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

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.

“Second, requiring the convening authority to explain in writing any changes made to court-martial sentences, as well as any changes to findings involving minor offenses. The intent is to ensure that convening authorities are required to justify — in an open, transparent, and recorded manner — any decision to modify a court martial sentence,” Hagel continued. “…I look forward to working with Congress on these proposals and others to improve accountability for these crimes.”

Boxer lauded the announcement as a pledge kept by the new Defense secretary.

“I am grateful that Secretary Hagel has lived up to his promise to seriously address the epidemic of sexual assault in our Armed Forces,” she said. “This is the beginning of a long process to ensure that victims of military sexual assault—whether they are women or men—get justice.”

Sen. Claire McCaskill (D-Mo.) noted Hagel’s proposal mirrors the legislation she introduced last month in response to the Wilkerson case, and her office tweeted that Hagel’s announcement “endorses” McCaskill’s changes.

But a spokesman for the House Armed Services Committee said Hagel ignored a mid-March bipartisan request for a briefing on the convening authority’s power in the case and proposed reforms.

“Instead, once again, they rushed to provide the press an extensive briefing on the issue, but none to Chairman [Buck] McKeon, members or staff of the Armed Services Committee,” said Claude Chafin. “This, despite a bipartisan letter from the chairman and other members sent to Secretary Hagel on March 12, asking for his views on the changes that should be made to Article 60 of the UCMJ.”

“Chairman McKeon sees eye-to-eye with Secretary Hagel on much of his reform agenda. The prospects for success would be much improved if members and staff learned of important policy developments from senior commanders or DoD officials, not the press,” Chafin continued.

“Reporters have now had an opportunity to question senior defense officials about this important legislative proposal; members of this committee are still waiting for their chance.”

The committee had sought “an analysis of the underlying rationale for the convening authority’s role and responsibilities in the UCMJ,” a summary of times that authority has been exerted since 2008, and an analysis of how other military justice systems address the role of the convening authority in courts-martial.

“What changes, if any, should be made to Article 60 of the Uniform Code of Military Justice?” committee Republicans and Democrats asked.

President Obama and Vice President Joe Biden meet with Hagel for a closed-door meeting in the Oval Office tomorrow.

Hagel added today that sexual assault “is damaging this institution.”

“I am currently reviewing other options and actions to strengthen the department’s prevention and response efforts, and will announce those decisions and actions soon. Consistent with the 2013 National Defense Authorization Act, I will soon be naming individuals to sit on independent panels to review and assess the systems used to investigate, prosecute, and adjudicate crimes involving sexual assault, and judicial proceedings of sexual assault cases,” he said. “I will closely review their recommendations when complete.”