he could leave the brig with a debarment
order in his hand, no ID card in his wallet,
and without most all of the benefits earlier
described. But, as it stands, he may well decide to live just outside the back gate, use
the gym, exchange, and base medical clinic,
all while attending college at government
expense. Private C.I. Villian was heard to
say, “Thanks, LtCol Hardas.”
In the aggregate, Marines and sailors on
appellate leave (the vast majority are
Marines), and their dependents, receive approximately $2.4 million of purchased
medical care per year—really, $2.4 million! 3 That figure does not include the
value of care provided to them at military
facilities. Is this the punishment our convening authorities have in mind? Marines
have been known to call up the Navy and
Marine Corps Appellate Leave Activity
(NAMALA) 4 asking to delay their discharges because they are close to earning a
degree, having used their military education benefits. Does every Marine on appellate leave take advantage of his or her
privileges? Probably not, but the number
of ID card renewals by those on appellate
leave indicates that their continuing active
duty status is valuable to them.
Marines die while on appellate leave.
Here is one example. A Marine who was
convicted of drug use in 2003 was still on
appellate leave when he died of a drug
overdose in 2005. The conviction is null
and void, and all rights and privileges must
be restored. His beneficiaries will receive
the SGLI payment of $400,000; backpay,
as adjusted for any earnings or public assistance received; and death gratuity. The
Marine’s discharge will be in accord with
his service record, absent the conviction
for use of drugs. A Judge Advocate General
Manual investigation into the death is ongoing. The record of trial in this case was
a mere 40 pages long, yet the convening
authority did not take action until nearly
2 years after the sentence. This is not an
isolated case. In 2003, 12 individuals on
the rolls of NAMALA died while on appellate leave. 5 A number of Marines on
appellate leave are seriously injured in automobile and motorcycle accidents every
year before their cases can complete appellate review. The result? More paperwork
and cost.
Things Can Be Done
What can you do to reduce the size of
the lost battalion? Know the second and
third order effects of your decisions as a
court-martial convening authority. Ensure
that your staff judge advocate (SJA) provides you with the alternatives to avoid
sending a Marine to the lost battalion for a
2-year tour. A special court-martial sentence that does not include a punitive discharge or a year in confinement does not
trigger mandatory appellate review. A Ma-
If you cannot make a
disciplined Marine out
of someone with firm,
fair leadership, consider making him a
civilian rather than a
member of the lost battalion.
rine does not go to the lost battalion to
await that review, and he is much sooner
discharged and no longer subject to our
care and responsibility.
There are other options that do not
send a Marine to the lost battalion. Convening authorities should contemplate alternatives, such as the use of administrative
separation in lieu of trial by court-martial,
non-BCD special courts-martial, summary
courts-martial, or nonjudicial punishment
combined with an administrative discharge
for cases where the primary goal is to punish a Marine for his transgressions and remove him from the Corps as quickly as
possible. You can discuss these options with
your SJA, law center, or legal service support section.
A Speedy Review
The Marine Corps is the smallest component of the Armed Forces but does more
courts-martial than the other Services—a
lot more. In 2004 the Marine Corps tried
1,261 special courts-martial and 1,137 in
2005.6 A significant majority of those special courts-martial are typically for relatively minor military offenses. In comparison, the Navy tried 531 special courts-martial in 2005.7 For the same year, the
U.S. Army tried a total of 1,500 cases, including both general and special courts-martial and other evidentiary hearings. 8
Why are there so many cases for the
Marines? One might argue that our demographics and need for uncompromising
good order and discipline demand a high
number of courts-martial and punitive discharges. However, the general deterrent
value of these courts-martial is dubious;
one need only look to the fact that we have
a high number of special courts-martial received for review at the Navy and Marine
Corps Appellate Review Activity (
NAMARA) year after year. 9 Giving out lots of
BCDs has not made and will not make our
force magically more disciplined. If you
cannot make a disciplined Marine out of
someone with firm, fair leadership, consider making him a civilian rather than a
member of the lost battalion.
I am not advocating being soft on military discipline. I am advocating being
tough on those who have committed
minor offenses and who don’t deserve to be
Marines. Take from them the benefits they
would otherwise receive while on appellate
leave. Do not force the Marine Corps to
pay the “cost” of maintaining so many
Marines as members of the lost battalion.
Of course, some offenses and offenders
demand trial by court-martial in which
their sentences will trigger mandatory appellate review. What can be done in these
cases to reduce the size and tour length of
these Marines who will be in the lost battalion? Ensure that your courts-martial are
processed swiftly after the sentence is adjudged. Be cognizant of the fact that once
a sentence is adjudged, the appellate courts
expect and demand timely handling of the
case through the appellate process. 10
Ensure that your SJA and law center take swift
action once the record of trial is prepared.
Carefully consider the clemency matters
submitted by the accused and weigh the
benefits of retention verses discharge and
placement on appellate leave. Once you
take your convening authority’s action,
make sure the law center makes the neces-
