Ex-Sgt. Major’s Trial Has Army Brass Jittery

The upcoming court-martial of the Army’s former top enlisted man is sending shudders of anxiety through the service because of a growing possibility that it will force public disclosure of the names of dozens of others--including generals--who have been accused of sexual infractions.

In an attempt to prove that their client has been unfairly treated, defense attorneys for former Sgt. Maj. of the Army Gene C. McKinney have compiled a list of six generals who have allegedly escaped punishment for sexual violations. They have forced the Army to provide names of about 30 other senior service members--officers and senior noncommissioned personnel--who have been formally investigated on such charges in the last two years.

So far, the judge in the case has ordered the names and other pretrial information to be kept secret. But with McKinney’s court-martial now one month away, news organizations and other interested parties are considering filing court papers seeking release of the names.

Army officials, already anxious about the 10-month-old case, fear that disclosure of the names could harm innocent people and renew the painful debate over whether high-ranking officers are treated more leniently than their subordinates in such cases.

The issue has distracted Pentagon leadership for the last year. The debate began with sexual-misconduct cases at Aberdeen Proving Ground, Md., and continued with the case of former Air Force bomber pilot Kelly Flinn, who--accused of adultery and disobeying orders--eventually accepted a general discharge rather than face court-martial. In June, the scandal reached top ranks with the disclosure that Air Force Gen. Joseph W. Ralston, vice chairman of the Joint Chiefs of Staff, once had conducted an adulterous affair.

“You can imagine how disruptive this would be,” one Army official said of disclosing the names. “And unfair.”

McKinney, a 29-year Army veteran whose former position is one of the most visible and prestigious in the service, faces 20 counts stemming from accusations by six women who are current and former members of the military. The counts include adultery, indecent assault and obstruction of justice.

McKinney’s lawyer, Charles W. Gittins, has argued that the Army’s decision to take the case to a court-martial shows a double standard, because no Army general has been court-martialed at least since military law was codified in 1951.

On Nov. 6, Gittins gave the court a list of six Army generals who, he alleged, have broken sexual-misconduct rules without punishment. And last month, at the court’s instruction, Army officials filed a list of officers and senior enlisted personnel who have been formally investigated for alleged sexual-misconduct violations in the last two years.

A source said the list included 10 generals and about 20 others of McKinney’s rank or higher who have been investigated since 1995. Some on the list had acknowledged their guilt. Others had invoked their right to make no statements. Still others may have been innocent.

According to this source, the most severe punishment any of the 30 received was a letter of reprimand, and none of them was court-martialed. A spokesman for the Army’s Military District of Washington, which is administering the trial, declined to comment.

Most military disciplinary proceedings are conducted without attracting public notice, so publication of the list could be deeply embarrassing for many of the soldiers involved.

Col. Ferdinand Clervi, the military judge in the case, last month directed Gittins not to disclose the names of the six generals allegedly accused of infractions. At a hearing at Ft. Belvoir, Va., he ordered attorneys not to disclose the names of the women who have accused McKinney of misconduct.

With the concurrence of the attorneys in the case, the judge also ruled that pretrial motions would not be made available to the public.

The judge “didn’t want the [jury] panel tainted by any media coverage,” said a spokesman for the Military District of Washington. “It’s a basic tenet of American jurisprudence.”

But officials at the Army Times, a private newspaper published primarily for a readership of soldiers, is attempting to organize a group of news organizations to go to court to seek an opening of the record.

“They have no legitimate reason to deny access, especially in a case where there’s been so much publicity,” said Donna Peterson, Army Times editor.

The National Institute of Military Justice, whose member attorneys specialize in military law, is likely to join any such action, said Eugene R. Fidell, the group’s president. “I strongly doubt this would be kept secret in a civilian court,” Fidell said. “There’s a public interest at stake here.”

In an interview, McKinney attorney Gittins said he also would join such an effort.

The court has not yet impaneled the jury for the court-martial, which begins Jan. 6. But it has identified seven officers, six enlisted personnel and 15 alternates who may serve on the panel. They have been instructed to read nothing about the case.