McKinney Court-Martial Unfurls List of Army Sex Cases

Case histories of 10 generals and 23 other Army personnel accused of sexual misconduct were released by a military court Thursday as the Army’s former top enlisted man tried to build a case that the service has targeted him with unfairly harsh prosecution.

In court papers, attorneys for former Sgt. Maj. of the Army Gene C. McKinney contended that the absence of court-martial treatment in any of the 33 cases--described without naming those involved--proves that McKinney is a victim of selective prosecution.

McKinney, a decorated 29-year veteran, faces court-martial on 20 counts, including indecent assault, obstruction of justice, assault and battery and communicating threats, all based on allegations from six women.

His lawyers contend that although the Army disposed of most of the 33 other cases with written reprimands, McKinney was singled out because he was an enlisted man and because the Army needed to “make a statement” in the wake of the scandal involving mistreatment of female Army trainees by drill instructors at the Aberdeen Proving Ground in Maryland.

The possibility that the Army might release such lists sent anxiety through the service in recent weeks. The Army has resisted disclosure, saying innocent people could be harmed. Although the military court excised names from the list, some present and former senior officers can be identified by such details as their rank and date of retirement.

One, for example, is Maj. Gen. John Longhouser, the former commanding general at Aberdeen, who last June agreed to retire at the lower rank of brigadier general after disclosure that he had committed adultery while separated from his wife five years earlier.

To prove their contentions about selective prosecution, McKinney’s lawyers had the court direct the Army to compile a list of all of the service’s generals who had been investigated on sexually related charges since the present head of the military district of Washington, Maj. Gen. Robert Foley, took his post in 1995. McKinney was based in the district at the time of the alleged offenses.

The Army was also ordered to compile a list of all senior enlisted personnel and officers in the district who had been investigated for alleged sexual misconduct while under Foley’s command.

The list of 10 generals involved five cases of consensual adultery, one case of spouse abuse, one case of improper treatment of subordinates, one case of assault and battery and two cases in which investigators looked for, but did not establish, adultery.

Most of the punishments involved memos of reprimand or memos of admonition, a milder sanction. The adultery cases, for example, were handled with three memos of reprimand; one order for counseling by a senior officer that led to retirement; two other retirements, including one at a lower grade; and one session of counseling by a superior officer coupled with an unfavorable performance report.

Of 23 cases specifically involving the Washington military district, McKinney’s attorneys pointed out that 10 involved charges similar to those against McKinney but that did not result in court-martial.

McKinney’s lawyer Charles W. Gittins continues to hold his own list of six Army generals allegedly investigated for sexual misconduct and not court-martialed. Gittins told Col. Ferdinand Calvi, the military judge at a hearing at Ft. Belvoir, Va., that he intends to keep those names secret, although he disclosed one of them to reporters last month.

McKinney’s lawyers pointed out that no Army general has been court-martialed since the military justice code was legislated in 1951. “There are two standards of military justice: one for officers and one for enlisted personnel,” the lawyers contended before the court.

Army lawyers acknowledged that the complaints about two-track military justice have been around for a long time, but they argued that none of the 33 cases involved allegations as serious as McKinney’s. “Selective prosecution” can be proved only when defendants facing similar allegations receive different treatment.

The Army said McKinney’s lawyers did not offer any examples of a soldier who “committed multiple indecent assaults, with three different soldier-victims; assaulted and battered a commissioned officer; wrongfully communicated two threats and obstructed justice on two occasions” and was not prosecuted.

Specialists in military justice say arguments claiming selective prosecution usually fail because it is so difficult to prove that justice has been applied differently to defendants in similar situations. But complaints of a double standard may help generate publicity for McKinney’s case, they said, and eventually result in less severe punishment.

The military has been dogged with controversy all year over whether punishments for sexual misconduct are fair and evenly applied to all ranks.

The issue was debated over the fate of Kelly Flinn, once a highly touted Air Force bomber pilot. Charged with adultery, lying and disobeying orders, Flinn ultimately left the service rather than face a court-martial. Last spring, the candidacy of Air Force Gen. Joseph W. Ralston for chairman of the Joint Chiefs of Staff was abruptly ended after disclosures that he had had an adulterous affair 13 years ago.