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Hagel Wants to Take Power to Overturn Court-Martial Out of Commanders’ Hands

Major change to Article 60 of the Uniform Code of Military Justice is in response to one case that angered Boxer, other lawmakers.

by
Bridget Johnson

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April 8, 2013 - 6:12 pm
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Defense Secretary Chuck Hagel today unveiled plans to take the convening authority to reverse the findings of a court-martial out of the hands of commanders.

The sweeping change to Article 60 of the Uniform Code of Military Justice is in response to one case that outraged several members of Congress, including Sens. Barbara Boxer (D-Calif.), Jeanne Shaheen (D-N.H.) and Kirsten Gillibrand (D-N.Y.).

Lt. Col. James Wilkerson, the 31st Fighter Wing inspector general at Aviano Air Base, Italy, was accused in March 2012 of groping a party guest at his home while she slept. The woman, a civilian physician assistant, testified she awoke to feelings of “discomfort” and saw Wilkerson leaning over her. He was stripped of rank and sentenced to a year in the brig at Charleston, S.C.

Lt. Gen. Craig Franklin, commander of the Third Air Force in Ramstein, Germany, overturned the court-martial verdict against Wilkerson as the result of a clemency review, saying “there was insufficient evidence to support a finding of guilty beyond a reasonable doubt.”

In early March, Boxer and Shaheen pressured Hagel to “immediately review” the “simply unacceptable” decision.

“It is clear that despite sweeping reforms by the Department of Defense to improve prevention, investigation and prosecution of military sexual assaults—including adding specially trained legal personnel and Victim Advocates—these efforts become irrelevant when a case of this magnitude can be thrown out at the discretion of a Convening Authority,” they wrote.

“We urge you, in the strongest possible terms, to take immediate steps to restrict Convening Authorities from unilaterally dismissing military court decisions. We also ask that you work with us as we consider additional legislative options.”

Three days later, Hagel, with a felt-tip pen slash through the formal greeting to “Senator Boxer” and the hand-scrawled salutation “Barbara,” affirmed that after a three-week review the convening authority “concluded that the entire body of evidence was insufficient to meet the burden of proof beyond a reasonable doubt.”

However, Hagel continued, “I believe this case does raise a significant question whether it is necessary or appropriate to place the convening authority in the position of having the responsibility to review the finding and sentence of a court-martial, particularly prior to the robust appellate process made available by the UCMJ.”

The Defense chief, who added he likewise was “prepared” to work with Boxer on legislative changes, said he’d ordered a review to see “whether the case points to changes that should be considered in the UCMJ, or in the military services’ implementation of the UCMJ and, if so, what changes should be made.”

Today, Hagel revealed his decision: “I am directing the Office of General Counsel to prepare legislation for Congress to amend Article 60.”

The proposed changes are twofold: “First, eliminating the discretion for a convening authority to change the findings of a court-martial, except for certain minor offenses that would not ordinarily warrant trial by court-martial. While convening authorities would no longer have the ability to dismiss charges for serious offenses like sexual assault, defendants would continue to have access to a robust system of appeal rights,” Hagel said.

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Top Rated Comments   
Ah, here we go again. The "Sandy Hook" Shuffle - because of one lone event, sweeping changes *must* be made.

Funny how the changes lead directly to more Federal control of a thing.
1 year ago
1 year ago Link To Comment
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All Comments   (20)
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Just remember, don't call Babs Bouncer "Mam"!
1 year ago
1 year ago Link To Comment
The Military is a heirarchial place. It must be so. The Commander has one overall responsibility; insuring the military effectiveness of his unit. Other factors, even sometimes justice, are secondary. This is the business of lives.

Allowing the Commander to set aside or reduce verdicts and sentences is a part of maintaining that effectiveness.

OTOH, I see no objection to requiring him to justify his actions, in writing, to his civilian superiors.
1 year ago
1 year ago Link To Comment
Ah, here we go again. The "Sandy Hook" Shuffle - because of one lone event, sweeping changes *must* be made.

Funny how the changes lead directly to more Federal control of a thing.
1 year ago
1 year ago Link To Comment
Well, that's part of the problem. Granted.

The other part of the problem goes quite a bit deeper than that. JAG? Most of them are left-wingers. The rest? Corruption, cronyism, nepotism...and worse. That's before you get into the idea that service members have no habeas corpus rights. You have no constitutional rights while on active duty. Guilt or innocence at every level is often decided on 'the good of the service' instead of evidence, proofs, facts, or any lack thereof. Your defense attourney? Don't expect him or her to rock the boat on your behalf. It ain't gonn ahappen. He'll put on a good show, at best. In any case, you're screwed before the court convenes. One way or the other, your case has already been decided before the court convenes, unless there's a lot of publicity involved. I learned a lot researching for The Haditha Marines and S/SGT Wuterich. I wasn't happy to learn it. The only reasoin -the ONLY reason- those men weren't buried in deep, dark holes is because of all of the publicity about those cases.

