A Marine infantry officer and former battalion commander who was relieved of command for demanding on social media that top military leaders be held accountable for the chaotic Afghanistan withdrawal is now attempting to be the greatest barracks lawyer of all time.
Marine Lt. Col. Stuart Scheller appeared in a Sept. 16 video claiming that he intends to charge Marine Gen. Kenneth McKenzie Jr., head of U.S. Central Command, with dereliction of duty. In the video, Scheller said he was continuing to speak out even though it could jeopardize a deal that he claimed the Marine Corps had offered him, under which he would accept nonjudicial punishment, resign his commission, forfeit his military pension, and accept a general discharge under honorable conditions rather than face a court-martial.
Scheller argued that McKenzie needs to be disciplined for leaving Americans and military equipment worth millions of dollars behind in Afghanistan because military planners initially assumed that Afghan troops and police could defend Kabul from the Taliban for days or weeks once the evacuation began.
“I have read the entire UCMJ [Uniform Code of Military Justice] in the last two weeks of my purgatory – all of the punitive articles – and it turns out that all military officers are subject to the UCMJ,” Scheller said in the video. “Because it appears to me that no general officers are willing to hold each other accountable, I am submitting charges against Gen. McKenzie for his bad assumptions – not because I’m vindictive, but because the senior leaders need to be held accountable to the same standard as us.”
On his Facebook page, Scheller elaborated that he plans to file 13 specifications of the charge against McKenzie – one for each of the service members killed in the Aug. 26 suicide bomb attack on Hamid Karzai International Airport’s Abbey Gate.
Scheller also posted what appears to be a text message exchange that he had with an unnamed military attorney, who told him: “I advise you not to pursue this idea of preferring charges against a senior commander as it will only cause you prejudice and potential legal harm.”
In the video, Scheller vowed to file the charges through his chain of command and directly to “the former Raytheon board director, Secretary of Defense Lloyd Austin.” He also said he would file a complaint with the Department of Defense Inspector General’s Office.
The Marine Corps is not providing any information on Scheller, who is under investigation by his chain of command, said Capt. Sam Stephenson, a spokesman for Training and Education Command.
According to a CENTCOM spokeswoman, Scheller’s legal argument that all general officers are subject to the same military laws as other service members – and thus he can file charges against McKenzie – is faulty.
“Although any person subject to the UCMJ may prefer charges, only a commander who has court-martial convening authority may refer those charges to a court-martial,” said Air Force Maj. Nicole Ferrara.
Service members have the right to make allegations of wrongdoing against other troops, not to charge them under the Uniform Code of Military Justice, said retired Marine Lt. Col. Gary D. Solis, who served as a military judge and a law professor at the United States Military Academy at West Point.
Under the military’s legal system, troops can submit a claim that other service members have committed wrongdoing by filling out a DD Form 458 and forwarding it to the summary court-martial convening authority, Solis explained.
“Of course, that allegation has reference to a specific charge in the UCMJ, but that doesn’t mean that: I said it; therefore, you are charged,” Solis said. “That means I can now initiate the process that would lead to a formal charge.”
While anybody in the military can obtain a charge sheet, only certain people in the chain of command can initiate charges by signing it, he said. Each command has a designated charging officer. In a Marine division, that person is typically the chief prosecutor.
“Now, I haven’t looked at the UCMJ in a while – in a week or two, and certainly not on this subject – but I’m confident that there are others who can initiate charges as well,” Solis said. “But those others do not include a corporal in a fire team in a squad in a platoon. It has to be somebody with some legal affiliation.”
The charging officer must have probable cause that the person in question committed the offense, such as written sworn statements taken by investigators or commanders, he said.
In layman’s terms: Service members can report wrongdoing, but only charging officers can begin the legal process, and only if they have evidence.
From a purely impartial standpoint, Scheller’s claim that McKenzie was derelict in his duties appears to be a little light on the evidence side. Scheller justified filing charges by claiming that McKenzie said during an Aug. 30 Pentagon news briefing that he had made “bad assumptions” about the situation in Afghanistan.
“I know you are a great American,” Scheller said in the video. “I know you didn’t intend to fail. I know you have served very honorably and are probably a great leader. But that doesn’t absolve you of the accountability of your bad assumptions.”
A check of the Defense Department’s transcript of the briefing revealed that McKenzie did not actually use the words “bad assumptions.”
Here is what McKenzie did say:
“Plans such as this are built upon a number of facts and assumptions, and facts and assumptions change over time. While observing the security environment deteriorate, we continued to update our facts and assumptions.”
“When the evacuation was formerly directed on August the 14th, we began to carry out our plan, based upon the initial assumption that the Afghan security forces would be a willing and able security partner in Kabul, defending the capital or a matter of weeks, or at least for a few days,” McKenzie also said “Within 24 hours, of course, the Afghan military collapsed completely, opening Kabul up to the Taliban’s advance.”
Scheller did not return a request for comment on Friday.
So, it does not appear that Gen. McKenzie has to worry about being handcuffed and advised of his Article 31 rights anytime soon. Scheller, on the other hand, may want to consult an actual attorney before he vows to “bring the whole f–king system down” again.
Update: This story’s headline has been updated to reflect that while service members may prefer charges, only commanders can refer those charges to a court-martial.
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