

Air Force prosecutors want to bury TSgt. Aaron Allmon under the jail. Not for murder, rape, or arson. Not because he turned on his countrymen or misbehaved before the enemy. Rather, Allmon stands to be condemned in a felony court martial because he allegedly failed to observe appropriate social boundaries.

According to a report by the Washington Times, the veteran combat correspondent will stand trial starting next week based on a series of complaints from female co-workers alleging that he inappropriately touched them and made crass comments. None of the accusers has alleged genital touching or “fondling.” No one has complained Allmon’s behavior was coercive or forcible. He’s not accused of lewdness or of improperly wielding his rank or position power to gain sexual access to subordinates. Nevertheless, he’s facing the kind of sentence ordinarily reserved for violent predators.

What is alleged is that Allmon made unwelcome contact … in one case touching a knee, in another case, part of a woman’s back. He is said to have kissed a woman on the forehead and shoulders without her consent. It’s also said that Allmon made inappropriate remarks, in effect “hitting on” the women in his office in a socially unacceptable manner.

To be clear, the allegations aren’t trivial. If accurate, they demonstrate a pattern of workplace sexual harassment making Allmon culpable for misconduct and certainly subject to discipline.

But given the nonviolent nature of the alleged offenses, what seems to be an absence of malice, and the fact none of his victims seem to have been traumatized by his alleged actions, there is something deeply wrong — and deeply frightening — about the severity of the charges the NCO faces and the consequences that will attend if he is found guilty.

Is Aaron Allmon being used by prosecutors and the chain of command to show seriousness in dealing with allegation of sexual-themed misconduct? Have prosecutors abandoned ethical moorings in over-charging him because of political pressure upon the Air Force to clean up its sexual assault problem?

The questions are fair given the service’s noticeable struggle to conduct its own justice system of late. The rights of individual airmen are increasingly cast aside by often intemperate and judgmental authority figures who see investigations and disciplinary proceedings as free-floating enforcement regimes for company policy rather than serious deliberations in search of truth and subject to limitations on official power.

This struggle is captured vividly by the “Miley Gate” scandal, in which three instructor pilots have been permanently grounded, issued career-ending reprimands, and face punitive discharge — their lives made rubble — all because texts from their private cellphones were pre-judged by commanders to be indicative of drug abuse. When the facts disproved those initial suspicions, commanders used administrative end-runs to deliver severe punishments without obeying rules of evidence or due process protections. Those same commanders struck back against anyone who supported the accused officers.

The Miley Gate cases are currently under review by the service’s Inspector General, with a report due to the Chief of Staff in the near future, though it’s important to note that the review is a product of pressure from legislators and journalists rather than a self-initiated action.

Allmon’s case features a key similarity with those cases and many others: a fundamental mismatch between the nature of the accused conduct and the severity of punishment. In the Laughlin cases, when all of the evidence was weighed, commanders were left with nothing more than private communications deemed inappropriate according to the service’s 24/7 “professionalism” standard. For that, they were stripped of their livelihoods and reputations, by any standard an extreme response.

Allmon’s case rings in similar tones. What he’s accused of doing isn’t nothing, but it isn’t everything. Yet that’s what he stands to lose.

Even if we assume every allegation against TSgt. Allmon is true, which he and his legal team vehemently deny and will contest in what promises to be mostly a “he said/she said” trial, there are several weighty questions worth considering as the matter unfolds.

Has the Air Force collapsed the distinction between rape and sexual harassment? These are two different forms of conduct with different levels of intentionality, criminality, and victimization. They earn different levels of punishment in our system. The latter is primarily an issue of workplace appropriateness while the former is a violent felony.

The two have traditionally been legally distinct, but cases like this one seem to be eliminating the operative difference. If an airman convicted of touching someone’s lower back in the process of making a pass ends up with the same punishment as another airman convicted of forcible rape, the meaningful difference between the two is obliterated. This would create a range of serious consequences for the justice system, not least of which the loss of basic legitimacy.

