Fort Belvoir, Virginia–Following a multi-year saga, this LTC Retired finally can enjoy his retirement in peace, after the convening authority dimissed two charges referred against him: one for sexual assault, and one for assault consummated by a battery on his son.
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Near the end of his active-duty career, an Army LTC began dating an Army MAJ. Life progressed quickly, with consensual sexual activity on the second date, followed by the same on the third date, after she packed a bag to stay at his place. It all came crumbling down when she left his place the following morning after a dispute about their future.
She deleted him from the dating app they used, he called her a mean name, then she complained to friends and family.
He didn’t know it, but then everything changed… she deleted messages confirming everything was consensual, reported to SHARP as a victim, and sold herself to Criminal Investigation Division (CID) agents as a survivor of a scary LTC with PTSD and guns. He was days away from retiring, then they put a flag on him, keeping him in place while they sorted out the allegations.
OSTC prosecutors jumped in, but the Preliminary Hearing Officer found no probable cause that he committed a crime. So the convening authority dismissed the case, and he retired.
Then started the fireworks. She filed complaints against everyone: OSTC lawyers, brigade lawyers, commanders, anybody who in any way touched the case. Promotions were put on hold. Investigations ensued… (But then, it turned out everyone had done their jobs.) This was also around the time the Secretary of the Army fired the first Lead Special Trial Counsel (many believe for just not being over-zealously victim-centric).
So a new Staff Judge Advocate entered the picture, and a new convening authority brought the case back to life, resurrecting the charges against the now retired LTC. To strengthen the clearly false sexual assault case, they reached back and found an interaction he had with his son years before that his leadership knew about but never rose to UCMJ action (because parents have legitimate defenses in raising children). The now adult son did not want to participate in a prosecution, but because he was now military, the prosecution could make him…
The client was represented by Mr. Nathan Freeburg, and because the Unlawful Command Influence was engulfing the military justice system, the client requested Individual Military Defense Counsel (IMC or IMDC) from a sister service: that’s where Mr. Tolin joined the team.
Mr. Freeburg and Mr. Tolin filed numerous pre-trial motions, including a motion to dismiss for improper referral. Mr. Tolin had the convening authority admit, under oath, that he only considered what the SJA had given him and never considered whether the evidence was sufficient to obtain and sustain a conviction. This was a big deal, because at the time of referring the case to a general court-martial, the convening authority was required to consider that under Rule 601(d)(2), Rules for Courts-Martial.
The whole point of adding Rule 601(d)(2) is to not allow convening authorities to just take service members to court-martial when there is not sufficient evidence to support doing so. The Military Judge did not directly dismiss the case, as Mr. Tolin argued, but he did order the convening authority to actually accomplish Rule 601(d)(2) before moving forward.
Once that happened, the convening authority dismissed the case, since it shouldn’t have been brought to begin with. This Army LTC Retired can now breathe easy, knowing he has finally been exonerated, and he can enjoy the retirement he earned.