Duty, Honor, Country and Too Many Lawyers

By John Harry Jorgenson, USMA 1967
 
Originally printed in "The Lawyer's Washington" column in the American Bar
Association Journal for April 1977 (63 ABAJ 564-S67). Copyright 1977 by
the American Bar Association. [Reprinted by permission.]
THE United States Military Academy, located at and popularly known as West Point, recently went through a period that shocked its foundations as much as its transition from charm school to military college under Sylvanus Thayer, father of the Military Academy. First, under directions from Congress, it became coeducational -- successfully from initial reports. Second, it suffered through the worst cheating scandal of its history. These events are totally unrelated, and it is the second this article examines. Paragraph 12.14 of the academy's regulations provides:
 
The Cadet Honor Code states that a cadet will not lie, cheat or steal, nor tolerate those who do. A cadet who violates the Cadet Honor Code shall be separated from the United States Military Academy.
Almost from the first day at West Point a cadet is expected to know what the honor code says and means. To paraphrase Justice Black, "It means what it says." Enforcement of the code is vested in the corps of cadets, which, guided by tradition, the army, and the staff and faculty, has developed over the years an honor system through which cadets are educated and occasionally instructed on the honor code. The honor system is overseen by the honor committee, a group of cadets elected by their fellow cadets because of their strength of character.

During the 1976 cheating scandal -- there have been several others -- the system as directed by the cadets and as changed by the academy personnel to deal with the scandal came under heavy fire from cadets, irate parents, Congress, and defense attorneys assigned to counsel cadets accused of cheating.

The tip of the iceberg was uncovered by a professor (instructor, the army calls them) in the Department of Electrical Engineering. A series of take-home problems had been assigned to the more than eight hundred cadets enrolled in the class. Only one problem was clearly marked with the admonition that all work on the problem must be done individually. One cadet marked on his paper that he received help. The instructor then examined other papers to see whether the cadet who had helped the confessing cadet had marked on his paper similarly. He found instead that there was a striking similarity between a substantial number of the papers. After further examination, the Department of Electrical Engineering forwarded the names of 117 cadets to the honor committee, one of whose functions is to investigate allegations of honor violations and then vote on whether the accused violated the honor code.

The honor committee examined 101 of these cases, the others apparently resulting in resignation by the accused cadets prior to committee action. Of these 101 cadets, 52 were found guilty. Of the 52, four resigned, and the rest were referred to the Department of Law at West Point to learn their alternatives. Under the system, an honor committee of twelve cadets hears cases for and against the cadet. A unanimous vote of twelve is necessary to find the cadet guilty. A cadet who resigns is given an honorable discharge and leaves West Point, unless the Department of the Army believes a discharge of lower character is warranted. A cadet not found guilty resumes his place among the corps of cadets. As proceedings before the honor committee are secret, few people will know what occurred in either case. The names of cadets separated are deleted when specific honor violations are discussed in the periodic honor counseling sessions. Situations in which a cadet is found innocent are not discussed. Cadets are asked not to discuss specific honor violations with non-cadets.

The cadets referred to the Department of Law were assigned counsel from among the instructors. They probably were told that the next procedural step would be a hearing, with counsel, before a board of officers convened under Army Regulations 15-6. It was during this process that the actual extent of the cheating was disclosed publicly. Defense counsel for the accused cadets petitioned the secretary of the army for an investigation of the scandal, alleging that officials at West Point were trying to limit the investigation. During interviews with their clients the defense counsels were told of a pervasive, perhaps uncoordinated, web of honor violations stretching from toleration of cheating to reports that members of the honor committee would take bribes.

The secretary of the army, Martin Hoffman, declined at that time, May of 1976, to order an investigation, but the pressure, or ublicity, or gravity of the situation spurred the superintendent of the academy to action. Lt. Gen. Sidney Berry, in his role as commander of the academy, appointed an "internal review panel" on May 23,1976, to "investigate and examine evidence of violations of the Cadet Honor Code and other regulations for U.S.M.A. and recommend for referral to boards of officers, all cases for which this panel determines there is probable cause of a violation." Since graduation was a few weeks away and most of the honor committee would be graduating, since summer training was a few weeks away and most of the juniors (second classmen) would have duties as new first classmen (seniors), and since almost all the accused cheaters were second classmen, Superintendent Berry was faced with the necessity of expediting the investigation. The panel was also given a charge to investigate or at least act as a check on possible corruption within the honor committee itself. It therefore reexamined all cases regardless of the previous outcome.

