A Short Defense of the System

  • Published
  • By Lt. Col. Scott Boehne
  • 436th Airlift Wing Staff Judge Advocate
DOVER AIR FORCE BASE, Del. --  Currently, the media and Congress have focused much attention on the military's judicial system, especially as it relates to a commander's involvement in the prosecution of sexual assaults. Congress, through legislative proposals and hearings, seems determined to restrict commander involvement and align the military system more closely with that of its civilian counterpart.

The premise is that such a change will increase successful sexual assault prosecutions. However, the proposed changes do not account for the unique aspects of the military that demand commander involvement.

Members of the military live, work, and are paid as part of a team charged with furthering our nation's interests as directed by the President. Commanders are required to maintain the good order and discipline of that team and are in the best position to address the misconduct of its members.

When misconduct occurs in the civilian sector, District Attorneys have the luxury to assess the case--weighing the egregiousness of the offense, the manpower and resources it would take to prosecute, and the likelihood of a conviction--when deciding whether or not to prosecute. The offenders and victims are strangers to the District Attorneys and the decision has no secondary impacts on them.

Commanders don't have that luxury. They must promptly address misconduct in order to discipline and rehabilitate, or remove, the offender and send a deterrent message to the rest of the unit. Until they do, the drug-user, thief, sex offender, etc remains a member of the team, being paid and working alongside other military members, which may include the victim. Additionally, and seemingly contrary to media perceptions, commanders cannot summarily remove or punish members of their command. They must provide the alleged offenders with all the rights guaranteed them under the Constitution, even in sexual assault cases.

Congress and the media are especially frustrated with the military over commanders' post-trial involvement. Specifically, they criticize a particular commander's recent decision to disapprove a court-martial panel's finding of guilt in a sexual assault case.

It is easy to criticize the entire system based on one highlighted case. However, Congress should consider some positive aspects of post-trial commander involvement before making significant changes.

Commanders can waive automatic forfeitures of pay and allowances after a conviction. This may prevent a domestic violence victim from being forced to lose their sole source of income for having reported the crime. Commanders can dismiss the findings of guilt on a minor offense when the member was acquitted of the main offense that was the driving force for going to court.

For example, a commander could dismiss an underage drinking conviction, addressing it at a more appropriate level, if the court-martial panel acquitted the accused of a sexual assault charge. Commander involvement, both pre and post-trial, is necessary to fully weigh the needs of the unit, the victims, and the accused when holding a member accountable for misconduct.

Some allege that commanders have an interest in suppressing allegations of sexual assault in order to avoid a potential negative reflection on their ability to command. I disagree.

Commanders have every interest in promptly addressing sexual assaults as they pose extreme risk to divide the unit. Sexual assault cases are often described as "he said/she said." These two versions of the facts can spread through a unit and divide it into two camps supporting one side or the other. If not resolved through command action, these Hatfield and McCoy divisions pose a great threat to the commander's position as they negatively impact his/her ability to meet the mission. Commanders are not fired simply because a sexual assault occurred within their unit, but will be if they prove unable to meet mission requirements.

It is generally accepted that sexual assault has no place in the military and all offenders should be held accountable. However, changing the military justice system to mimic the familiar and predominant civilian system is not a guaranteed cure. It does not guarantee more convictions and overlooks the need for commander involvement due to the unique nature of the military environment.