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Is military justice going soft? Why courts-martial, NJPs have hit historic lows

As commanders change tactics on misconduct, enforcement plummets

May. 21, 2014 - 06:00AM   |  
(John Harman/Staff)
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With all the concerns in Washington these days about misconduct in the ranks, one might think the military justice system is swamped with unruly troops and commanders looking to crack down on them.

In fact, it’s just the opposite.

Across the force, the military is meting out far less punishment today than just a few years ago. It’s a hard-to-explain trend that has many military justice experts wondering whether commanders have lowered expectations for keeping troops in line — or simply gone soft on some forms of misconduct.

Over the 10 years from 2004 to 2013, data from the service judge advocates show:

■ Courts-martial have dropped about 50 percent.

■ Nonjudicial punishments are down about 25 percent.

■ Bad-conduct discharges have fallen by more than 60 percent.

And according to the Justice Department, the number of troops convicted of crimes and incarcerated in military prisons has shrunk by 35 percent.

Many legal experts say the across-the-board drop in punishments coming at the tail end of two long wars reflects a philosophical change in the way the military handles misconduct in the ranks, especially low-level misconduct. As commanders have grown frustrated with the time and resources required to press a full-blown court-martial, they are now more likely to simply kick troops out of the service quickly and efficiently through administrative channels.

In effect, minor misconduct — a positive drug test, unauthorized absence, cheating or insubordination — that in the 1990s might have led to a summary court-martial or official nonjudicial punishment is now often handled with an administrative separation board, which means fewer lawyers, less paperwork and a quicker resolution.

“Since 9/11, there is just not as much time to spend on the low-level troublemakers,” said Cmdr. Aaron Rugh, director of the Navy’s trial counsel assistance program.

The Navy showed the most dramatic drop in punishments among the services; Navy courts-martial are down more than 80 percent over the past decade and NJPs down more than 70 percent, according to Navy JAG data.

The downward arc in these data trends cannot be attributed to a shrinking force; total active-duty end strength in 2013 was just 3 percent less than in 2004.

Another possible explanation is that the decline in enforcement measures reflects a more well-behaved force. But that is both hard to verify because the Defense Department does not maintain reliable forcewide crime or misconduct data, and it’s also at odds with the drumbeat of anecdotal reports and top-level concern this year about problems like sexual assaults, alcohol and drug abuse, cheating and senior officer ethics scandals.

A shifting approach

A big part of the decline, experts say, reflects changes in how commanders apply the Uniform Code of Military Justice.

The link between misconduct and the demands of war is often cited by the Pentagon leaders, Defense Secretary Chuck Hagel and Army Gen. Martin Dempsey, chairman of the Joint Chiefs.

“We were so busy, we simply failed to use the tools available to police ourselves,” Dempsey said in April. “Over the past 12 years, our pace of operations has been such that we have neglected some of the safety nets we have traditionally used to manage behavior.”

Moreover, Dempsey has said years of combat led commanders to place a high value on competency and accomplishing the mission, and potentially less value on character and military values. He believes the military, especially officers, must now work to rebalance those priorities.

The problem may be especially acute among the ground forces. As the wars in Iraq and Afghanistan dragged on, the Army found some reported crime rising at the same time that enforcement measures were declining.

That revealed “a potentially troubling gap in disciplinary accountability” and may “point to a softening in the perception of criminality,” according to a 2012 Army report known as the Gold Book.

The author of that report, former Army Vice Chief of Staff Gen. Peter Chiarelli, now retired, said the demands of war changed the way commanders viewed discipline.

“There was a tendency to protect those who, when they are downrange, did such a magnificent job,” Chiarelli said in an interview. “When they came home and they got stopped at a [military police] inspection on a Friday night ... and they hit the blotter with a DWI, there was a tendency to try to protect that guy, to give him to a good sergeant and say, ‘Listen, we’ll be back downrange in four months, you watch this guy and make sure it doesn’t happen again.’ ”

Commanders’ decision-making in such instances also was influenced by the hard rule requiring units to be filled to at least 90 percent capacity before deploying, Chiarelli said, which changed how individual cases were resolved.