As of August 11, 1976, the internal review panel had looked into 235 cases arising from the take-home examination, including the original 117. By December 6, 134 cadets had resigned or had been separated in another manner from the academy for cheating on the problem. The rest presumably were not found guilty and retained their positions within their class.

On August 23 Secretary Hoffmann announced yet another panel while he was testifying before a congressional committee. This one was called "special advisory panel" and had the duty of taking a "broad-based, sensitive, nonintrusive look" into the honor system. The secretary also announced that cadets involved in the electrical engineering scandal would be separated, on a finding of guilty, but might reapply after one year for readmission. Cadet violators who had gone undetected were given a short grace period in which to come forward. Failure to do so and subsequent discovery would make them ineligible for the readmission option.

A Second Chance

A readmission committee would evaluate the interim year's activities to determine whether the separated cadet desired a military career. Provision would be made, he said, to allow a separated cadet to spend the time in the army, which would demonstrate desire. A major legal problem in all this is the lack of specific statutory authority for setting up all the special committees, panels, and procedures. Courts have held that the honor system as it is supposed to be run does not violate fundamental fairness and is not criminal in nature. See, e.g., Dunmur v. Ailes, 348 F.2d 51 (D.C. Cir. 1965). Even taking into account the extraordinary allegations of command influence on defense counsel and their clients, corruption within the honor committee, and training and graduation pressures, the internal review panel is on shaky foundations. Calder v. Bull, 3 Dallas 386 (1798), limited the ex post facto clause to criminal cases, but in Fletcher v.Peck, 6 Cranch 87 (1810), retroactive civil legislation was declared unconstitutional. The internal review panel looked at all cases, regardless of outcome, on which the honor committee had ruled. The cadets found innocent at the honor committee level, absent prima facie evidence of tampering with the committee, arguably should not have been required to appear before the internal review panel.

A second legal problem raised by defense counsel was the refusal to permit counsel before the honor committee or the internal review panel itself. Counsel was and is allowed before the board of officers. Coupled with this refusal is the failure to give Uniform Code of Military Justice Article 31 warnings (similar to Miranda warnings) during the proceedings. In any administrative procedure in which liberty or a property right are at stake, a formal hearing must be provided. Boddie v. Connecticut, 401 U.S. 371 (1971). Depending on subsequent proceedings and the interests involved, formality and procedural requisites can vary. If an honor proceeding is considered administrative rather than criminal in nature, due process would seem to be satisfied if counsel is allowed at some point in the review, even if denied at the honor committee level. And Article 31 applies to criminal specifications or charges. Since the internal review panel would send any cases in which it found "probable cause of a violation" to a board of officers, where counsel is permitted, it would seem that due process, so far as access to counsel is concerned, was satisfied.

Defense counsel raise a third -- and novel -- argument. They contend that separation from the academy for an honor violation is not grounded on any statute but comes, rather, from the regulation quoted above. Without a statutory foundation, they argue, the honor committee, the board of officers, the superintendent, and the Department of the Army -- each of whom reviews a finding of guilty and each of whom may reverse the next lower reviewing body -- lack the power to separate a cadet following a finding of guilty.

The Uniform Code of Military Justice does not mention the honor system but does address cheating. Prior to 1958 any cheating uncovered by the academic departments was handled under the U.C.M.J., Article 133 of which says that cheating is a court-martial offense. A form specification (charge) is found as Form 122. What the army may point out eventually, since in early court fights it has argued only jurisdiction over the subject matter or exhaustion of administrative remedies, is that the honor system allows a cheating cadet to resign prior to placing himself in jeopardy of a court-martial. The resignation is by honorable discharge and is "voluntary." It is unclear just what would happen if a "found" cadet refused to leave or tender his resignation after the Department of the Army affirmed a finding of guilty. should be up to defense counsel when a cadet is first referred to the Law Department to advise his client whether that course of action is available. If there is no option, defense counsel may be correct in asserting that lack of a statutory ground for involuntary separation, Without the option of a court-martial, would invalidate the separation.

