Slander & UCMJ

[babyray10042000]

What is the name of your state (only U.S. law)? Florida

I was wondering if anyone could help me with what is considered slander in the army and if my opinion of someone can be considered slander? Off duty hours I told another individual how I felt about an NCO and during questioning of that Soldier about a Sexual Harrassment complaint I filed against the NCO they told them how I felt about him and are now trying to give me an Article 15 under Article 107 - False Official Statements. Also in order for it to be considred and "official" statement does my opinion fall into that category?! PLEASE HELP!!What is the name of your state (only U.S. law)?

[ERAUPIKE]

Originally Posted by babyray10042000

What is the name of your state (only U.S. law)? Florida

I was wondering if anyone could help me with what is considered slander in the army and if my opinion of someone can be considered slander? Off duty hours I told another individual how I felt about an NCO and during questioning of that Soldier about a Sexual Harrassment complaint I filed against the NCO they told them how I felt about him and are now trying to give me an Article 15 under Article 107 - False Official Statements. Also in order for it to be considred and "official" statement does my opinion fall into that category?! PLEASE HELP!!What is the name of your state (only U.S. law)?

Try explaining your story in a more clear manner.

[quincy]

Slander is the harming of the reputation of another through the making of an oral statement that is false or implies a false fact. A defamatory statement subjects a person to ridicule, public contempt, disgrace, or adversely affects the person in his trade or profession. Opinions that are not "pure", opinions that state or imply false facts, can be defamatory. There is a very very fine line between expressing an opinion and stating or implying fact.

Article 107 False Official Statements says: "Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court martial may direct."

Official documents and statements include all documents and statements made in the line of duty. An intent to deceive is when there is actual knowledge that the document or statement, or certain particulars of the document or statement, are false. Truth is a defense to an Article 107 violation, as is an honest belief that a statement is true (even if it turns out later to be false).

Article 15 is a nonjudicial punishment, limited to punishments for minor disciplinary offenses (ie. breaching a standard of respect) and not for major disciplinary offenses (ie. rape). The officer in charge may inquire into the facts surrounding the making of the statement and can dispose of all charges through dismissal of the charges, or he can choose to punish an infraction, or he can refer the matter to court martial. You will have the chance to be heard.

Article 15 is not a conviction or a trial or an acquital, but an investigation. An off-base minor offense may be disposed of with no further action.

Your worries should be centered on whether the statements you made, in both the sexual harassment complaint and to the soldier off-duty, are true or false, or true to the best of your knowledge.

[DRTDEVL]

Originally Posted by quincy

Your worries should be centered on whether the statements you made, in both the sexual harassment complaint and to the soldier off-duty, are true or false, or true to the best of your knowledge.

No, she shouldn't even worry about that. She is not charged with slander, but Art. 107. By your own post you set the basics of the crime she is being charged with:

Originally Posted by quincy

Article 107 False Official Statements says: "Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court martial may direct."

Official documents and statements include all documents and statements made in the line of duty. An intent to deceive is when there is actual knowledge that the document or statement, or certain particulars of the document or statement, are false. Truth is a defense to an Article 107 violation, as is an honest belief that a statement is true (even if it turns out later to be false).

In the MCM (2008 edition), the elements of the crime that must be met by the prosecution for Article 107 are as follows:

(1) That the accused signed a certain official document
or made a certain official statement;
(2) That the document or statement was false in certain particulars;
(3) That the accused knew it to be false at the time of signing it or making it; and
( 4 ) That the false document or statement was made with the intent to deceive.

As she is being charged for making oral statements to a third party in an unofficial capacity, the prosecution could never make a case that would satisfy the elements required to convict of Article 107 - False Official Statement. This is her defense.

