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.