As these issues developed in 1976, defense counsel turned to the civilian courts for relief. The army had time on its side. The cadets found guilty apparently were not allowed to attend class. If enough time went by, they would be behind their contemporaries, and under the rigid academic requirements -- both scheduling and content -- it would be impossible for a court to order reinstatement with no penalties, short of making a major ruling of an. equitable nature. Civilian courts were reluctant to become involved in what was perceived as a military matter. Since the honor system did not violate due process, since extraordinary measures were instituted to ensure fundamental fairness, and since an administrative hearing with counsel was guaranteed, the federal courts declined to intervene or enjoin the proceedings. Ringgold v.United States, 420 F.Supp. 698 (S.D.N.Y. 1976). In Alt v. Berry in the Court of Appeals for the District of Columbia Circuit (No.76-2218), a temporary restraining order was denied, and a stipulation of dismissal without prejudice was entered in January.

The United States Court of Military Appeals listened to arguments ostensibly on jurisdiction (Harms v.USMA., No. 76-58). Defense counsel added something on the merits to illustrate the abuses they believed required extraordinary intervention. That court denied the petition without prejudice until after the sanction of dismissal was imposed and after exhaustion of administrative remedies (including court martial?). One judge dissented, stating that the court did not have jurisdiction now and would not have it in the future because the cases did not arise under the Uniform Code of Military Justice.

Defense counsel argued that the effect of a separation is punitive. Separated cadets are denied a career in the army, the prestige of being a graduate of West Point, and of having a date of rank ahead of their R.O.T.C. contemporaries. Separation also would deny them a free education, less pain and suffering. But most of the separated cadets received honorable discharges, and steps are taken to protect their identities. (See Department of the Air Force V. Rose, 425 U.S. 352 (1976), for a discussion of the extent of the protection.) Neither does there seem to be a bar to a separated cadet's enrolling in R.O.T.C. and receiving his commission in that manner. The benefits of a military career, moreover, do not vest until commissioning. Time at West Point is not considered time on active duty for either computation of base pay or for qualification for Veterans Administration benefits. An argument based on an irregular taking of a property right that is prospective in nature is tenuous.

Two Reports Issued

While the press, the army, and defense counsel were busily hacking away at each other, Secretary Hoffmann was awaiting two reports he had requested. One was the report from the special advisory panel, with its "sensitive, nonintrusive" look, chairmanned by Frank Borman, retired astronaut and present head of Eastern Air Lines. The other report, less discussed, was prepared by Bland West, deputy general counsel for military and civilian affairs, and Hugh Clausen, chief judge of the United States Army Court of Military Review.

Sons of West Point who cannot or refuse to believe that the system possibly could have gone sour should read the Borman commission report. The revelations in it are sobering. The commission points to an increase in popularity of the attitude that honor violations were just one more method of "beating the system." It states that this attitude seemed to be encouraged by actions taken by academy and army personnel following several notable honor cases.

Two specific cases mentioned in the report were viewed by the cadets as unwarranted meddling in the honor system, which is supposed to belong to the corps of cadets. The first involved a cadet who had been found on honor but who remained at West Point after command influence voided the officers' board concurrence. The ranking member of the board of officers, so goes the statement of my reliable source, wrote "open and shut case" on the cover sheet of the folder before passing it on to his subordinates. The cadets "silenced" the accused, believing that the honor committee had been correct and that the cadet had returned to the corps on a technicality." The subsequent uproar in the press forced the corps to abandon officially the sanction of the "silence."

In the other case, also reported heavily in the press, a plebe (freshman) lied about his reason for crying and the honor committee found him guilty of lying. The superintendent overturned the committee and the board of officers and reinstated the cadet. Several members of the honor committee resigned in protest over what they perceived as unwarranted meddling. Another reason cited by the commission for the apparent lessening of respect for the system and the code was the continuing and expanding use of them as a method of enforcing regulations. Twenty years ago the honor code and its system applied only to official statements -- "present or accounted for" type of statements. Now the system pervades official, academic, and even social statements and duties. Cadets were taught in the mid-1960s that it was proper to compliment a host or hostess on the quality of food, regardless of its level of edibility, but that it was improper to tell an ugly blind date that imaginary official duties would prevent seeing her again that night.