To the OP: Stand your ground. If brought forth to Art. 15, demand trial by courts martial. The Bde legal office will attempt to push forward with a Summary Courts Martial, which is nothing more than a glorified Art. 15. At the proper time, object to the proceedings (you will have a scripted introduction in front of you at the summary courts martial). No JAG worth his salt would press it to special courts martial, as it would be a losing case for him (they like the slam-dunk easy ones like drugs or assault). Your defense counsel will salivate at having an easily winnable case. It will never go to trial.

Good luck, and stick to your guns.

[quincy]

I would certainly not start "salivating" over an "easily winnable case" without knowing all of the facts first, DRTDEVL.

The defense to a violation of Article 107 is the truth or believed truth of the statement that was made, so if one is being investigated under Article 107, the truth of the statement made should be of utmost concern.

If the statement that was made can be shown to be an official statement (and this could be shown if the soldier's testimony is contrary to babyray's "off duty" claim) and if it can be shown that the statement was knowingly false or implied false facts (or leads the investigating officer to question the veracity of the sexual harassment complaint), babyray will face whatever punishments the investigating officer determines appropriate. This can include, should the facts support it, a court martial.

Whether babyray has anything to worry about could hinge on what EXACTLY he told the soldier (and when), what EXACTLY the soldier said to the sexual harassment investigators, and whether babyray was under any orders to not talk about the sexual harassment complaint with others. Although charges on an off-base minor offense may be dismissed, willful disobedience of an order would make a relatively minor offense a more serious one.

SO, I will say once again, what babyray needs to concern himself with is the truth or falsity of his statement to the soldier (and the truth or falsity of his sexual harassment complaint). That is what Article 107 pertains to - knowingly false statements - the statements of which can be subject to disciplinary action (and potentially private tort action if it was not an official statement).

[DRTDEVL]

Yes, this does hinge on whether or not the complaint was made prior to the statement and if a gag order were initiated.

I still fail, however, to see how a comment to a third party after duty hours could be constituted as an "Official Statement".

[babyray10042000]

Thanks for all the replies, to clarify the situation more I will disclose a few more details. The whole things started when I commented in the remarks box on my DA 4856 that I felt that the NCO in question on multiple occasions over stepped my personal boundaries and I felt it was borderline sexual harassment. My 1SG asked me to elaborate and I told him specific events pertaining to my feelings. He told me that to him it didn't sound like sexual harassment. He then asked me to speculate if I thought any other females might feel the same way. I told him him yes, that just 2 weekends ago I saw the same NCO "posted up" next to my female friend (who is E-4) and she was standing a few feet from him with her arms crossed (which looked like a defensive pose at the time) and I asked her if she wanted to leave and we had a brief conversation and we both left together. After this we went into a bar & started talking about how she was warned of certain people on out unit and that's why I told her to "be weary of that NCO because he tends to overstep his boundaries a lot, especially with me." Now after I said that she may feel the same way I did she was brought in to make a Sworn Statement & to my surprise her story was different than the way I had recalled it (this is what they're telling me). They're saying that it has nothing to do with how I felt or how I thought that other female was feeling at the time but now its that I (supposedly) slandered that NCO by telling that female my opinion of the NCO.

I hope this helps clarify a little and I would love to hear more answers now that you have more details.

Another thing is I know they're going to try and charge me with Art. 107 - False Official Statements & my 1SG had told me he wants me to do a sworn statement from that night about what I said the other female. To me this looks like they're trying to "railroad" me into making an Official Statement so they can go ahead and proceed with the accusations. Nothing has been written in paper and I have only given my opinions about all this to my 1SG directly. I feel like that if I hadn't used that female as an example that no of this would have come about and that this NCO is "digging" for something to get me into trouble because he's upset that someone finally said something.

Thanks for listening and any and all comments are welcome!

[quincy]

It would probably be wise to avoid putting anything more in writing. It would also be wise to avoid talking about what you said to your friend.

On your DA 4856, you commented that the NCO overstepped your personal boundaries on multiple occasions and you thought it was borderline sexual harassment. You detailed the incidents of harassment to your 1SG. And you mentioned another female who may have been sexually harassed in a similar manner. None of this is defamatory, because you only said what happened and your interpretation of what happened. What you said was believed by you to be true.

