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J. KARL MILLER: Don't meddle with the Uniform Code of Military Justice

Wednesday, May 8, 2013 | 6:00 a.m. CDT; updated 12:00 p.m. CDT, Friday, May 10, 2013

*An earlier version of this column made incorrect statements about what elected officials know about the case.

On March 4, Lt. Gen. Craig Franklin, commander of the Third Air Force, overturned the rape conviction of Lt. Col. James Wilkerson by general court martial. This decision ignited a firestorm of protests and second guessing, primarily from organized women's groups and female U.S. senators.

The bevy of senators included New York's Kirsten Gillibrand, Hawaii's Mazie Hirono, California's Barbara Boxer, New Hampshire's Jeanne Shaheen and our own Claire McCaskill. Along with the Service Women's Action Network and other advocate groups, they demanded change in the Uniform Code of Military Justice's authority to overturn courts-martial convictions, particularly those involving alleged assaults against women.

Sens. Shaheen and Boxer wrote the secretary of defense, calling the decision a travesty of justice. Sen. McCaskill sent a missive to the secretary of the Air Force, alleging "ignorance" and "malfeasance" along with a recommendation to consider removing the general from his leadership position.

As might be expected, the positions of SWAN and Protect Our Defenders, an advocacy group for military sexual assault victims, were no less critical, calling in some cases for the reporting, investigation and adjudication to be removed completely from the chain of command.

Chairing the Personnel Subcommittee of the Senate Armed Services Committee in a hearing on the issue, Sen. Gillibrand was far from complimentary, attesting that it was the opposite of order and discipline.

The Service Commanders opposed any change to Article 60 of the Uniform Code of Military Justice, which gives convening authorities the authority to overturn or modify verdicts. "So long as we hold our commanders accountable for everything a command does or fails to do, they must have these authorities," said Maj. Gen. Vaughn Ary, the Marine Corps staff judge advocate general.

Nevertheless, Secretary of Defense Chuck Hagel directed the defense general counsel to strip commanding generals and other convening authorities of their authority to void courts-martial convictions. That action will require new Congressional legislation to rewrite the "offending" section of the code before it becomes law.

I find this obvious overreaction and accompanying second guessing to one single action by a general officer convening authority not only absurd but also extremely disturbing. Many of those attacking Franklin's decision and his integrity have two things in common — a lack of knowledge of the facts involved and an affinity for cause celebre status in the media.

The Uniform Code of Military Justice, signed into law by President Harry Truman in 1950, has served the armed forces well for more than 60 years. It mirrors the civilian court system very closely, but individual complaints are investigated and disposed of far more quickly under the code.

Under the code, there are provisions established for one who believes he or she has a grievance to appear before the commanding officer or convening authority. In the Navy and the Marine Corps, the process is called request mast — the member perceiving victimhood is permitted to advance the case in writing — to be opened only by the officer with whom redress of grievance is sought.

Having been a convening authority for special and summary courts-martial, as well as member and president of both special and general courts-martial, I can attest to the integrity, dignity and attention to duty of members and convening authorities in matters of military justice. Every procedure and decision is subject to review by higher authority.

And, as to the allegation that commanders have no legal training, every convening authority has access to legal counsel, those who are commanding generals have a staff judge advocate, a lawyer on their personal staff. In a general court martial, there is a requirement for the presence of a law officer, a staff judge advocate, who rules on matters of procedure and law.

In the alleged sexual assault case under fire, I only know what is publicly available.* But I do have Franklin's opinion that he believed there to be reasonable doubt of guilt.

In his own words: "It would have been exceedingly less volatile for the Air Force and for me professionally to have simply approved the finding of guilty. This would have been an act of cowardice on my part and a breach of my integrity."

It would appear that a reasonable person would give Franklin, a highly accomplished and respected officer with more than 30 years distinguished service, the benefit of the doubt. He understood the possible consequences of his action and had the courage of his convictions. For those who cannot or will not forgive Franklin, a reasonable and logical person must see also that causing serious change to a system that has served us well for 60 years because of one controversial issue is analogous to throwing the baby out with the bath water.

The earlier statement — "So long as we hold our commanders accountable for everything a command does or fails to do, they must have these authorities" — is doubly true. Those held responsible must maintain the authority that comes with command. With the repeal of "Don't Ask Don't Tell" and the secretary of defense opening all combat arms specialties to women, our armed forces have been subjected to more than enough social experimentation and cultural alteration.

I would hope that Congress will see through the bias and vicious second guessing and inform the secretary of defense that "since the system ain't broke, there is no need to fix it."

J. Karl Miller retired as a colonel in the Marine Corps. He is a Columbia resident and can be reached via email at JKarlUSMC@aol.com. Questions? Contact Opinion editor Elizabeth Conner.


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Comments

Ellis Smith May 8, 2013 | 6:49 a.m.

Comments:

In certain civil - not criminal - trials a civilian judge has the authority to reduce and even overturn jury verdicts. That's not exceptional in what's called "tort litigation."

Military justice needs to differ in certain respects from civilian justice, because situations in the military ARE different from those in civilian life. If there are those who find that irrational, I'd remind them that the act of WAR itself is irrational.