As honor and regulations became more entangled, a cadet perhaps could consider himself safe from committing an intentional honor violation by simply failing to ask whether the contemplated action was an honor violation or a violation of regulations. The Borman commission also noted that while cheating on the E.E. problem was widespread, several of the cadet companies (living quarter organizations containing members from all four classes) had no incidents. Some of the cadet organizations fostered a "cool on honor" attitude through peer pressure, by example for underclassmen, and through the cadet rating system, in which members of a company rate their classmates and all members of the under class ostensibly according to desired military traits. Impressionable underclassmen quickly would learn how to please superiors.

The commission also criticizes the unanimous twelve votes to convict, under which guilty cadets go free on eleven-one votes. One cadet found guilty in the 1976 scandal had been found innocent on eight previous occasions for other offenses. At least one dishonest former honor committee member who "fixed boards," and who is now serving in the armed forces, was uncovered by the Borman commission. With allegations like these, including the involvement of several cadet honor representatives in the current scandal, it is small wonder the superintendent established the internal review panel. The report indicates that the allegations of bribery and other serious offenses are still under investigation by the Department of the Army.

The other report, which I shall call the West report, studies allegations by the defense counsel of command influence, meddling, and bias and discusses allegations of unethical conduct raised by several academy officials, including Brig. Gen. Walter F. Ulmer, Jr., then commandant of cadets (sort of a dean of students). The report includes quotations from the press of defense counsel statements and quotations from statements made to the accused cadets by academy officials at several assemblies. Defense counsel on at least one occasion were denied permission to attend at least one of these sessions.

Defense Sometimes Overstated

The report concludes that the remarks of the defense counsel occasionally overstated the case. They may have been used in the heat of the moment. Certainly they did not approach sedition, as some academy officials have alleged. In the cool light of hindsight, says the report, the words used at press conferences or during interviews may have been chosen imprudently. But there was no unethical conduct involved. The report hints that defense counsel may have been overzealous on occasion. One by affidavit charged that his request for an extension of his tour of duty had been approved and then revoked. The report maintains that the approval was more of a "we will see what we can do" thing. The decision not to extend the officer, who has since left the service, was based on a ground that, for personnel management reasons, the officer could better be stationed elsewhere. Incidentally, it was made clear to all defense counsel -- those stationed there and those assigned there for temporary duty -- that they would not be transferred until all proceedings involving their clients had been completed.

Another defense attorney managed to have an efficiency rating raised since the reviewing officer had not followed official policy during the rating. The rating officer was told that an isolated instance may be noted but not used as the basis for the entire rating. The unethical conduct charges raised by some academy officials also were discussed. One defense attorney was criticized in the report for the use of "cheap trial tactics." A cadet had told him that X, a member of the honor committee, had been bribed. Cadet X otherwise enjoyed a spotless reputation. During an interview with another cadet, the attorney said that Cadet X had confessed. The cadet said, "Really?" and the attorney tapped a tape recorder. The cadet told someone about the incident. It turned out that there was no confession on the tape. The attorney argued that there was nothing wrong with tapping the tape recorder since he never said he had a confession on tape.

From time to time the defense attorneys were accused of fighting the system instead of defending their clients. To the chagrin of at least some of their clients, defense counsel released petitions and affidavits in which accused cadets had made statements about other cadets. The Borman commission suggests that attorneys be assigned to West Point exclusively as defense counsel to prevent a conflict between their duty as teachers at the institution and their duty to their clients. The Borman commission's suggestion that the unanimous vote be eliminated has been accomplished. The corps of cadets recently changed the honor system drastically, at least in terms of change at West Point. A ten-two vote is now required to convict, and the board of officers and honor committee hearings have been combined. Counsel is allowed to be present. The internal review panel is gone.

The Borman commission, the defense attorneys, and many cadets and West Point graduates have criticized the increasing use of the honor system to police cadets. The academy is instituting changes in the academic department to cut down on test situations that almost invite cheating. The commission recommends that all separated cadets be reinstated immediately. The commission felt that ethics classes, honor instruction, and enforcement had been lacking and that the cadets should be allowed to return. The secretary of the army, however declined to follow this recommendation, pointing out that separated cadets knew what they were doing, knew it was wrong, and knew what the consequences were. He added that the separated cadets could begin applying for readmission this summer. They must take some of the blame.

