Preventive Law at the Battalion Level: Exploiting Successful Command Relationships
An ounce of prevention is worth a pound of cure.1
On July 6, 2011, the Consumer Financial Protection Bureau (CFPB), the Judge Advocate Generals of the Army, Navy, Air Force, and Coast Guard, and the Staff Judge Advocate to the Commandant, U.S. Marine Corps announced an agreement on a Joint Statement of Principles designed to provide more robust protections for servicemembers and their families with regard to consumer financial products and services.2 Four significant goals developed by the CFPB and Judge Advocate Generals include: (1) protecting servicemembers from unlawful financial practices; (2) creating a system for the Offices of the Judge Advocate Generals and CFPB to relay information; (3) finding ways for the two groups to work together; and (4) improving financial literacy training within the armed forces.3
The Joint Statement of Principles recognizes that servicemembers, veterans, and their families are attractive marks for unscrupulous business practices. The oftentimes young and inexperienced Soldier, Sailor, Airman, Marine, or Coast Guardsman receive reliable income from which they may be easily separated by smooth–talking car salesmen, investment professionals, or high interest loan officers.
This article scrutinizes recent efforts to better inform and protect servicemembers with regard to consumer–related issues. The matter is examined from the perspective of the unit commander; the individual responsible for everything the unit accomplishes or fails to accomplish. The analysis will show the service level, top–down paradigm must be supplemented to modify behavior at the unit level. After examining the current state of affairs, this article looks to the foreseeable future and develops potential courses of action for improved servicemember consumer education and protection, including liaison with the civilian bar. Ultimately, this article concludes that education—more so than legislation—is the appropriate solution to stemming the flow of consumer–related issues adversely affecting servicemember readiness.
The Current State of Affairs
Despite legislation that may afford servicemembers distinct consumer protection benefits and service level efforts to increase servicemember awareness via training and education, progress appears to be incremental. The sheer volume of consumer protection issues raised by men and women in uniform requires a response from the highest offices in the land; however, the top–down approach to addressing what is essentially an individual servicemember issue may prove to be only a temporary solution. Conceding that consumer financial products are dangerous and, as Justice Cardozo remarked, "[d]anger invites rescue,"4 the legislation over education model could cause local stakeholders to cede initiative to bureaucracy. Rather than waiting idly for a solution, the military model suggests that a solution may lie in proactive decision–making and shaping operations.
Indeed, the military model reflects a particular ethos: the primacy of the commander in ensuring good order and discipline. The seamless integration of judge advocates at the unit level in support of current operations has successfully demonstrated the benefits of employing attorney assets to provide legal support.
The Road Ahead
While services may tout the provision of quality preventive law programs that educate servicemembers with respect to personal and legal rights and responsibilities, actual practice may demonstrate an appreciably different perspective. Accordingly, the special relationship between a commander and his or her judge advocate should be leveraged to educate the commander with regard to the special financial challenges and unique risks faced by servicemembers, establish clear lines of communication with subordinate commanders, and ultimately achieve an effective preventive law campaign at the small unit level.
Although an effective preventive law program at the battalion level would address legal issues other than financial responsibility, the purpose of the program would be threefold: to educate servicemembers and their families, allowing the military member to focus on mission requirements; to prevent legal problems from occurring; and to minimize time and resource expenditures to correct legal problems when they arise. Among other things, an effective program would emphasize mobilization and deployment preparation, commander and senior enlisted advisor awareness, individual servicemember awareness, and legal assistance and consumer protection. To achieve success, the battalion or brigade commander—not the judge advocate—must establish the preventive law program. Once created, the judge advocate may implement a formalized, commander–based preventive law effort that is a wide–ranging, deliberately planned, and carefully supervised program designed to facilitate servicemember readiness.
Realistic Courses of Action
Although a preventive law program may be established—and perform successfully—without significant involvement by a unit commander, command endorsement provides authority, bolsters credibility, and underscores the importance of financial protection. The following discussion presupposes the battalion or brigade commander has established a preventive law program and tasked the judge advocate with implementing it. As such, initiatives would ostensibly be received by subordinate commanders and staff sections as if directed by the commander, rather than proposed by an idealistic judge advocate. There are three major activities judge advocates may include in preventive law programs.
