Secretary Mattis recently released a memo directing commanders to make better use of the military justice system, likely in response to the plummeting number of court martial cases across all services. For the non-military person, this might sound absurd: why are we unhappy when we have less crime among the ranks? A bit of explanation is required.
In the civilian world, for non-serious offenses (say a speeding ticket), you get time in front of a judge to argue your case. You can get a lawyer, and you can typically appeal any decision. Similar rules apply for more serious offenses, except instead of a state court it may become a federal court depending on the rules. You still get the same legal protection, and serious crimes will require a jury convict you instead of a judge.
Military justice is different. If a service member is accused of a crime, there is a short investigation (conducted by a Preliminary Inquiry Officer, who is normally not a legal officer). If the investigation shows misconduct, then the accused is normally sent to a disciplinary review board (DRB), which is a group of senior enlisted members who ask a lot of questions and try to reconcile conflicting portions of the accused members story. The results of the DRB get presented to the Commanding Officer (CO), who now has a decision to make:
- He can dismiss the charges
- He can dispose of the charges at Non-Judicial Punishment (NJP)
- He can refer the matter to Courts-Martial
AND, in conjunction with all of these, he can take “administrative actions” (more on that in a moment).
Deciding for NJP (sometimes called Captain’s Mast or Article 15, in reference to that portion of the UCMJ) requires the member stand in front of the CO, normally in a dress uniform, and present his or her case. The CO reads through a script, asks a lot of questions, and then decides guilty or innocent. If guilty, the CO can assign punishment, depending on his or her rank and the rank of the guilty (see this table). The accused can appeal NJP, unless that person is deployed/out at sea.
The Courts-Martial process depends on which Courts-Martial you use. For enlisted service members accused of minor crimes, the Summary Courts-Martial can be used, which is quick and can assign some hard punishments (30 days in jail, 45 days hard labor). Special and General Courts-Martials look more like a civilian trial by jury. They can impose hard punishments, including multiple years in prison and even death (although that hasn’t happened since 1961).
So, given this whole structure, is Mattis right about Commanders shirking their duties? The answer is…sort of. There are plenty of barriers to properly using military justice:
1. Poor training. New Commanding Officers get a whole 3 days of legal training. You read that correctly…three days. Most of that training concerns ethics, rather than actual legal proceedings. The Navy Legal response to this lack of training is that COs need to “use their JAG officer” if they have legal questions. But as the Military Times article points out, JAGs are fairly swamped, so if every routine request has to hit a JAG, the reality is that many questions will go unanswered.
2. Lack of Summary Courts-Martial. Poor training causes a problem in that many COs have never heard of a Summary Courts-Martial. The Summary Courts-Martial is a good way to get medium level sentences proper punishment, but right now it isn’t well advertised or used.
For example, there was a rash of drug administrative separations at submarine school, where Sailors would get through Navy basic training and finish submarine training, but before their first deployment they would suddenly flag for smoking marijuana. It was fairly convenient for the Sailor, but terrible for the taxpayer: the Navy would have to separate them, they would never deploy, and then they could get hired on the outside based on training the Navy paid for, with no return on investment of taxpayer money. The local legal team persuaded the schoolhouse’s CO to start referring members to Summary Courts-Martial instead. The first Sailor they punished went to the local federal jail for 60 days. During that time, he was allowed to come back to speak to incoming classes and describe just how much fun it was to be in jail alongside murderers and rapists. Marijuana use, miraculously, plummeted.
3. Lack of ISIC support. The greatest systems in the world can be brought down by mediocre people, and military justice is no exception. If you have a service member that you know will appeal NJP, you now have the fun task of persuading your ISIC that this person deserves a Courts-Martial. The ISIC is higher in rank and normally physically separated from your command. That person isn’t close to the problem. Most ISICs don’t support Courts-Martial unless the offense is being investigated (as in, rape, murder, etc.).
Given these problems, I’m not surprised COs turn to administrative actions. If you know your boss won’t support sending someone to a Summary Courts-Martial, and you know the service member will try to appeal, what do you do? How do you get quick justice and prevent someone from running rough-shod over your command?
Simple. You hit them with paperwork.
You can “fire” them through administrative separation. In most cases, that member is out of the military in two weeks. You can also remove warfare qualifications, give them a bad evaluation, and plenty of other things to ensure they won’t select for the next rank. All of these can’t be appealed. When you want to maintain good order and discipline, sometimes the quick route is the best.
I agree with Secretary Mattis’ memo, but I think he needs to go a step further. He should be increasing the required legal training for those that execute command authority. He should be encouraging the use of Summary Courts-Martial to dispose of lower-level cases quickly and fairly. Above all else, he should release a separate memo to senior officers (O-6 and above) that encourages them to support subordinates that want to refer cases to Courts-Martial. If commanding officers had the training and felt that their ISIC would support them, they would be much more inclined to take the correct route, rather than the easy one.
I presented this viewpoint as someone who had to exercise Article 15 authority over other service members for a variety of different circumstances. In some cases, the person was innocent and I dismissed charges. In others, I assigned punishment, which often ended that person’s naval career. I was fortunate to receive good legal advice and good support from my superiors, but I openly admit it was one of the hardest parts of my job at the time.