There also has been discussion of the single sanction of separation. Some believe it is too harsh, while others argue that sure punishment will deter. The burden of proof for conviction is "substantial evidence." In order to find a cadet guilty of an honor violation, then, the evidence must show substantially that the cadet committed the offense that he knew or should have known that he was committing an honor violation and that he intended to do the act. The present chairman of the honor committee recently pointed out that 20 per cent of the usual honor violations--those other than the ones involved in the current scandal--that reach the full hearing stage result in a finding of guilty. Perhaps, once again, we are trusting to a jury of sorts to decide just what the truth is. The accused also may select some members of the board that will hear his case, not by name but from among his peers.

The number of cadets separated as a result of the honor scandal is 151. Of those, 126 have applied for readmission in July of this year. After this admissions process is completed, separation will again become the sole sanction for committing an honor violation, and the extraordinary readmissions policy will not be resurrected. Secretary Hoffman, just before the change in administrations, directed that the regulation requiring separation be changed to read "shall normally be separated" (italicized word added), thereby vesting discretion in the honor committee and the superintendent.

The names of cadets listed in affidavits at the request of defense counsel, some of which were released to the public to show the extent of the scandal, totaled 559. Sufficient or available evidence for presentation to the honor committee was found in five cases. Allegations involving recent graduates were referred to the Department of the Army. Evidence as to the other 554 was deemed insufficient or unavailable.

Institution Survives

Many of the issues raised by the defense counsel are now moot. Many of the charges critics of the honor system have made have been answered by changes to that system. The adverse publicity, which the army in general and West Point in particular may believe was unwarranted and generated by an unsympathetic and even hostile "group," may have done the institution on the Hudson River some good. It still stands in spite of all those slings of outrageous fortune. And there will be parades this spring (I marched in about four hundred of them while I was there).

There is one memorable, if relatively unpublicized, statement to come from this affair. According to affidavits from defense counsel, Brig. Gen. Ulmer said, "The problem with the army is it has too damn many lawyers." Having recently looked for a job again, I can sympathize with him.


Author's Postscript August 10, 1998

While the cheating scandal's effects on the Honor Code were being discussed on the WP Forum this year, I mentioned this article, and some of you asked me to post it. Here it is. As it is copyrighted by the American Bar Association, please don't circulate this further than what would be considered "fair use" under Federal copyright law. As I mentioned to a couple of you, when I was collecting information for the article, the Dept of Army and USMA public affairs, particularly the junior officers who were WP grads, were surprisingly forthcoming and helpful, even referring me to members of the defense team for the "other" perspective. I also got what I considered to be nonpublic information from sources on both sides that showed that the extent of honor problems outside the cheating scandal were just as serious and more widespread than the cheating scandal problems indicated, but, due to the editors' pens and a reluctance on my part to do muckraking outside the cheating scandal (or to expand the article to a book), I used only publicly available sources for the article and focused only on the cheating.

I also worked for a congressional committee in 1972-1974 and had some experiences in which individual offices wanted me to review the official records of some NON-EE cheating (or stealing) honor cases in 1976 when I was working as a law clerk for a Federal judge. I left those out, too, but they confirmed what the Borman Commission found -- it was pretty clear that some members of the Honor Committee were fixing honor boards. Since Dept. of the Army was conducting criminal investigations at the time, I begged off, of course.

If I were writing this article today, this article would be much more critical of the level of "command influence" and on the reluctance of senior officials to pursue evidence of potential wrongdoing in NON-EE cheating (or stealing) cases that came to light during the cheating investigation But then, I didn't have ten years' experience of providing legal advice to criminal investigators. (Currently, am the Counsel to the Inspector General for the Board of Governors of the Federal Reserve System.)

After publication of the article in 1977, I did get a call from General Ulmer who (I believe) was at Fort Hood at the time (I think he got a second star there). He spent an hour on the phone with me, walking line by line through the article and on more than one occasion told me that I was hurting my school and damaging reputations unnecessarily. I was dismayed by his suggestion that I was somehow being untrue to my school and that my article would damage both West Point's reputation as well as individual reputations as I intentionally used only publicly available sources in the article itself and kept out names, including even Pelosi's, and specific cases in which a description of the facts might lead a determined amateur sleuth to hive out who the miscreants were.

