I once represented a young Marine corporal at Camp Pendleton when I was an active duty JAG defense counsel. 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 begun to develop (which, let’s face it, should 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 decided it would 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. What’s the lawful purpose of a CRB? It is to be used to help a Marine develop and grow in a lower pay grade, to attain the competence to function at the higher pay grade. It’s a remedial measure, and it had NO POINT AT ALL in the case of a Marine who was almost out the door. The commanding officer was being mean, and petty, and cruel. For no good reason. And 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.
If you take a look at the job description of a military defense lawyer, you won’t find “making friends with the command” anywhere in there. My job is to do everything I can to force them to respect the rights of Marines and to make them follow the law even when they decide they 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 battalion commander. I was a Navy lieutenant (O-3), and this was a Marine lieutenant colonel (O-5). And my e-mail was, to be honest, pretty direct and flippant and in his face. I may not have done the best job in the world of rendering appropriate respect. My e-mail basically treated him and his command with about the same amount of respect they were showing my poor, overweight client.
And the guy just went totally freaking bananas.
Now, I’ll say this: the overwhelming majority of Marines with whom I served were men and women of honor and integrity. I like to think that an honorable man in his position would have called me, or my boss, and said, “I want that smartass squid lieutenant in my office right now,” and given me a solid butt-chewing. I would have deserved it. And then, 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 an officer who would later become Commandant of the Marine Corps), and 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 himself up, and then gets on the phone to the CG of 1stFSSG (my parent command at the time, now 1stMLG), who also 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 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 his petty and mean-spirited CRB, and sure enough, 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, “This is it. I’m done. I’m going to get prosecuted and 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 support and encouragement from my fellow legal warriors on the defense side, but the particular 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, and I’m not going to order you not to, but I’d appreciate it if you don’t.”
The general officers were now appeased, though evidently the battalion commander’s CG had promised him 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 homicide cases with a total of five dead bodies and, when the dust had cleared, zero days confinement served by either of my clients. (And with a savage sort of glee, I daydreamed about sending the prior 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 essentially to suck it. Having learned my lesson, 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 ended up happening before our 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 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, the battalion CO had been professionally embarrassed in front of his boss over this whole ugly affair.
Which, frankly, delighted and entertained me.
Because through it all, and as messy and stupid as it had become, the right result was reached. My client was made whole. He hadn’t been the best Marine in the world, true, 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 a cruel 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 it demeaned the Marine Corps that I was not a member of, but which I deeply love. 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 spike into the red. 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 turn into a giant hurricane of suck, I gave a hard copy of it to Corporal Z. I heard later that pretty much every junior enlisted Marine in the largest battalion in the USMC had all passed around the snarky email from the Navy 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 started to work himself up as he got going, really getting into the swing of things, and as he got more and more frenzied and emotional, I remember becoming 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 just completely tuned him out (that’s the down side 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 believe to 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 embarrassed himself to his general, like a kid who calls for his mommy rather than handle his own business, and his general ended up not having his back. And though I was standing there ceremonially offering him my throat, he wouldn’t ever be able to truly lock his jaws on it. And I was there with my people, good and honorable Marine officers who were there for 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.