A review of the Navy and Marine Corps legal Judge Advocate General’s Corps community, ordered after the turbulent SEAL trial of Special Warfare Operator Chief Edward “Eddie” Gallagher, shed light on several ethical and systemic issues that occurred in the community and in some high-profile military cases.
The review, released Friday, broke down issues with the Navy and Marine Corps JAG community, and came with several recommendations on how to retain talented Marine lawyers and prevent some of the issues ingrained within the community.
The review was ordered in August by then-Chief of Naval Operations John Richardson and was done by an executive review panel.
“What we found was encouraging," Marine Maj. Gen. Gregg Olson, the assistant deputy commandant for plans, policies and operations, told reporters at the Pentagon Friday morning. “That said, we’re learning organization we find areas for improvement in management of the community, we certainly got a demand signal for better development, training, education, and how we manage the assignments.”
Mass arrest ‘unlawful’: Case against Marines charged in human smuggling probe takes hits as proceedings start
All the Marines are being tried separately and should have their hearings held one by one in the near future.
But improvements on the legal community preparing itself to support law requirements needed by the Corps as it is "going to fight as part of a naval expeditionary support force in support of the fleet” are also necessary, he said.
Unlawful command influence
Unlawful command influence has been a major issue in the Marine Corps and Navy legal world, occurring when someone with command authority influences or appears to influence the outcome of a trial.
Instances of unlawful command influence have played a part in several high-profile cases falling apart over the past few years, such as the case against several Marines with 1st Battalion, 5th Marines, who were arrested at battalion formation and accused with various crimes relating to an alleged human smuggling ring.
A military judge eventually ruled that the public arrests and the comments made by the unit’s battalion commander ― calling the arrested Marines a “cancer” ― amounted to unlawful command influence. The Corps had to stop pursuing courts-martial and instead discipline the Marines administratively.
To help prevent future issues, the report recommends increasing annual training for unit commanders, focusing on the difference between lawful command influence used to maintain good order and discipline and unlawful command influence.
“There’s lawful command influence and commanders are responsible for good order and discipline,” Olson said. “So we need to make sure that they’re educated and how they can ensure good order and discipline in their units without prejudicing future potential military justice matters."
The culture within the Marine legal community also was pointed to as an area where improvements could be found.
While the report found that the Marine Corps, unlike the Navy, actually had a “healthy learning culture” within the judge advocate community, it suggested that more structured and regular training could benefit lawyers with both services.
The report also suggested the Marine Corps be more proactive at incorporating lessons learned from past mistakes and disciplinary actions received by other judge advocates within the Corps into the training of the Marine lawyers.
A unique Marine Corps problem, pointed out in the report, was the requirement for a Marine judge advocate to be both a good uniformed lawyer and a good Marine officer.
“The most competitive officers complete service-wide resident professional military education requirements and serve in assignments outside their military occupational specialty,” the executive summary of the report read.
“Thus it is a challenge to develop officers who are, simultaneously, fully-ready to serve as both legal professionals and as Marine Air-Ground Task Force officers,” the summary stated.
In other words, every Marine is a rifleman, even if they also have to be a lawyer.
“Overwhelmingly people join the Marine Corps to be Marines, to have a successful and rewarding career as a Marine,” Olson said.
But he did acknowledge that the Marine Corps should look at ways to allow certain Marine lawyers to specialize in a specific location and job, forgoing career promotion opportunity in order to gain job expertise, a concept considered forcewide inside Marine Commandant Gen. David Berger’s planning guidance.
Lack of captains
The report found that the rank most lacking in Marine judge advocates was captain, with the Corps hitting only 79 percent of its target for lawyers at the rank.
More troubling, the study found that the Marine Corps will continue to have an “unhealthy” number of lawyers at the captain rank through fiscal 2025.
“What we found is that we need to work harder on retaining sufficient numbers of captains,” Olson said.
The issue was attributed to the decline of lawyers joining the Marine judge advocate program since fiscal 2016 mixed with the relatively high rate with which captains in the judge advocate program decline career designation.
Between 2017–2019, 84.3 percent of Marine officers offered career designation accepted, the study said, but for captain judge advocates that number was only 70.9 percent.
Captain judge advocates face the same questions as other Marine officers about staying in the Corps or leaving for the civilian world ― but for judge advocates those factors are compounded by law school debt.
“That’s about the time that your families start to come together and the other pressures are, ‘Do I stay? Do I go? Do I move my kids every couple, three years,” Olson said. “And if you look at what percentage of a captain salary that would cause somebody to have to pay back if they say had $150,000 law school debt, that’s not an insignificant factor bearing on the problem."
To counter the deficiency of captain judge advocates the study recommends using financial incentives to help Marine lawyers pay off debt and fees that are almost unique to their position within the military.
In addition to paying for their own law school, military lawyers are expected to pay their own state bar dues to keep their law license.
“I don’t pay for my infantry certification every year, but they do pay to remain in standing with their state bar,” Olson, who rose through the ranks as an infantry officer, told reporters.
The report recommended the Corps consider paying those bar dues as well as going back to a program that allowed the Marine Corps to pay off the law school debt.
As of now the report’s findings are just a recommendation to the Marine Corps and there is no indication on exactly what from the report will be implemented or when.
The recommendations have been brought to the service headquarters, Olson said.