In fairness to him, I will admit that the quote at the end of the article did NOT get made during the cheating scandal episode. To set the record straight, several independent sources, on both sides, said he said it earlier, but it came to light during the cheating scandal inquiry. An alternative quote attributed to him was, "The damn lawyers are ruining the Army." I presumed that it was a variation of the quote I used and not a separate one so did not mention it. Had his quote not been so "quotable" in a magazine for lawyers, and had it not been verified by several sources on both sides of the scandal, I would not have used it. I also must say that the phone call was the only contact I had with him, and several Forum members have commented to me that the call was out of
character for him.

Having been on the inside of a few controversies (the Franklin National Bank failure case in 1978, the Chrysler bailout in 1980, a couple of federal debt crises), too often facts matter much less than appearances, and I've often wondered if the public heat focused on him was justified or, like a good soldier protecting his command, had he decided to act as a lightning rod to keep the nonfactual, and hence unjustifiable, thrashings from hitting the institution itself. It appears it was the latter, and that is just fine with me.

Although a follow-up article was asked for, I decided not to write it since the open issues at the time of publication of the original one (how the military courts would rule, how any courts martial for the criminal investigations turned out, etc.) were resolved quietly and noncontroversially, which is to say, they didn't raise any new and different material facts or involve any new and interesting legal issues. I also saw nothing to be gained by actually reporting on how specific people got punished as, in retrospect, the Army and USMA, but particularly the cadets themselves, handled the readmissions and the changes to the USCC regs and the honor code very efficiently and effectively, in my opinion.



The following is LTG Ulmer's recollection, 08/03/98, of his statement quoted above:

Jack, I very quickly went over the honor article. I must confess I read your note so quickly that I'm not sure who is posting what where! Most of this is old stuff, but in any case, I never ever said "The goddam lawyers are ruining the Army." I did say, "GD it, the lawyers are not running the Army" during a conference with my staff in Washington Hall when somebody mentioned we could not do something because of possible lawyer response, etc. I cannot recall the particular conversation from Fort Hood but no doubt it took place. But the lawyer activities were in some instances ethically questionable to say the least. Thanks for informing me. (And send this message anyplace that you have time and inclination to do!)

Jack Price
WP-ORG



Author's Bio
                            John Harry Jorgenson
               Counsel to the Inspector General
                   Board of Governors of the
                    Federal Reserve System
                     Washington, DC 20551

 1977 to the present -

      Employed by the Board of Governors of the Federal
      Reserve System.

      Since August of 1992, I have served as Counsel to the
      Inspector General providing legal advice on internal
      audit operations and on criminal and administrative
      investigations.

      Prior to August 1992, my responsibilities included legal
      support of monetary policy operations (discount for
      depository institutions, currency issuance and
      collateral, reserves on deposits, open market
      activities, payments system, and fiscal agency
      activities); government loan guarantee programs
      (Chrysler Corporation Loan Guarantee program); failing
      depository institutions (Ohio and Maryland thrift
      problems, Continental Illinois Bancorp restructuring,
      Franklin National Bank litigation); and permissible
      activities of banks and bank holding companies. Also
      taught courses for the Federal Reserve's examiners'
      schools on regulatory reporting requirements and "truth
      in savings".

 Pre-1977 -

      While in law school, I worked for the Joint
      Congressional Economic Committee (1973-1974) and as
      Assistant National Service Director for the Paralyzed
      Veterans of America (1974-1975). After law school, I
      clerked for a U.S. District Court judge (1975-1977) and
      for the Motions Panel for the United States Court of
      Appeals (1977) for the District of Columbia.

 Education -

      In addition to a law degree (Juris Doctor 1975) from
      Columbus School of Law, Catholic University of America,
      I also hold a Master of Science in Foreign Service
      (1972) from Georgetown University and a Bachelor of
      Science (1967) from the United States Military Academy
      at West Point, New York.

 Direct dial   (202) 973-5019
 work - jorgensh@frb.gov

 Mail address  STOP 300
                Board of Governors of the
                Federal Reserve System
                Washington, DC 20551