Q. Can I get away with giving a vague response to an officers question when a clearer answer would probably land me in trouble?
A. Politicians are renowned for carefully choosing their words during debates so their opponents cannot nail them on a certain point. During interrogations, service members, too, sometimes carefully choose their words to avoid trouble, especially if they are being asked about drug use or improper sexual relationships. They do so at the risk of making a false official statement or false swearing in violation of Articles 107 or 134 of the Uniform Code of Military Justice.
Do not lose sight of what qualifies as a false official statement. A false official statement is an oral or written statement made in the line of duty that a service member knew to be false and that was made with the intent to deceive. With that said, U.S. Court of Military Appeals in U.S. v. Arondel De Hayes (CMA, 1986) ruled that a statement which is technically, literally, or legally true cannot form the basis for such a conviction, even if the statement succeeds in misleading or confusing the questioner. This reasoning applies to both false statements and false swearing, which the Manual for Courts-Martial describes as equivalent charges.
De Hayes, for example, involved an Army private first class who was no longer able to make the monthly installment payments for a stereo he had purchased. He recruited a fellow soldier to take and hide the equipment so he could report it stolen. The other soldier took the stereo when both the private and his roommate were in the field. The private later reported that he had been notified . . . that . . . [his] room had been broken into. The court found this statement to be true. But it would have been a different story if the private reported that his room had been broken into. Further, the court found that the privates statement that he did not suspect anyone in the theft of[his] property to be true, because he, in fact, knew there had been no theft.
However, the court found the private lied when he told authorities that his stereo was missing. Given how missing was defined as absent without explanation from one's home or usual or expected place of resort, the privates statement was untrue. The stereo was not inexplicably absent from his room. Consequently, the court upheld his false swearing conviction.
More recently, the case of U.S. v. Michael Jacquez (NMCCA, 2012) involved a Marine Corps captain who similarly replied to a Naval Criminal Investigative Service special agents question with a vague response. The captain was involved with an adulterous relationship with a woman. After learning that a man had raped this woman months earlier, he reported the offense to NCIS. When the NCIS special agent inquired into the nature of the captains relationship with the woman, he said they were friends and nothing more, or something to that effect.
The captain was later charged and found guilty of, among other things, adultery and making a false official statement. However, the U.S. Navy-Marine Corps Court of Military Appeals set aside the finding of guilt for violating Article 107 and dismissed that charge. The court said that where guilt or innocence can hinge on the inclusion or exclusion of a single word (we are friends vice we are just friends), we are not willing to find the appellant guilty beyond a reasonable doubt when there was no recording or notes of the exact phrasing of the captains response.
Service members charged with making a false official statement of false swearing should immediately contact a military law attorney. Depending on the circumstances, a lawyer could help the service member show the statement was literally, technically, or legally true, that he or she did not know the statement was false, or that there was no intent to deceive in making the statement.
Mathew B. Tully is an Iraq War veteran and founding partner of the law firm Tully Rinckey PLLC. E-mail questions to askthelawyerfedattorney.com. The information in this column is not intended as legal advice.