“In other times, you would have thrown the book at him, but damn it, you needed ... this guy to make your numbers,” Chiarelli said.

As the Army and Marine Corps put their entire force into deployment rotation, commanders sought to avoid the lengthy appeals process that allows undeployable troops to remain on the books and count toward total end strength.

Many Marines recall an influential Marine Corps Gazette article published in 2007 headlined “The Lost Battalion,” which noted that about 1,600 Marines were on appellate leave, meaning they had been convicted of crimes and removed from their units while waiting for an appeals court to finally approve their discharges.

“Clearly, if there is serious misconduct, then we want to get the accountability piece and send them to court-martial. But if it’s just the lower-level good order and discipline [violations], then [commanders opt for] just the administrative firing of them so we can go ahead and get someone in there who is focused on the mission,” said Navy Capt. Robert Crow, director of the Navy JAG’s criminal law division.

The decline in punishments is also a reflection of shifting views about drug use and the fading practice of taking routine drug cases to court-martial. Even the Air Force is now more likely to opt for non­judicial punishment and separation over a court-martial.

“The Air Force has historically been very aggressive in prosecuting drug offenses, particularly because of the impact [drug use] can have on maintaining aircraft and flying. The right answer is still going to be a zero tolerance for drug use ... but we do see the number of nonjudicial punishments [for drug offenses] going up,” said Air Force Col. Mike Lewis, the chief of the military justice division at the Air Force Legal Operations Agency.

A spate of high-profile scandals — bribery, cheating, sexual assault, reckless drinking — have led top military leaders to say misconduct in the ranks continues to be an urgent problem.

Misconduct a 'top priority'

Earlier this year, Hagel declared misconduct a “top priority.” His focus on the issue came after a string of disturbing scandals involving high-level officers, which he said may reflect a systemic problem within the military culture.

“We need to find out: Is there a deep, wide problem?” Hagel said in February. “If there is, then what’s the scope? How did this occur? Was it a constant focus of 12 years on two long land wars taking our emphasis off some of these other areas? I don’t know. We need to find out.”

The next month, Hagel appointed a two-star admiral to a newly created Pentagon position: “military professionalism adviser.”

Hagel, through a spokesman, declined to comment for this story.

On Capitol Hill, meanwhile, lawmakers continue to press military leaders about sex assaults in the ranks. The military’s harshest critics say commanders too often look the other way on sex crimes. Those critics have called for radically changing the UCMJ to strip commanders of their authority to investigate and prosecute major crimes, a measure the Pentagon has firmly opposed.

One high-level investigation recently put a spotlight on a uniquely disturbing example of commanders not responding properly to low-level misconduct.

The case involved former sailor Aaron Alexis, who killed 12 people in a shooting rampage at the Washington Navy Yard last September. According to the Navy’s own investigation, his commanders knew about a string of previous arrests, but failed to report them properly and ultimately granted Alexis an early honorable discharge — which helped him land a post-Navy security clearance and gain access to secure facilities at the Navy Yard.

After joining the Navy in 2007, Alexis was arrested for disorderly conduct at a nightclub in 2008 and later received NJP for being absent without leave. In 2009, he received a second NJP for drunk and disorderly conduct at a nightclub in Texas. And in September 2010, he was arrested for discharging a firearm in Fort Worth, Texas.

Soon afterward, Alexis was approved for an “ early transition program” that lets some sailors leave before completing their full term of service. The Navy granted Alexis an honorable discharge, which precluded the administrative separation board typically required for discharges characterized as “other than honorable” or “general under honorable conditions.”

Together, these issues prompted Hagel in March to announce a sweeping review of the UCMJ, the first since the early 1980s. That review will take a close look at the letter of the law as well as the way commanders enforce it through courts-martial as well as NJPs.

“I think that’s a recognition that ... the way that we use courts-martial now is fundamentally different than it was in 1983,” said a defense official familiar with the review.

Better behaved force?

The level of concern about misconduct expressed by Pentagon leaders like Hagel does not seem to be shared by many judge advocates who carry out the day-to-day running of the military justice system.

