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You have to tell them they are wrong

It's important that leaders create an environment where subordinates feel they can be candid and voice their concerns with decisions in order to act as a counter balance to the commander's possible cognitive biases. Unfortunately, because of the nature of the military often the exact opposite is created: where those that disagree with leaders often face adverse impacts to their careers.

Last week I wrote about my time working for, and disagreeing with, my commander in 2006 Lieutenant Colonel Kevin Traw. At the time I didn't know how he would receive my criticism; however that didn't deter me from speaking up.

Colonel Traw's response to the article was 'A leaders response is often the key factor in how open a person will be with them at that moment and in the future' In essence, weak leaders shut down the conversation, when the conversation doesn't support their narrative.

Once as a section chief one of my female subordinates approached me to tell me that she was going to Equal Opportunity to report an incident of sexual harassment.

I  told her she was welcome to and I would support her. I asked that she let me know what happened so I could work on correcting the climate in the section.

She told me of an incident 3 weeks prior where a male swing shift Airman was promised a cutback if he could 'deep-throat' a banana. While crude, it wasn't really out of the ordinary for maintenance. The incident was recorded on someone's cell phone and this female subordinate came out to the break room as the video was being replayed.

As she gathered around to watch the replay, she claimed a co-worker leaned over and told her to pay attention 'she could learn a thing or two' the implication of the comment implying something of a sexual nature.

I informed my chain of command of the accusation and began an informal investigation.

So I began by asking her who was present so I could ask them if they remembered hearing the inappropriate comment. She gave me a list of about 12 people, that expanded to a few more after some interviews.

Knowing that this incident had escalated to the commander I was careful to do formal statements from each of the witnesses. I marked each statement as a witness which doesn't require advisement of Article 31 protections;  Miranda rights essentially.

Unfortunately I was unable to get much information from the interviews. The problem was a matter of time. Can you recall what you had for dinner 3 weeks ago and what was said at the dinner table? I can't.

Many of the witnesses were not confident enough in their memory to be willing to swear an oath to it's accuracy.

On the backside of the 1168 is the following statement (required to be signed to validate the statement):

'I hereby voluntarily and of my own free will make this statement without having been subjected to any coercion, unlawful influence or unlawful inducements. I swear (or affirm) I have read this statement, initialed all pages and corrections, and it is true to the best of my knowledge'

After two days I was about half-way through interviewing witnesses when the interviews came up in a discussion with my squadron superintendent Chief Fraley.

Specifically he asked if any of the witness corroborated the initial complaint. I explained that none of the witnesses felt comfortable making a statement, or the statements were simply 'I don't remember the specifics of any of the comments made during the video playback.' I went on to explain that I doubted the remaining witnesses would have a memory of the statement either, leaving us with a she said/he said [the accused elected to remain silent].

Chief Fraley seemed dissatisfied with my progress and said that the commander would simply bring the witness in front of him and order them to make statements.

I told him that I didn't believe that was correct, that the commander couldn't compel them to make statements.[I later learned I was wrong and the commander can absolutely order people to make statements. However there are exceptions and exemptions that we will discuss later.]

I went back to my office to try and find a good time to meet with the remaining witnesses as most of them were on swing shift. That's when I began getting Outlook calendar requests/notifications.

The notifications were for the following Monday. They were populating faster than I could read and accept. In all there were about 14 notifications, requesting my section chief counter-part MSgt Masculino, each witness and myself. The text directed the witness to be in full-service dress.

The specification for full service dress is a dead giveaway that it was not going to be an informal or conversational sort of appointment. In the military, they always dress you up to dress you down. Clearly this was going to be a one-sided disciplinary sort of affair. Being this was mere hours after Chief Fraley's statement I was concerned there could be some inappropriate actions by the commander.

I wasn't sure what exactly would be discussed and I didn't even know the legality of the commander ordering someone to make a statement. I've always been the type of person to do my homework before walking into a room.

So I set out to investigate the legality of the commander ordering someone to make a statement. My biggest concern was that the statement had an oath swearing the statement was "voluntarily and of my own free will".

So my two concerns: Could the commander order someone to make a statement? And if so, could someone sign the oath saying the statement was voluntary if they were ordered to make it?

