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Ask the Lawyer: Accepting gift for concealing misconduct violates law

Mar. 12, 2014 - 11:31AM   |  
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Q. If I don’t report a fellow service member’s misconduct and he gives me something for not telling on him, can I get in trouble for keeping his gift, even if I never asked for anything?

A. The scenario you present is wrong on many levels. For starters, depending on what branch of the military you are in, by not reporting another member’s misconduct you could commit the offense of failure to obey a lawful regulation under Article 92 of the Uniform Code of Military Justice.

Secondly, by not reporting the misconduct when you have an official duty to do so, you’re essentially providing a service to the other member. The receipt of any compensation from him or her for such a service would constitute graft, a violation of Article 134 of the UCMJ.

According to the Manual for Courts-Martial, graft “involves compensation for services performed in an official matter when no compensation is due.” This offense should not be confused with bribery, which “requires an intent to influence or be influenced in an official matter.”

As the U.S. Court of Appeals for the Armed Forces noted in U.S. v. Wilson L. McCrimmon (2004), graft lacks bribery’s specific intent element. As such, “graft contemplates personal advantage or gain in a dishonest transaction in relation to public duties” and “sometimes implies theft, corruption, dishonesty, fraud, or swindle, and always a want of integrity.”

A good example of a service member who turned a blind eye to another’s misconduct and consequently committed graft is seen in the U.S. Navy-Marine Corps Court of Criminal Appeals case U.S. v. Jimmy Stubblefield (2004).

A Marine Corps staff sergeant, while serving as officer of the day, found three Marines to be in possession of drug paraphernalia in the barracks. He told them to destroy the paraphernalia and did not report his discovery to the oncoming OOD or to his chain of command.

In return for not reporting them, the Marines initially offered the staff sergeant compact discs and cash, which he declined. However, he later accepted two checks totaling $170 from two of the Marines, and he knew they were being offered in return for his silence.

The staff sergeant appealed his graft conviction at special court-martial, claiming it should be set aside because he accepted the checks after his duty as OOD ended.

The court, however, held that the “appellant’s duty to report the misconduct surely did not arbitrarily end at the turnover. Based on regulation and customs of the naval service, we are confident that the appellant had a continuing duty to report the misconduct in the days following his formal relief of duty,” the court said.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and the founding partner of Tully Rinckey PLLC. Email questions to http://askthelawyer@militarytimes.com/. The information in this column is not intended as legal advice.

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