However, the 1SG said to you that the incidents you described did not sound like sexual harassment.

Knowing that the 1SG did not believe the incidents you described were sexual harassment (and knowledge may be proved by circumstantial evidence), any "opinion" you expressed to anyone AFTER you spoke with the 1SG, that stated or implied this NCO sexually harassed you, and any "warning" given to anyone about the NCO AFTER you spoke with the 1SG, could be considered false and defamatory.

Pure opinions are statements that cannot be proved true or false. Any statement made about the NCO sexually harassing you, if you do not have proof of the truth of the statement, is defamatory. The opinions expressed to your friend about the NCO were based on personal incidents believed by you at the time to be borderline sexual harassment, but these opinions could be seen as implying fact. Belief in the truth of the statements made, and truth, are both defenses to slander.

Slander is difficult to prove. If no one heard or overheard your conversation with your friend about the NCO, it would generally be a case of he said/she said - and a successful defamation case cannot be built on that alone. There would be no convincing proof that a defamatory statement was ever made.

You do run into some complications, though. There is a sworn statement from your friend, which is contrary to your version of what was said. And the 1SG has statements from you that could support your friend's version.

The only thing the 1SG DOESN'T have is an OFFICIAL statement from you, making any false statement about the NCO (as the DA 4856 was believed true at the time and what you said to your friend was said off-base), and he would have a difficult time proving any of the statements you made were made with an INTENT TO DECEIVE. In order to bring charges under Article 107, there must be a false official statement and an intent to deceive.

Again, I would avoid putting anything more in writing, and I would avoid all talk of the NCO and what you said about him to your friend. I am not at all sure this will help you avoid discliplinary action, but because the statements you made were off-base and not official, there is the possibility the whole matter can still be dismissed.

Wait for others to post who have more knowledge of the military, and DRTDEVL's advice at the very beginning may be advice you now wish to follow.

Good luck.

[DRTDEVL]

I'll also add that if the 1SG orders you to make a statement about this, don't disobey. Write the following:

"I have been ordered to write a statement in regards to the incident that took place on or about ## XXX, 2009 by 1SG XXXX. At the time of this statement, I have not been advised of my rights under Article 31. I would like to exercise both my right to remain silent, and my right to counsel."

Your rights under Art. 31 are similar to Miranda:

(a) No person subject to this chapter may compel any person to incriminate himself or to answer any questions the answer to which may tend to incriminate him.

(b) No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial.

(c) No person subject to this chapter may compel any person to make a statement or produce evidence before any military tribunal if the statement or evidence in not material to the issue and may tend to degrade him.

(d) No statement obtained from any person in violation of this article, or through the use of coercion, unlawful influence, or unlawful inducement may be received in evidence against him in a trial by court-martial.

By exercising your rights as stated above, the 1SG cannot coerce any statements out of you in regards to this matter to be used in either the investigation or the coming proceedings. You will also be afforded a chance to consult with the Client Services department at your local JAG office. Until you are charged under Art. 15, you cannot see TDS (well, you can, but they are usually too busy to help and will refer you to client services).

Your specific rights under Article 31(b):

Counsel warnings should be stated as follows:

a. "You have the right to consult with a lawyer prior to any questioning. This lawyer may be a civilian lawyer retained by you at your own expense, a military lawyer appointed to act as your counsel without cost to you, or both."

b. "You have the right to have such retained civilian lawyer or appointed military lawyer or both present during this or any other interview."

Any more questions?

[kroam82]

I completely agree with drtdevil. I would also go one step further and go to the area defense counsel. You have that right, you do not need to wait for them to read your rights. The defense counsel will also better able to advise you on which actions to take and it will keep the command off your back as they will not be able to question you without his consent. Good luck from what I've read I do not see any case for false official statements and they probably just hope you are stupid and will take the article 15, do not by any means take it without talking to the ADC first.