First, judge advocates may conduct oral presentations at commander and senior staff noncommissioned officer seminars, staff meetings, base committee meetings, and newcomers' orientations. Preferably, the commander would announce the establishment of a preventive law program at staff gatherings and during meetings with subordinate commanders. Once publicly recognized as the point of contact for program implementation, the judge advocate could make liaison with subordinate commanders and their staffs to identify the legal and consumer protection issues most important to the unit. Upon receipt of information outlining the most pressing legal and consumer issues facing the command, the judge advocate may begin specially tailoring informative presentations or other training aids for future use.
Second, judge advocates may submit articles for base newspapers, daily bulletin notices, or unit bulletin boards; prepare handouts or pamphlets for distribution at the legal office and other appropriate offices (e.g., the office of the chaplain and/or Family Readiness Officer); and prepare training materials (e.g., PowerPoint presentations, lesson plans for informal lectures, and/or resource sheets) for subordinate commanders to incorporate into their unit training plans to meet information needs. Having conducted appropriate investigation into the matters most important to each of the battalion or brigade subordinate elements, the judge advocate may begin to formulate his or her information campaign. Though reaching individual servicemembers is a welcome benefit of the information campaign, its object is not the individual, but rather, his or her chain of command.
Finally, base radio, television, or intranet assets may be utilized to address legal issues or advertise educational possibilities. Consumer–related public service announcements or periodic e–mail messages may be disseminated throughout the installation or the battalion or brigade area of responsibility. The judge advocate may enlist the assistance of the public affairs section to modify his or her page on the command web site, incorporating a recurring block of instruction on various consumer protections or preventive law topics. The seemingly endless possibilities associated with electronic media enables the tech–savvy judge advocate to reach individual servicemembers around the clock and in highly innovative ways.
Liaison with the Civilian Bar
Although judge advocates at the battalion or brigade level should aspire to administer the commander's preventive law program, they may not always be best suited to do so. As such, civilian attorneys may be better situated to help implement robust unit and command–based preventive law programs. Judge advocates and their supporting Legal Services Centers' legal assistance attorneys should establish and maintain relationships with national, state, and local bar organizations.
A dynamic civilian attorney–judge advocate relationship is important to the commander's preventive law program because many civilian attorneys possess expertise in complex or nuanced consumer law, family law, landlord–tenant, and employment law issues and may have a surplus of experience as compared to their military counterparts. In order to successfully implement the commander's preventive law program, it may be necessary for a judge advocate to consider the servicemember's goals or interests and leverage civilian attorneys' experience to solve legal problems that fall outside the scope of legal assistance. In addition to representing individual clients, civilian attorneys who can teach servicemembers at the unit level are valued assets.
Much like the instruments of national power are wielded simultaneously to achieve political objectives, an effective preventive law program must use all of the tools at its disposal to achieve its goal. The end state: a battalion or brigade commander intimately familiar with the posture of his or her preventive law program, genuinely concerned subordinate commanders and senior staff noncommissioned officers providing consumer education and preventing poor consumer decision–making to the greatest extent possible, and engaged small unit leadership capable of identifying the early stages of consumer exploitation.
Because of their contributions to the military justice system and basic operational law training and education, judge advocates have become trusted advisors to commanders. This special trust and confidence provides instant credibility as special staff officers and well–rounded legal experts, affording judge advocates opportunities to truly and meaningfully affect organizational change. Though some may not realize it, judge advocates stand poised to enhance the effectiveness of the legal voice within the military.
Maj Charles C.McLeod is Staff Judge Advocate for the 13th Marine Expeditionary Unit and is admitted to practice before the United States Court of Appeals for the Armed Forces and the Supreme Court of the United States.
The opinions and conclusions expressed herein are those of the individual author and do not necessarily represent the views of the Department of Defense or its components.
4 See Wagner v. Int'l R.R., 232 N.Y. 176 (1926).