Sunday, November 11, 2012

What Should Be the Military Legal Disposition of GEN David Petraeus’ UCMJ Adultery Violation?

As more is revealed about the GEN David Petraeus resignation from the CIA over an adulterous relationship, it is very probable that the General, while still on active duty, engaged in adultery with a female married Army Reservist in clear violation of Article 134 of the Uniform Code of Military Justice. Article 134 makes criminal the act of adultery when certain legal criteria, known as “elements,” have all been met. There are three distinct elements to the crime of adultery under the UCMJ: first, a Soldier must have had sexual intercourse with someone; second, the Soldier or their sexual partner was married to someone else at the time; and third, that under the circumstances, the conduct of the Soldier was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

GEN Petraeus has already admitted to the first two elements of the crime and violation of the third, that his violation brought discredit to the armed forces and especially the Officer Corps, is obvious. The first thing every young officer learns is he or she is “always on parade.” That is their conduct is always being watched and the higher one rises, the more this is true. By the time an officer reaches field grade (major), they are constantly under scrutiny and every transgression sets a new standard of conduct, higher or lower, for their subordinates. So what should GEN Petraeus’ “reward” be for his violation of Military law?

To answer this question, it might be instructive to review what happened to the last highly decorated Army 4-Star General that had an “inappropriate relationship” that some might loosely describe as an “extramarital affair” although this General had been separated from his wife for over a year at the time, was in the process of finalizing a divorce, the lady was an unmarried civilian and he had made no attempt to hid the relationship. He was relieved of his command, demoted to 3-Star Lieutenant General and unceremoniously retired from the Army.

He was GEN Kevin P. Byrnes, at the time the Army Training and Doctrine Command (TRADOC) Commanding General, and on 8 Aug 2005, he was relieved of his command for his relationship with an unmarried civilian with no connection to either the military or even the federal government. The General had been separated from his wife since May 2004 and coincidentally their divorce was finalized on the same day he was relieved of his command – 8 Aug 2005.

The General was a popular and highly regarded leader credited with ushering in systemic changes in Army doctrine and training. A decorated Vietnam War veteran, he had commanded the 1st Cavalry Division and the multinational troops in Bosnia, and had been the Director of the Army Staff. He was set to retire that November after 36 years of unblemished service beginning when he was 19 years old so his punishment was “light” and he was allowed to retire at the reduced rank of Lieutenant General or 3-Star rank.

Now let’s contrast that with GEN Petraeus’ behavior (or “Peaches” as she calls him) with Army Reserve Lieutenant Colonel Paula Broadwell. She first met “Peaches” Petraeus in 2006 when she was a Harvard Grad Student and not sure when the affair started but it’s clear she began spending an inordinate amount of time with him by the time he was the CENTCOM Commander in 2009. When he became the ISAF Commander she managed to visit him six times in Afghanistan spending a total of three months with him. She characterized it as being embedded with “Peaches” there but it sound more like “Peaches” was “embedded” in her. Her “cozy” relationship with the General became awkward for his staff who could not understand how he could possibly select a totally unqualified “writer” with absolute no qualifications to write his biography.

GEN “Peaches” Petraeus has been married for 38 years and has two grown children; his son is also a West Point Grad and serving Army Officer. The general is fond of introducing his wife in glowing terms and preaching ethics and morality to his subordinates with his favorite saying being: “Character is doing the right thing when nobody is watching.” Broadwell is a forty year old married woman who lives in the upscale Dilworth neighborhood of Charlotte, NC, with her radiologist husband and two young boys. Like “Peaches” and his son, she is a West Point Grad.

Now Broadwell is a bit of a “nut case” which is how the FBI first learned of the affair which resulted in Director of National Intelligence Lieutenant General (Ret) James R. Clapper Jr. directing GEN “Peaches” that he immediately tender his resignation, turn in his badge, and never return to CIA Headquarters at Langley again!  It is encouraging to see at least this general officer had the moral courage to do the "right" thing although it appears GEN Petraeus was prepared to dishonorably maintain his deception as long as he could get away with it.

What triggered the FBI involvement was it seems Broadwell had gotten access to GEN “Peaches” Gmail account and learned of another woman who might have gotten a bit too close to her “Peaches.” Broadwell began sending her threatening e-mails and the other woman became so frightened by Broadwell’s menacing messages that she went to the FBI for protection and to help tracking down the sender. The FBI investigation traced the threats to Broadwell and the rest is History. The other women receiving the threatening e-mails has been identified as 37 year old Jill Kelley and her "story" is worthy of a whole another chapter is this sordid saga.

What is clear here is that GEN Byrnes’ transgression pails in comparison to that of GEN “Peaches” Petraeus. Byrnes was in an open relationship with an unmarried civilian and he was a stellar officer who was legally separated from his wife at the time and in the process of getting a divorce – but he was nevertheless wrong and he was appropriately punished for his violation of the Uniform Code of Military Justice.

So what should be the punishment for a General that carried on a long adulterous relationship with a female married Army reserve officer and it only comes to light through an FBI investigation? Also, it should be noted that GEN “Peaches” Petraeus did not just “volunteer” to resign because he realized “what he did was wrong” but rather Director of National Intelligence Clapper, himself a retired Air Force Lieutenant General, TOLD him he had to go! To be consistent, the “Byrnes precedent” sets the standard for how to be consistent in punishing GEN Petraeus for his UCMJ violation. Congress should immediately act to re-confirm the General on the Retired List in the reduced rank of three-star Lieutenant General.

While we’re at it, let’s not forget Army Reserve Lieutenant Colonel Paula Broadwell. Not only did she commit adultery but this “nut case” had classified documents on her private computer yet still carries a DOD Top Secret/SCI Clearance, although suspended, because of her Reserve duties. Regardless what else happens to her, her TS/SCI Clearance should be immediately revoked! Also, do we really need to retain in service a reserve lieutenant colonel so unstable as to be sending threatening E-Mails sufficiently menacing as to warrant an FBI investigation? Even though the Justice Department may choose not to prosecute, Broadwell should be immediately cashiered out of my United States Army!

4 comments:

  1. The likely result if he were still on active duty would be a letter of reprimand and consideration for retirement in the grade of LTG. We in the military law community are looking at this from a different perspective. But keep in mind MG Hale, USAF.
    Cheers, mljucmj.

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  2. Just like UCMJ 134 we have a litlle different Army Act 63 in India namely, 'An Act prejudicial to good order and military discipline' under which this would be moral turpitude wherein he stole the affections of a brother officer's wife. Punishments are severe usually dishonorable discharge/dismissals from service or even cashiering.
    Liked your blog.Keep it up.

    Sudhir

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