So, when someone wants to trash talk the military justice system, these days, I listen...even if it is Hagel who's doing the trashing.
1 year ago
1 year ago Link To Comment
If Chairman McKeon reallys wants to talk with Hagel, he can issue a subpeona. If guys like Hagel want to play games, then guys like McKeon need to bring the bat.
1 year ago
1 year ago Link To Comment
Like a subpoena would do any good. It would be nullified by an executive order.
1 year ago
1 year ago Link To Comment
Granted how tenuous civilian control of the military and the intelligence agencies is in this country, I'm in favor of any step that limits the arbitrary power of military honchos. It's not as if military justice contained a great deal of justice as it is. Allowing Generals to interfere in an already highly imperfect process is hardly going to improve things.
1 year ago
1 year ago Link To Comment
To all Pjmedia readers,
Please don't waste your time responding to Jim Harrishmuck a.k.a. Jim Hitlerson. He has venomous opinions about everything. He thinks he knows everything about everything. He thinks he has the answer to all of the world's problems. He's what Thomas Sowell might call a self-anointed messiah. He's too ignorant to understand how ignorant he is. He's extremely childish. He throws tantrums. He evades questions. He hates Jews and hates Israel. Please don't pay attention, to this immature, malignant, narcissistic, anti-Semitic demagogue.
1 year ago
1 year ago Link To Comment
Which branch did you serve in, Jim? I am assuming you served because of your intimate knowledge of such service.
1 year ago
1 year ago Link To Comment
Dear Fred Beloit:
There's no point in engaging Harrishmuck. Arguing with him is like arguing with a klansman burning a cross on your front lawn. The racist sewage that oozes out of Harrishmuck's schizophrenic brain would embarass David Duke or Tom Metzger or J.B. Stoner. So his opinions on any subject need to be ignored.
1 year ago
1 year ago Link To Comment
So, Chuck Hagel is going to let wingnut Barbara Boxer push him around....Wonderful.
1 year ago
1 year ago Link To Comment
Sadly, the author of this article is way behind the times of both the story and the building outrage withinin the enlisted and officer ranks that drove not only this particular story, but other similar high ranking events. This has been a building event for more than three years, highlighting the inequities of justice in the services between the enlisted and high ranking officers corps. Of all the services poublications the Army Times is where you can acurately backgreound this stroy overr the past three years as most of the abuse and ineqities has been in the Army.
1 year ago
1 year ago Link To Comment
You might want to consider waiting until you are sober before submitting a comment, Zekie. I have made mistakes too, but really...
1 year ago
1 year ago Link To Comment
Freddie I don't drink bud! I'm one of the unfortunate that God didn't create perfect but.... I have perfected my imperfections. :) You get my age and have the hands I have from good healthy hard labor for almost more than seven decades then we can talk. I didn't choose to sit in some fluff office or job perfecting typing skills. We left that to the women in my day! :)
1 year ago
1 year ago Link To Comment
As a 24-year USAF NCO, I can tell you that the enlisted/officeer inequality of punishment is huge within the force.

SSgt Smith gets a DUI? Its stripes, a fine, no driving on base, and good luck re-enlisting.

Major Doe gets a DUI? maybe an LOR. But he for sure won't lose rank, and in my experience will still be allowed to drive on base.

This needs to be fixed. Is the way its being pushed right now correct? Good question. Not sure I like the way its being done.
1 year ago
1 year ago Link To Comment
Harald, you are correct, and the AF, but for a more recent situation has a pretty good record compared to the Army. After three years of rebel yelling the Army woke up and is doing something about it. Last year they fired more than 50 toxic Colonels and LTC's and just today I see where they fired another general. We now have a SOD and an Army staff commnad corps who knows how to clean up the military and too what standards. In th old days the command level appellant process was not abused in any of the branches for SCM prceeding down. For GCMs it was similar to the civil process and then reviewed the appropriate staff command and rareely ever reversed or modified at that level. Not sure when this new policy got started but was after my 24 years of Marine Corps. It needs fixing as the last thing needed is for our officers corps to display even a hint of judical corruption and or bias and loose their credibility among the junior officers and the enlisted ranks.
1 year ago
1 year ago Link To Comment
24 years = 34 years
1 year ago
1 year ago Link To Comment
Dear Harald:
Thank you for your service to our country.
1 year ago
1 year ago Link To Comment
So, let me get this straight---Lady Democrats want to enable the War on Women.

Right?
1 year ago
1 year ago Link To Comment
Ah, good. More power to the politburo.
1 year ago
1 year ago Link To Comment
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