Many JAGs, especially in the Navy and the Air Force, say today’s force is the best behaved in a generation and lower levels of misconduct represent one of several key factors in the plummeting rates of UCMJ enforcement measures.

“I don’t think the op tempo has eroded discipline. ... In fact, we might say the opposite,” the Air Force’s Lewis said.

After accounting for the drop in total force size during the past 10 years, the Air Force’s rate of courts-martial is down 15 percent, the rate of NJPs is down 26 percent and the rate of bad-conduct discharges is down more than 60 percent, according to Air Force JAG data.

Lewis attributed that in part to the high operational tempo. “If you’re focused on the mission and you’re working 12 hours days and you know how much your team needs you to get that mission done, you are less likely to go out and do something stupid on your off-duty time,” he said.

Troops on combat deployments typically behave well in part because they have less free time and access to alcohol, many JAGs say.

In addition, strong recruiting over the past decade, fueled by a surge of post-9/11 patriotism and a sluggish economy, has brought the services a new generation of troops with high education levels and less inclination toward misbehavior, experts say. The main exception is the Army, which for several years at the peak of the Iraq War granted more waivers for recruits with criminal records.

The quality of the force has been further strengthened by drawdowns in the Navy and Air Force at the beginning of the decade and the Army and Marine Corps in more recent years. Tighter manpower requirements, coupled with the strong recruiting trends, has led to personnel policies that rarely offer second chances and tend to send troubled troops home early.

The Air Force, for example, now targets troops who receive an NJP and moves their date of separation forward. That means airmen who cause problems are kicked out before they get in any further trouble.

“Someone in 1996 might have received an [NJP] and then had three years’ worth of opportunity to get in trouble again and receive another [NJP] or perhaps get really off onto a bad path and get a court-martial. That person would have the full term of their enlistment to do that,” the Air Force’s Lewis said. “Now the default position is you’re going to be gone within a year.”

The concerns among Pentagon leaders about misconduct in the force are not based on much evidence that discipline is a growing problem, the defense official acknowledged.

“[Misconduct] is in vogue right now, so I think it looks perhaps like there’s more out there than there actually is,” he said. “The issue that [Dempsey and Hagel] have identified is that historically, what we’ve seen is that after a period of war ... there is a transition period that usually is quite difficult for the military and involves a lot of misconduct.”

In that context, any sign that history may repeat itself now “is being taken very seriously within the Pentagon,” the official said. “It’s not so much about seeing misconduct numbers go up, but about anticipating something we think is predictable and making sure we’re poised to prevent it if we can and respond to it if it manifests itself.”

'Zero-defect' culture

Most commanders say strong recruiting and tough competition for promotions are good news, allowing the services to maintain higher standards in general and encouraging sustained superior performance from individuals.

But they also contribute to a “zero-defect culture” that can make commanders reluctant to impose discipline in some instances.

Years ago, military careers could survive an NJP or a low-level court martial if the individual service members over time proved themselves to be of value to the service.

Military history offers many examples. Legendary Adm. Chester Nimitz, commander of the Pacific Fleet in World War II, was court-martialed in 1908 while serving as a deck officer for negelct of duty when his destroyer ran aground.

Those days may be gone forever. “We’ve lost the ability to recreate those legends. Those people can’t exist in the service anymore,” the defense official said.

Today, a single NJP is, in effect, a career-killer for most troops. And that is changing the way commanders view disciplinary measures, making them at times reluctant to take formal actions.

“That decision weighs much more heavily on a commander because of what it can do to someone’s career,” said the defense official. “That affects whether they are going to go through with it or not in certain cases.”

In the short term, that may motivate some commanders to resolve a disciplinary problem not with a career-killing NJP, but rather with a “letter of counsel” that may have no long-term effect. In the long run, that may well change the fabric of military culture.

“If you go out and ask the best sergeants major how many of them have an Article 15 in their files, many of them will say, ‘Yeah, I did, and it was really a wake-up call.’ And thank God we have them, thank God somebody took a chance on them,” Chiarelli said.

“My biggest fear now is that we are going to be far less willing to take a chance on someone who gets in trouble the first time.”

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