Unlike Col. Miller I declined to pursure a military career*, but I am happy I was asked to do so, and I consider my voluntary military service as an important part of my life experience.

*- My decision hinged mainly on my civilian occupation, which is so esoteric the federal government didn't even (at that time) list it; I was classified by the government as a Chemical Engineer (which some of my Chemical Engineering associates find extremely funny).

(Report Comment)
Tony Black May 8, 2013 | 7:34 a.m.

Col, how many sexual assault cases did you preside over? And apparently, it is broke, what with all the sexual assault cases coming to light with very few repercussions. A military jury found him guilty, and his buddy let him off. Seems far to me, right? Face it. It ain't the fifties and women are in the military. Get over it and yourself.

(Report Comment)
Michael Williams May 8, 2013 | 11:07 a.m.

TonyB asks, "Col, how many sexual assault cases did you preside over?"
_____________________

Ok, let's explore that. If the colonel says "zero", that will be support for your position that he has no business weighing in on this topic.

What if he says some non-zero number?

What is your position then? Will it change? If not, why not?

How many have you presided over? If the answer is zero, then perhaps you should "get over it" and bow out of the discussion as you are asking the colonel to do.

PS: Support your "with very few repercussions" statement. Otherwise, you're just blathering on......

(Report Comment)
Tony Black May 8, 2013 | 12:36 p.m.

It may change my opinion, maybe not. Depends on the situations.

http://www.defense.gov/news/sexualassaul...

Commanders had sufficient evidence to take disciplinary action against 989 of the 1,518
subjects. Of these, 791 were disciplined for a sexual assault offense: 489 subjects had
courts-martial charges preferred against them, 187 subjects received non-judicial
punishment, 48 subjects were administratively discharged, and 67 subjects received other
adverse administrative actions. In addition, commanders took action against 198 subjects
for non-sexual assault offenses discovered during the investigation.

Report from 2012, slightly more than half were found valid and 48 were discharged. I guess it's not a dischargeable offense. Lots of folks reporting assaults that didn't happen will be Michael and the Col.s take. But 1 guy was convicted by a tribunal and let loose by 1 man. Like being found guilty in a civilian court and some judge saying "never mind."

I have read many of your posting, Michael, and I pale to you in knowledge of apparently everthing, but I remain convinced that the usual right wing posters on here want to go "back" when "things were better." For whom, would be my question.

Your turn to blather, Michael.

(Report Comment)
Michael Williams May 8, 2013 | 1:20 p.m.

Like being found guilty in a civilian court and some judge saying "never mind."
_________________________

Like folks want for Ryan Ferguson?????

PS: I'm keeping my blattering short.

PSS: Don't forget....the Colonel HAS been a convening authority in courts martial. You've not said one way or the other for....you. I tend to trust those who can say "been there, done that."

(Report Comment)
J Karl Miller May 8, 2013 | 4:44 p.m.

Mr Black,

As to your largely irrelevant "how many sexual assault cases did I preside over" the answer is one and if my memory serves me correctly, I was a General Courts Martial member which tried 3 such cases. The reason for the lack of relevance in your question is simply that whether in civilian or military court and whether the defendant is male or female, the rules of evidence are the same as are the elements of each offense as presented to the court/jury by presiding officer--civilian judge or court president/staff judge advocate. Gender is not a consideration.

For your information, a civilian judge can also overrule a jury's verdict in cases in which the decision isot supported by the evidence.

And, your "A military jury found him guilty, and his buddy let him off" highlights your limited knowldege of the military and its command structure. I can guararantee unequivocally that Force Commanders do not have "buddies" in the ranks.

(Report Comment)
Michael Williams May 8, 2013 | 5:22 p.m.

TonyB: I checked your link. I fail to see how that supports your ""with very few repercussions" accusation.

Perhaps you're a "Well, they arrested him/her, so he/she must be guilty" kind of guy. Especially if it has to do with sex.
______________________

Colonel....to be fair in all this "buddy" talk, I must ask if the West Point Protection Association is a figment of imaginations.

(Report Comment)
Skip Yates May 9, 2013 | 1:59 a.m.

Senator McCaskill also is holding up the promotion of LtGen Susan Helms, USAF, over her overturning a sexual assault conviction of a Captain... The President and governors grant pardons all the time; judges occasionally are in complete disagreement with a jury; but, God forbid a convening authority exercising his/her responsibility.

(Report Comment)
Skip Yates May 9, 2013 | 10:10 a.m.

@Michael Williams: The West Point Protection Association much as the Naval Academy Benevolent Association generally only works with higher end promotions and choice command assignments (which leads to promotion). And, then thankfully, really not so much anymore. Not much differently than insider tracks/relations and friendships at the university. As to Mr. Black, not worth commenting about.

(Report Comment)
J Karl Miller May 9, 2013 | 8:23 p.m.

Thanks for setting that straight Skip. West Point and USNA grads don't have that much influence anymore. ROTC and NROTC grads are equally professional and often make better leaders as they had more liberty during school.

(Report Comment)
Skip Yates May 10, 2013 | 12:28 p.m.

@Col. Miller: Who knows what is going to happen under Hagel with the current "go-along-to-get-along" gaggle of Pentagon Peacocks. Careerism at its worst.....

(Report Comment)

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