WASHINGTON — Defense Secretary Chuck Hagel is recommending that military commanders be largely stripped of their ability to reverse criminal convictions of service members, a move that comes in response to a congressional uproar over an Air Force officer's decision to overturn a guilty verdict in a sexual assault case, the Pentagon said Monday.
Hagel has asked his staff to draft legislation that would require that cases go through the U.S. Court of Military Appeals, and that senior officers no longer have the authority to set aside guilty findings, except in limited, minor offenses that ordinarily don't warrant a court martial. The commanders, however, would retain their ability to participate in plea bargains and to reduce sentences, but they would have to defend the lesser sentence in writing.
In a written statement Monday, Hagel said that, if enacted by Congress, the changes "would help ensure that our military justice system works fairly, ensures due process and is accountable. These changes would increase the confidence of service members and the public that the military justice system will do justice in every case."
The change requires congressional action, but lawmakers have already begun looking into the matter in response to a furor over a recent Air Force sexual assault case. Hagel said the new recommendations have the full support of the Joint Chiefs of Staff and the service secretaries.
Lt. Gen. Craig Franklin, commander of the 3rd Air Force at Ramstein Air Base in Germany, overturned the conviction against Lt. Col. James Wilkerson, a former inspector general at Aviano Air Base in Italy. Wilkerson had been found guilty last Nov. 2 of charges of abusive sexual contact, aggravated sexual assault and three instances of conduct unbecoming of an officer and a gentleman. The incident had involved a civilian employee.
Wilkerson was sentenced to a year in prison and dismissal from the service, but after a review of the case Franklin overturned the conviction. His decision triggered outrage among senators and calls for a new look at the military justice system.
"This decision has turned the military on its ear," said Sen. Claire McCaskill, D-Mo., during a hearing last month. She added that Franklin's decision sets the Air Force "all the way back to Tailhook." The 1991 Tailhook scandal rocked the military as Navy pilots were accused of sexually abusing female officers at a Las Vegas convention.
Hagel ordered a review of the issue, but he does not have the sole authority to either change the law or the reverse Franklin's ruling.
On Monday, senior defense officials explained the change, saying that once their review of the matter began it became quickly evident that no one was pushing back against the change. They said that the authority to set aside convictions was more suitable years ago, but the military justice system now has additional checks and balances to assure fairness.
The officials who were involved in the review spoke on condition of anonymity because they were not authorized to discuss the change publicly.
Senators heralded Hagel's move, with McCaskill calling it a "big win for survivors of sexual assault" in the military. And the House Armed Services Committee promised to give the change serious consideration.
Sen. Kirsten Gillibrand, who heads the personnel panel on the Senate Armed Services Committee, said she and several colleagues are drafting a bill to address the problem and strengthen accountability in the military justice system.
Anu Bhagwati, executive director of Service Women's Action Network, said that she commended the change to the post-trial decision-making. She added, however, that similar attention must be placed on the authorities of commanders during pre-trial decisions affecting the investigation and prosecution of offenses so that the judicial process more closely mirrors the civilian system.
At the same time, Hagel acknowledged that the Pentagon is still struggling to address the problem of sexual assault in the military. He said he's reviewing other ways to strengthen the department's prevention and response efforts.
Air Force officials have argued that overturning the results of a military court martial and granting clemency is rare – amounting to roughly 1 1/2 percent of the caseload. In the past five years, senior commanders have overturned 40 guilty verdicts out of the 3,713 courts martial that were tried. Of those, the Air Force said that 327 involved sexual assaults and just five of those convictions were reversed.
Defense officials said that the other military services have reported similar percentages, but their exact numbers were not available.
Under the current law, if an accused service member is found guilty and sentenced, the findings are not final until they are approved or disproved by the convening authority. The convicted service member can request clemency and the general officer – usually a major general or lieutenant general – seeks legal advice, reviews the trial record and considers information submitted by the accused.
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