of agreeing to let this thing be handled as a NPLOC. He also told his staff judge advocate that “LT Bouffard doesn’t have anything to offer any of my Marines. I don’t want him working on any Division cases.” So for the rest of his tenure as CG, I was not detailed any Division cases. When he left months later and a successor CG took over, I resumed getting Division cases, and ended up (among other things) defending two Marines in two completely unrelated negligent homicide cases with a total of five dead bodies and, when the dust had cleared, zero days confinement served by either of my clients. With a savage sort of glee, I daydreamed about sending the old CG an email telling him that it appeared I did in fact have something to offer Division Marines, and the defense never rests, and Go Navy, and by the way to suck it. Having learned my lesson about sending emails in anger, though, I kept my fingers far away from the keyboard.
So a few weeks later, two momentous things happened. The first was that I had a scheduled meeting with the battalion CO, in which I would get chewed out like never before in the history of joint service. The second thing (which actually happened before the meeting took place) was that the CG had actually disapproved the findings of the CRB, and ordered that Lance Corporal Z have his rank restored to corporal. So as mad at me as they were, they couldn’t deny that I was right and they were wrong, and they also knew I’d likely take it all the way to the Secretary of the Navy if I had to. As you can imagine, especially after the huge goat-rope this had turned into, that the battalion CO had been professionally embarrassed in front of his boss over this whole ugly affair.
Which, frankly, delighted me.
Through it all, the right result had been reached. My client was made whole (maybe a little too whole, given the circumstances). He hadn’t been the best Marine in the world, but he was a human being. And the Corps that he’d made it through hell to become a part of was going out of its way to give him an unnecessary and dishonorable kick in the ass on the way out the door. Proper leadership apparently had never been tried. Nobody in authority in his battalion cared about him. It wasn’t right. And we’d pushed back, and we’d beaten them. It hadn’t been as dramatic as a white-knuckled ”not guilty” verdict in a hotly contested court-martial trial… but it mattered a whole lot to Corporal Z. Which made it matter a whole lot to me.
So my senior defense counsel and regional defense counsel accompanied me into the battalion CO’s office. They were there to “observe,” but also I think to make sure I didn’t open my mouth and say something that would make the man’s blood pressure redline. I reported in, stood at the position of attention, and said, “Sir, I offer you my sincere apology for the tone of the email I sent you. It was unprofessional, and I’m sorry. I also shouldn’t have given a copy of it to my client.”
(Did I forget to mention that? After I sent the email, but before I was aware it was going to rock me like a hurricane, I gave a copy to my client. I heard later that pretty much every Marine in paygrade E-1 to E-5 in the largest battalion in the USMC had all passed around the snarky email from the lawyer telling the CO to get bent, and had been laughing about it behind his back for weeks. Oops. My bad.)
He got to his feet, his face already starting to turn red, and began to yell at me.
He actually started to work himself up as he got going, and as he got more and more frenzied and emotional, I remember getting calmer and calmer. I wasn’t really listening to a word he said, though I was outwardly respectful enough to nod and say, “yes, sir” at the right places. I had completely tuned him out (that’s the danger of putting someone at the position of attention; it is extremely difficult to sense whether they’re actually paying any attention to what you’re saying). I admit I became mildly concerned when his face went from red to purple and I thought he might stroke out right there on his desk.
Because it was clear to me, and I think everyone in the room, that he’d lost. He hadn’t gotten what he wanted out of my client, Corporal Z. He hadn’t gotten what he wanted out of me. He’d skylined himself to his general, who ended up not having his back. And though I was standing there ceremonially showing my throat, he wouldn’t ever be able to lock his jaws on it. I was there with my people, good and honorable men who were supporting me, silently watching the ritual unfold, watching me pay the dues that were ordained.
Eventually, the kabuki ended, and the three of us departed solemnly. We made it all the way to the car before laughing.
Tags: Brian Bouffard, Competency Review Board, corporal, email, Marine, NPLOC, overweight
