Jeh Johnson, the Defense Department's general counsel, ordered a Pentagon advisory group to examine the elements of Article 134 of the UCMJ, which includes "self-injury without intent to avoid service," and also Article 115, or malingering, which includes "intentional infliction of self-injury." (MC1 Chad J. McNeeley / Navy)
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The Pentagon has ordered an internal review of the laws that allow commanders to treat attempted suicide as a crime under the Uniform Code of Military Justice.
The official Manual for Courts-Martial may need to be changed "as part of our ongoing efforts to be sensitive to and address the rising levels of suicide within the military," according to a memo from Jeh Johnson, the Defense Department's general counsel.
The review comes as the military's highest court is preparing to hear an appeal from a Marine who was court-martialed in 2010 and convicted of "self-injury" under Article 134 of the UCMJ, which punishes any offense deemed "prejudicial to good order and discipline."
Marine Pvt. Lazzaric Caldwell was convicted of slitting his wrist in a failed suicide attempt. He was sentenced to 180 days' confinement and a bad-conduct discharge. The sentence was for the self-injury and two other convictions, participation in a theft and possessing synthetic marijuana, records show.
Suicides among active-duty troops have soared in recent years, from less than 200 in 2005 to 309 in 2009, and a spike this year has put 2012 on track to set a new record high.
For years, Pentagon officials have tried to reduce the stigma of mental health care and encourage troops to seek help. Some experts say allowing commanders to prosecute bona fide suicide attempts is counterproductive.
"It means that people are going to feel less likely to go seek help," said Stephen Xenakis, a retired Army psychiatrist and brigadier general. "The policy of prosecuting or court-martialing people for suicide attempts probably backfires."
Johnson ordered a Pentagon advisory group known as the Joint Service Committee on Military Justice to examine the elements of Article 134, which includes "self-injury without intent to avoid service," and also Article 115, or malingering, which includes "intentional infliction of self-injury."
The group should consult the Pentagon's mental health experts and the suicide prevention office, Johnson wrote in the memo.
The Manual for Courts-Martial does not explicitly state that a "genuine attempt at suicide" should be a "factor relevant to the consideration of disciplinary action," according to the memo.
Making changes to the Manual for Courts-Martial requires approval from Congress and the White House.
The military also reports that about 800 active-duty service members survive attempted suicides each year, each potentially punishable under the UCMJ.
But in practice, few commanders consider punitive measures. The military justice system is flexible, and commanders have wide discretion to consider a service member's mental health in any disciplinary proceedings.
"There is ample opportunity as the system exists for government officials — prosecutors and commanders and convening authorities — to discuss whether it was a bona fide suicide attempt and to say, ‘We don't think it's appropriate to prosecute,'" said John Altenburg Jr., a retired Army judge advocate who is in private practice and heads the American Bar Association's Standing Committee on Armed Forces Law.
Commanders should retain some authority to punish self-injury when it does not involve a suicide attempt or reflect mental health problems, Altenburg said. He recalled a soldier who shot himself in the foot just before Operation Desert Storm in 1990.
"In every war, there have been malingering cases," Altenburg said. "It's the extremes that some people go to so they won't have to participate in combat."