I first called the Holloman JAG office to ask for their advice and assistance. They stated they were not such a resource and unless I was a commander or a First Sergeant working on behalf of a commander they would not provide legal advice. They recommended if I had a question to call the Area Defense Counsel.

I called the Area Defense Counsel. Their first question was what was I accused of. I replied I wasn't accused of anything, I had a legal question. They responded they weren't in the business of providing legal advice unless I was under investigation or accused of an offense. They recommended I call the Inspector General.

I was worried that going to the IG even for a simple question could open a can of worms that I didn't want. So rather than go to the IG office, I took a detour to the JAG office. I was hoping to ask a JAG lawyer my question before they could tell me to leave.

No such luck. The resident paralegal intercepted me and took me aside to see what he could do. First he advised me that he was not a lawyer and couldn't provide legal advice. Then we spoke in hypotheticals. He agreed that the oath in particular was problematic if my anticipated scenario [ordered statements] came to fruition. He recommended I speak to the IG.

So I did. When I went I made sure not to name my commander or my unit. I didn't want this to somehow morph into a complaint. After all, I was just trying to make sure the commander didn't do something illegal.

This particular commander once said that he 'walked the fine line between legal and illegal and sometimes he wasn't perfect.' When he said this, he had a bit of a mischievous smile. The type of look that implied he crossed the line more than he would be willing to admit.

Interestingly, the Secretary of Defense addressed this type of behavior specifically. In August of 2017 he released a memo that stated 'I expect every member of the Department to play the ethical midfield.  I need you to be aggressive and show initiative without running the ethical sidelines, where one misstep will have you out of bounds.  I want our focus to be on the essence of ethical conduct:  doing what is right at all times, regardless of the circumstances or whether anyone is watching.'

It's a bit disturbing the SECDEF had to make such a request isn't it?

I spoke to the IG inspector and he declared that I was 'in luck' because he was an expert on this topic as he taught the Command Directed Investigation course at Holloman Air Force Base. He stated emphatically that it was perfectly lawful for commanders to order subordinates to make statements if they are witnesses. He likened it to a judge issuing a subpoena for a witness to testify.

I thought about it, and he was right. That happens all the time doesn't it? These same witnesses even swear an oath. We see it on crime dramas day after day and week after week. 

Do you swear to tell the truth, the whole truth, and nothing but the truth so help you God?

So that addressed my first concern: Could the commander order someone to make a statement? Yes, if they are a witness.

However, the oath on the AF Form 1168 went above and beyond just swearing that the statement was true. It also required to you swear an oath that it was voluntary.

I asked the IG inspector about the logical conflict: How could a commander order someone to make a voluntary statement? The inspector condescended stating that that portion was meant to prevent people from telling the witness what to say.

Unfortunately I am literate and perfectly capable of comprehending the oath.

However I had my answer. It was legal. If the commander ordered someone to make a statement, by the UCMJ they are legally compelled to make a statement. But legality and morality are sometimes at odds with each other. I believed this was one such situation.

I returned to work still bothered with the situation. Then I realized why I was so frustrated. I had been asking a question of morality to the wrong people. And for the first time since Basic Training I called the Chaplain. Who more suited on a military installation to help with a question of morality?

The chaplain was nice enough to stay late on a Friday to meet with me. I presented him with a blank 1168 and asked him how he interpreted the oath. He dissected each phrase and told me that it was a 'voluntary oath that wasn't coerced and was true and factual.'

I asked him if he ordered me to make a statement, could I in good conscience sign the oath. He replied as it was currently written someone couldn't reconcile the lawful order and signing the oath without breaking the oath by signing it.

I thanked him and went home for the weekend, the appointments with the commander on Monday weighing on my mind.

So Monday came and so did the parade of dressed up maintainers. A reminder: The crux of the commander ordering someone to make a statement is he can't compel them to self-incriminate. Much like you can't be subpoenaed to testify against yourself. In this situation, he wasn't bringing in the offender but he was bringing in the witnesses.

He had a Letter of Reprimand prepared for each witness. Citing violations of a lawful order for violation Air Force guidance on enlisted professional behavior. So were they still witnesses then? In some cases the LOR wasn't served, other cases the LORs were served with an accompanying Unfavorable Information File, an added negative mark on their professional record.