Are there more deep-seated problems in the Minot Public Affairs office worthy of command attention? The Washington Times article details issues of unprofessional conduct in the Minot office where Allmon worked. Is it possible that professional boundaries in the office had been dissolved to a degree that would have made Allmon’s conduct normal under the circumstances? This matters, since he can’t be convicted without demonstrable intent to harm.

The photo below, taken during a visit to Minot by Brig. Gen. Kathleen Cook, seems to show a chummy, tight-knit office. Several people seem to be incidentally touching one another, which raises questions about what made some touching in the Minot criminal rather than ordinary.

Is there a problem with prosecutorial ethics in the Air Force? Consider the following series of statements from Lt. Col. Brendan Tukey, who presided over the pre-trial process considering the charges against TSgt. Allmon.

“Given the sheer volume of charges in this case, and the apparent tendency of that volume to artificially exaggerate the criminality of the accused, it is entirely possible that the trial judge will simply dismiss the offending specifications. “The charging scheme exaggerates the criminality of the accused (as charged the accused faces 20 specifications carrying a maximum punishment including 130 years of confinement) for no real purpose. “In many of the individual specifications, it could be argued that the accused was not so much motivated by sex or a desire to humiliate or degrade as simply being socially maladroit and crass.”

What Tukey is saying is that while probable cause exists to send the accused to trial, there is gross over-charging and maybe even misapplication of charges inconsistent with the evidence in the case.

This highlights a tension ever-present in the Air Force legal system (and in fact the US criminal justice system): prosecutors are granted broad discretion in choosing whether and how to charge defendants, and this discretion is granted on the assumption of adherence to a high ethical standard and sound judgment. When prosecutors, for reasons of political or command pressure or a simple adversarial drive to win, abandon ethics and judgment and simply “throw the book” at the accused, the system breaks down. Injustice occurs and legitimacy erodes. That’s not to say this necessarily happened in the Allmon case, but given Tukey’s statements and the surrounding context, it’s not an unreasonable suspicion to explore.

Is the chain of command criminalizing mental illness? Even if Aaron Allmon did everything it is said he did, it’s possible he was acting out of illness rather than criminality. This may be a question for a jury, but it’s first a question for the chain of command and for prosecutors as they weigh what’s best for the Air Force and how to expend limited resources.

There is evidence that Allmon suffered from PTSD, depression, and anxiety as a result of multiple combat deployments that left him both physically and mentally broken. It’s not clear to what extent he was given the care he required to heal.

It’s worth pondering how, after so many long years of deploying and redeploying airmen, the chain of command remains manifestly ill-equipped to distinguish between criminality and mental illness … and whether any policy approach can ever improve this problem without a corresponding change in culture. Individuals suffering from mental conditions are too often vilified and stigmatized rather than given treatment and a chance to heal. Is this partially or predominantly the case with Allmon?

Can any airman accused of a sex-related infraction expect a fair process? For years, the Air Force and its sister services have been hounded by Congress for their failures to address sexual misconduct. That hounding has translated into intense political pressure that threatens the interests of the bureaucracy, which has in turn amplified it to a level capable of warping justice.

When everyone from the President and Secretary of Defense to the service chief and local command chain is constantly and relentlessly insisting that sexual misconduct be dealt with swiftly and severely, and when rhetorical habits have eliminated any distinction between types and degrees of sexual misconduct, it arguably becomes nigh on impossible for an accused member to expect that his fate will be shaped by a fair-minded, objective prosecutor. It also makes it less likely that a panel of truly impartial jurors can be seated, given that such panels are comprised of airmen subject to the same message bombardment that seems to be pushing prosecutors and commanders into questionable decisions. It wasn’t long ago that a military judge found Unlawful Command Influence in an Air Force sexual misconduct case, and it’s not clear what the service has done to remedy that finding.

It was just earlier this year that Kayce Hagen wrote on these pages about the warping of the Air Force social environment as a function of its sexual assault prevention program. She worried that the environment was making it possible for one airman to ruin another’s life with a mere accusation, and that this reality threatened to tear the service apart at the elemental level by making everyone irrationally fearful of offending a teammate.

If prosecutors get what they’re asking for in the Allmon case, they might be accelerating Hagen’s vision toward prevailing reality, while giving one troubled NCO the rest of his life to think about it.