LAS VEGAS (KTNV) — We depend on our military to protect our freedom and our fundamental rights. But 13 Investigates found some who serve don't always have the same protections.
In our continuing series, "Guarding the Guardsmen," chief investigator Darcy Spears hears from former military personnel, advocates and military families about serious concerns of disorder instead of discipline.
Our series began with the life and untimely death of Sgt. 1st Class Allison Bailey.
"To hear that a former member had died, and so soon after getting out of the military, remains a shock to the Nevada National Guard, the family, the friends and so many in the organization," said Capt. Emerson Marcus with the Nevada National Guard.
Bailey went from model soldier to being kicked out of the military. She died six weeks after she was discharged. You can see the details of her story at ktnv.com/guardingtheguardsmen.
Our coverage continues with a new twist as military legal experts explain how Nevada law leaves those who serve at a disadvantage.
When a soldier gets in trouble, discipline may follow, but due process should come first. That's a fundamental right for all of us — a right service members risk their lives to defend.
"It is deeply disappointing and is quite unconscionable." says Dr. Dwight Stirling, a former JAG officer with the California National Guard and law professor at the University of Southern California. Bailey reached out to him for advice after she was discharged.
"When I met with her, she was a broken woman," Stirling said. "And she told me over and over again that it was the disgrace and the shame that took place when the Nevada Guard made accusations and didn't give her a real trial."
After trying to blow the whistle over what she claimed was a bullying and toxic work environment in her unit, Bailey found herself under investigation. She was eventually demoted and kicked out with an "other than honorable" discharge.
"It's a situation where the Nevada National Guard can simply predetermine, you know, the winner and the loser in a case," Stirling said. "And then can write a script that will manipulate the system in a way to get to that outcome."
It was all part of an administrative disciplinary process called an Article 15, which included nearly two dozen allegations.
"They were the kind of garden variety types of accusations that are frequently made against someone who blows the whistle," Stirling said. "Claims that they are a bad leader, or that they that they were mean to me. It's these kind of soft claims that are hard to kind of defend against."
Bailey's military-assigned attorney, Chris Tinsman, questioned the entire process.
"The complaints against Allison were from years past, to the point that there are some statute of limitations questions," Tinsman said.
According to Tinsman, Bailey wanted to mount a defense but wasn't fully equipped to do so. Nevada law prevents guardsmen from opting for a court-martial in lieu of the Article 15, often referred to as non-judicial punishment.
"It's actually beneficial to the member," said Capt. Marcus, the spokesperson for the Nevada National Guard. "Court-martial is for felony convictions," he said. "This did not rise to the level of a felony conviction."
But in Bailey's separation memo, the Guard characterized the charges against her as "serious offenses" under Nevada law, punishable "as a court martial may direct."
Nearly two dozen allegations against Bailey included "engaging in inappropriate relationships with multiple junior soldiers," "disobeying orders and regulations," and "not showing up for work or showing up late."
"I cannot imagine a judge or a jury in the military context convicting her of the charges that she was convicted of by her commander," Stirling said. "It would have shocked me."
If she'd had a court-martial, she could have presented specific evidence to a judge and had it entered into the court record.
Bailey's mother, Felicia Cavanagh, has her daughter's phone, which contains a text conversation between Bailey and her supervising major. Both note concerns about a subordinate guardsman Bailey later accused of sexual assault..
The major wrote in a text to Allison, "...please be careful. In all honesty I've been a tad worried about you and him."
Three months later, it would be this major that Allison tried to initiate an Inspector General complaint against.
"Without a whistleblower, there is no one to call out your misconduct," Stirling said.
In 2015, Nevada legislators changed state law to provide all Nevada service members the right to opt for a court-martial. The idea was to bring Nevada law in line with federal code.
Four years later, the new law was reversed at the request of state military leadership.
In 2019, Assembly Bill 37 was passed, striking the right to court-martial out of state law.
We asked the Nevada National Guard for an on-camera interview with Adjutant Gen. Ondra Berry to explain why they wanted lawmakers to remove the right to court-martial.
We also asked the Guard to describe the results since the reversal took effect. The Guard did not provide the general for an interview, and did not answer our questions, instead referring us to lawmakers.
13 Investigates obtained video from the Nevada Assembly subcommittee when the bill was introduced.
"The office of the military has found that the resources to conduct a court-martial are prohibitive and impracticable," a captain told lawmakers.
"Not having a process for soldiers to have their day in court is just unacceptable on a constitutional level," Tinsman said.
Tinsman and Stirling both believe the right to court-martial protects soldiers from retaliation by commanders who control the Article 15 process, acting as the proverbial judge, jury and executioner.
13 Investigates learned National Guard units abide by their home state's set of laws, which don't always line up with federal law: the Uniform Code of Military Justice.
We researched the law across the country and found Nevada is one of only six states where service members expressly do not have the right to demand a court-martial.
This is exact text from Nevada law:
NRS 412.2879 No right of accused to demand trial by court-martial in lieu of accepting nonjudicial punishment. An accused facing nonjudicial punishment does not have the right to demand a trial by court-martial in lieu of accepting the nonjudicial punishment.
By contrast, at least 17 states give service members the absolute right.
"Which is... it's the basis for our justice system as Americans, not even just military justice," Tinsman said.
This is the example from California:
Cal. Mil. & Vet. Code § 450.1 Except in the case of the imposition of fines upon officers and warrant officers, punishment may not be imposed upon any member of the California National Guard under this section if the member has, before the imposition of punishment, demanded trial by court-martial in lieu of punishment.
13 states are conditional. In Arkansas and Utah, for example, service members can request a court-martial, but it can be turned down by commanders. In 11 states, service members can demand a court-martial only if they're facing jail time or restriction to barracks.
The law in the remaining states is neutral. In that case, Stiriling says the default goes to the military code of justice, which guarantees service members the right to trial.
"Due process, at the very most basic sense, is you get your day in court," Tinsman said.
Tinsman believes Bailey was denied due process by the Nevada National Guard. In his appeal of her case, he noted that the military violated its own disciplinary policy, writing that Bailey "...is charged with a variety of egregious offenses for which she has never been counseled."
He also claimed the Guard interviewed less than half the number of witnesses it should have.
"There were people who had made a statement to the investigating officer who were excluded," Tinsman said. "I talked to those people, so I know they exist."
And he wrote in the appeal that some soldiers, "were told either that their testimony wasn't good enough" or were pressured to sign a statement written by the investigating officer.
The Nevada Guard told us Berry "...denied the appeal based on no new evidence or arguments presented."
We reached out to our federal lawmakers about Bailey's case, which Sen. Jacky Rosen called "a tragedy."
Rosen "requested that the Inspector General of the Department of Defense open a federal investigation into both SFC Bailey's sexual assault allegations and the process of her discharge to get to the bottom of what happened."
A spokesperson for Sen. Catherine Cortez Masto said she referred the matter to Gov. Joe Lombardo and is also calling on the Office of the Inspector General to conduct a review.