On August 25, 2015, The Daily Beast reported that the Pentagon would be giving a “free pass to Ashley Madison cheaters,” citing Army and Navy spokesmen and an anonymous official, who indicated that the en masse prosecution of 15,000 service members would be tantamount to a “witch hunt.” One has to wonder if this anonymous source has been paying attention to the military’s five year crusade against the perceived sexual assault problem by service members, which has led to a steep increase in prosecutions and substantial changes in laws to help increase convictions rates. MJA believes that the data breach of military servicemembers will indeed generate courts-martial.
There is great pressure on the military to self-govern when it comes to alleged misconduct in its ranks which is evidenced in the Uniform Code of Military Justice (UCMJ) that provides all military with notice of proscribed criminal conduct such as adultery, order violations and fraternization. Furthermore, the UCMJ provides commanding officers or generals with wide latitude in disposing of what they think to be misconduct of a service member under their charge. If it is determined that the servicemember committed the alleged act by the preponderance of the evidence, a commanding general (i.e. convening authority) can choose to dispose of the misconduct by merely drafting a reprimand, or offering Article 15, or referring the allegations to a courts-martial. Moreover, each Armed Service Branch has its own law enforcement (i.e. OSI, NCIS, CID) that is responsible to investigate all alleged misconduct, and their own prosecutors who are responsible to charge all known misconduct. Lastly, commanding officers and generals are routinely evaluated throughout their careers on how successful they are in “insuring the good order and discipline” within their ranks.
So what can an active duty service member expect if his or her e-mail address was discovered by their command because of the Ashley Madison data hack?
We at MJA believe that it is unlikely that a military e-mail address alone would be enough to convince a commanding officer or general to refer charges to a court-martial; however we do think with more evidence, a court-martial is highly likely. For instance, if a service member was a paid user of AshleyMadison.com and his or her credit card information, including full name and billing address, was discovered by the command or investigators, the commanding officer may be more willing to push for a court-martial. What if the hack also revealed that the user profile included preferences for “younger looking girls” or additional biographical information, such as height, weight and eye color? What if there was evidence that payment or activity were performed on government computers, during normal work hours? What if the active duty user was an officer? Do you think the commanding officer or general would seek criminal prosecution at that point? We do.
Another scenario involves an active duty service member who is being investigated for other types of misconduct. It is very likely that we will see military prosecutors cross-check the Ashley Madison breached data in order to add charges to the existing charge sheet (i.e. pile on). Does anyone think that investigators and prosecutors will not, as a standard operating procedure, cross-check all military servicemembers who are being actively investigated for any and all misconduct?
Remember that if you are read your Article 31b Rights by your command or investigators, do NOT waive those rights, but rather invoke those rights, and ask to speak with your attorneys at MJA.