Judge said Army or jail, but military doesn’t want him

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By Jeff Schogol, Stars and Stripes
Pacific edition, Friday, February 3, 2006

ARLINGTON, Va. — A New York judge gave Michael Guerra the chance to join the Army to avoid a jail sentence. On those terms, the Army doesn’t want him.

Guerra, of North Tonawanda, outside Buffalo, was facing up to a year in jail after pleading guilty to an aggravated assault charge for allegedly hitting a woman who came between him and his girlfriend during a domestic dispute, said Niagara County District Attorney Matthew Murphy.

When Guerra’s attorney told the judge in the case that his client wanted to join the military, the judge gave Guerra a choice, Murphy said.

“The judge said, ‘Well, I’ll give you a conditional discharge: the condition is you join the military,’ ” Murphy said.

But Army regulations say that people facing pending charges are ineligible to enlist, said Army spokesman Lt. Col. Bryan Hilferty.

“Army policy reflected in Army Regulation 601-210, paragraph 4-32a states ‘waiver is not authorized if a criminal or juvenile court charge is pending or if such a charge was dismissed or dropped at any stage of the court proceedings on condition that the offender enlists in a military service,’ ” Hilferty said in an e-mail response to questions.

Army recruiters are also banned from helping someone get out of pending charges by joining the Army, Hilferty said.

“It isn’t a new regulation. Not taking jailbirds has been our policy for decades,” he said.

But David Bookstaver, a spokesman for the Office of Court Administration for New York, said Guerra would not be evading court action by joining the Army.

“The judge is willing to give him a conditional discharge,” Bookstaver said. “One of the conditions of that discharge, in a sense, is that he follow through on his own desire to join the military.”

He said the judge did not want to sentence Guerra to probation because her understanding is that would preclude him from joining the Army.

“He showed up in court with a card from a recruiter,” Bookstaver said. “If, for any legal reasons, the defendant is not able to join the military, the judge will then reconsider the defendant’s sentencing options.”

But Guerra’s attorney, Matthew P. Pynn, said the Army regulations sound “pretty clear” on the matter.

“The next step is going to the sentencing and coming up with another sentence that will involve him going to jail,” Pynn said.

Pynn said Guerra told him he was trying to join the Army, so Pynn hoped the conditional discharge would allow him to do so.

“He said he wanted to do this so, we wanted to make it so it could happen,” Pynn said. “It wasn’t something where the judge sentenced him to the Army.”

But a man answering the phone at the Army recruiting center in Lockport, N.Y., said he was unfamiliar with Guerra’s name.

Guerra could not be reached for comment by deadline Wednesday.

Pynn said Guerra does not have a phone, but he would try writing to Guerra to ask if he wanted to comment for this story.

While the Army’s policy banning people from enlisting to avoid jail is decades old, it has not always been in effect, said attorney Eugene Fidell, president of the National Institute of Military Justice and a military law expert.

“There were cases in the ’70s in which GIs tried to avoid punishment under the UCMJ (Uniform Code of Military Justice) by claiming they were not really in the military, having enlisted as a result of facing a jail-or-military choice,” said Fidell in an e-mail response to questions.

Eventually, Congress amended military law so that soldiers who joined the military voluntarily and receive military pay are subject to the UCMJ, Fidell said.

Fidell said he has not heard of judges giving people the option of joining the military instead of going to prison, but he assumes it still happens from time to time.

“That doesn’t make it right,” he said. “Civilian judges should never offer a defendant the choice of the military or jail. That choice may help clear a court’s docket, but it puts at risk the integrity of the recruitment process.”