The commander assumed A) The offense had been committed with no other information than the accusation and B) was holding possible witnesses to blame for the incident by not remembering it or being good 'wingmen' during the event and stopping it.

Can't get much worse eh? In the famous words of Charlie Murphy: WRONG!

As he served these LORs to each witness he told them that they could write a rebuttal to the LOR and if in their rebuttal they provided more information about the incident he would consider removing the LOR from their record.

Doesn't get much more coercive than that does it?

As the last witness of the morning walked out of his office the commander turned to me and asked if I had heard of anyone going to the ADC or IG. I responded that I believed one of the 'witnesses' had gone to the Area Defense Counsel.

The commander clarified that he meant if I had heard of any Senior Non-Commissioned Officers going to the ADC or IG. It was evident that my escapades to the various organizations on Friday had reached his attention, most likely the IG office.

As I wasn't ashamed or embarrassed by my behavior I told him that it was me. He responded asking what was I curious about. I explained I was concerned about him possibly ordering people to make statements and I was trying to ascertain whether it was legal or not.

He asked what had I learned. I replied that from the best I can tell it was a lawful order.

He leaned back in his chair with a smug look on his face, which wasn't at all uncommon.

I continued explaining that just because something is legal doesn't make it ethical. This seemed to pique his interest and he asked what was my concern.

I explained that the oath required the statement to be voluntary and I couldn't be both ordered to make a statement and sign an oath that it was voluntary.

He asked if he ordered me to make a statement what would I do?

I replied that based on my research and understanding that it was a lawful order and I would make a verbal statement to him. If he asked me to write it down I would. If he asked me to write it on an 1168 I would also do that.

Finally I said if he ordered me to sign the oath on the 1168 I wouldn't, and I would meet him in court and I would win.

First of all, who fucking knows if I would win. I sure don't know.

But the other people in the room were aghast at my tone and response. How dare I say these things to the commander! Chief Fraley looked like he was going to lay an egg. I say that because he seems like the type to use such a flaccid phrase like 'lay an egg'

In the end the accused was under a previous Article 15 suspended bust and the commander elected to permanently demote him. That is the commander's prerogative and I don't really take issue with it.

However, when the commander interrogated every witness and threatened them with career altering administrative actions on very little evidence, I believe he caused irreparable damage to the section and his standing in the unit.

It's hard to say why he took such a hard line approach to this incident in particular. It could be that the Air Force as a whole was wrestling with unfavorable perceptions of sexual harassment and complacent commanders. He did state that he wouldn't want a young Airman subjected to the type of environment described in the initial complaint. But none of these concerns adequately addresses why he attacked the witnesses themselves, especially considering the accused was already on a suspended bust so there was no legal requirement to permanently remove their stripe (which coincidentally caused the member to exceed High Year Tenure and be separated from the Air Force)

I think that there were a few things at play here.

First, I think he was angry that the accused had sought legal protections from the ADC. This commander in particular seemed to despise when someone exercised their rights and assumed anyone that remained silent was guilty [there's a very ironic story that goes along with this].

Second,  he seemed to have a profound anchoring bias which meant he believed the initial accusation and any subsequent data that was at odds with the initial belief was seen as dishonest.

Third, I think he had a hard time separating his professional and personal ego. So anyone that didn't defer to his authority [whether legitimate authority or expected deference] was a personal insult. I think he saw the witnesses that were unwilling to testify as defying him and he was using all of his administrative tools at his disposal to coerce their cooperation.

In one case, a witness that was only in a nearby room was given an LOR and UIF because he 'should've' been present to prevent the incident from happening.

I always had this thought that Chiefs would be the ones to speak up when it was necessary because they had nothing to lose in their career anymore. That they would no longer be beholden to promotion so they could provide Chiefly advice without career influence. In the end, I think the moral compromises required to make Chief in many instances robs them of the strength of character to actually be Chiefs.

It's our job to tell the commander when he is wrong, or his judgment is off-target. They are human and subjected to the same biases and prejudice the rest of us are. By reinforcing those biases you do a disservice to the commander and vicariously the unit he or she commands. But as Colonel Traw said, it's the commander's responsibility to create an environment where people feel comfortable speaking up.


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