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From their seats on the Senate Armed Services Committee, Jack Reed and John McCain had a front row vantage point on the rise of Army General David Petraeus, the legendary military leader who authored the counterinsurgency campaign known as "The Surge."
Both senators visited Petraeus in Baghdad, received testimony from him in Washington and greatly admired the general’s leadership of U.S. troops in Iraq and Afghanistan.
Reed and McCain, former military officers and the Republican and Democratic leaders of the committee, repeatedly voted for Petraeus’ various postings, including his appointment as director of the Central Intelligence Agency in 2011.
Then in 2012 the roof collapsed on Petraeus’ career after a scandal involving an extra-marital affair with his biographer, Paula Broadwell, prompted his resignation in 2012 and eventually led to his misdemeanor criminal conviction for inappropriately handling classified information.
Now, in a letter to Defense Secretary Ashton Carter, the two senators have come to the defense of the disgraced four-star general, whom they called "brilliant."
Carter is considering retroactively demoting the retiree, which could take away one of his stars and slash his annual pension from about $220,000 to as low as $170,000, according to recent media reports.
The senators’ Jan. 20 letter says a retroactive review of Petraeus’ retirement, coming one year after the general admitted his guilt and apologized, would be "manifestly unreasonable and unfair."
"It is rare that a retirement grade determination is conducted for an officer previously retired from the U.S. armed forces," says the letter, which is signed by both senators.
The statement made us wonder, is it rare? Petraeus can’t be the only former military officer convicted of a crime. What happens in other cases?
First, let’s look at the Petraeus case.
After returning from Afghanistan during the summer of 2011, Petraeus held onto eight black notebooks that contained classified information such as the names of covert officers, war strategy and other intelligence matters, according to an admission he made at his plea hearing.
"On or about" Aug. 28, 2011, says the court record, Petraeus provided the notebooks to his biographer. He retired on Aug. 31, and he retrieved the notebooks on or about Sept. 1.
Later, in October 2012, while Petraeus was serving as CIA director, he spoke to two FBI agents and admitted his involvement in an affair with Broadwell, telling them their relationship began after he left the military. He denied providing classified information to Broadwell, which was a knowing and deliberate false statement, according to an admission he would make later in court.
In November 2012, he resigned as CIA director. FBI agents recovered the notebooks from Petraeus’ home, where he had kept them in violation of the law. In March 2015, he pleaded guilty to the misdemeanor.
In the U.S. Army, a process called grade determination" governs the rank an officer retires at and also affects retirement pay. Such determinations "are normally accomplished at the time of retirement" and remain "fixed" thereafter, according to Army regulation 15-80.
But the Army can lower the grade of a retired officer if any misconduct while on active duty is documented by a conviction in the wake of the officer’s retirement, says the regulation, which also talks about "substantial new evidence" triggering a review if it’s "discovered within a short time following separation." Reed and McCain argue that too much time has passed for such action.
The specific sequence of events that might lead the Army to retroactively demote a retiree are quite rare to begin with, according to Anita Gorecki-Robbins, a lawyer and former Army Judge Advocate General officer who represents members of the military in grade determination proceedings.
First of all, she said, the officer’s active-duty misconduct -- or lawbreaking -- must stay off the radar prior to his or her retirement. Then after retirement someone must tell the Army’s review board about it.
During her 15 years of experience, she’s never encountered such a case.
We asked both senators to substantiate their claim that such retroactive grade determinations are rare.
Reed’s spokesman, Chip Unruh, consulted the Department of Defense and the Army and told us both entities confirm there has been only one case in the last decade involving the retroactive demotion of a retired three star or four star general.
Looking at the officers’ corps at large, it’s rare for anyone to advance to the rank of three-star general and it’s rarer still for an officer of such a lofty rank to be criminally charged. And then consider the circumstances of the Petraeus scandal, involving a storied war leader and former CIA director.
As Gorecki-Robbins says: "This is truly a unique set of facts."
In their letter, McCain and Reed told the defense secretary, "It is rare that a retirement grade determination is conducted for an officer previously retired from the U.S. armed forces."
That claim is True. That’s our ruling.
But we feel compelled to point out that the procedure itself is rare and it’s rarer still to see an American military officer rise so high and fall so far.
TheDailyBeast.com, "Pentagon may demote David Petraeus," Jan. 18, 2016, accessed Jan. 25, 2016.
Sen. John McCain and Sen. Jack Reed, "Letter to the Honorable Ashton Carter, Secretary of Defense," Jan. 20, 2016, accessed Jan. 25, 2016.
Email interview, Robert "Butch" Bracknell, retired marine officer and lawyer, Jan. 25, 2016.
LawfareBlog.com, "The Case Against the Case Against General Petraeus," Jan. 22, 2016, accessed Jan. 25, 2016.
WashingtonPost.com, "How David Petraeus avoided felony charges and possibly prison time," Jan. 25, 2016, accessed Jan. 26, 2016.
Anita Gorecki-Robbins, interview, Jan. 26, 2016.
USAToday.com, "Petraeus reaches plea deal with Justice Department," March 4, 2015, accessed Jan. 27, 2016.
Information in case of David Howell Petraeus, U.S. District Court, Charlotte, N.C., March 3, 2015, accessed Jan. 27, 2016.
Plea Agreement in case of David Howell Petraeus, U.S. District Court, Charlotte, N.C., March 3, 2015, accessed Jan. 27, 2016.
Factual Basis in case of David Howell Petraeus, U.S. District Court, Charlotte, N.C., March 3, 2015, accessed Jan. 27, 2016.
WashingtonPost.com, "Army recommends no further punishment for Petraeus," Dec. 7, 2015, accessed Jan. 27, 2016.
Army Regulation 15-80, "Army Grade Determination Review Board and Grade Determinations," July 12, 2002, accessed Jan. 27, 2016.
Email from U.S. Army Lt. Col. Joe Sowers, Department of Defense spokesman, Jan. 27, 2016.
Chip Unruh, spokesman for U.S. Sen. Jack Reed, email, Jan. 27, 2016.
USAToday.com, "Timeline: The David Petraeus Scandal," April 23, 2015, accessed Jan. 28, 2016.
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