There’s lots of chatter recently about whether the military services should see their court systems reformed. At issue is whether these systems are sufficiently free from conflicts of interest and capably led by commanding officers adequately educated and trained to administer them. The touchstone for this rising movement is the issue of sexual assault, but the central issues under review are unfortunately fundamental and pervasive enough to concern the entire system rather than one particular type of criminal activity.
JQP’s editor has made his view plain on this issue, signing on to an Op-Ed arguing that it’s time for new legislation to remake the current system in important ways.
New evidence from Air Combat Command (ACC) helps illustrate the depth of the problems so concerning to so many, and why some feel the current system has lumbered beyond its useful life. As we’ve argued here for a long time now, “military justice” in the Air Force isn’t so much about finding the truth and doing what is right or constructive in a given situation. Too often, it’s about using power to stain or condemn an individual … without much regard for what the evidence actually proves.
Here’s an excerpt from a slide presentation used to train commanders in ACC, obtained as part of a request for documents under the Freedom of Information Act.
The key column to note here is the column entitled “Amount of Proof.” This seems to be instructing ACC commanders that they need only a threadbare indication of culpability to justify themselves in offering Article 15 punishment to an airman suspected of wrongdoing. This is the logic that gets airmen thrown under the disciplinary bus based on a single text message or online post … without corroborating or supporting facts capable of standing the scrutiny of an official court process. The Article 15, once used as a rehabilitative disciplinary tool, has become a judicial end-run for commanders who lack the evidence to prevail at trial but still want to put a professional end to a disfavored subordinate.
By the letter of the law (to the extent that matters in the Air Force these days), the slide is, of course, totally and unquestionably, flat-out, 100% dead wrong.
Here’s the relevant excerpt from Air Force Instruction (AFI) 51-202:
Even with the wiggle room provided by this typically mealy-mouthed AFI, commanders are generally bound to refrain from threatening Article 15 punishment if there’s not enough evidence to prove a case in court. This is a practical limitation, since proceeding with a bad case can easily backfire, damaging the legitimacy of the entire system.
It’s also an ethical constraint. If you can’t put together enough evidence to get a professional prosecutor excited, you don’t have much of a case. In the United States of America, that’s another way of saying you don’t have a guilty suspect, and it’s time to drop the matter and put everyone back to work.
Of course, that’s not what happens across the Air Force every day. Article 15 punishment is used coercively, to overbear the will of airmen concerned for their livelihoods, futures, and families. They are pushed into accepting a non-judicial finding of guilt to allow a commander to “win” on an issue and send a disciplinary message to the balance of an organization … whether or not there is ample evidence to justify an admission of culpability. Airmen often make the decision to accept punishment with very little legal advice from task saturated defense attorneys who have themselves been beaten into numbness by watching the system function on a series of normalized deviations for a long time. Idealism has given way to pragmatism and probability. Defense lawyers know commanders have all of the system leverage … when they decide to use an airman’s life to prove a point (whether s/he is guilty or not), there’s not much to be done.
We’ve maintained here on these pages that while it’s important to hold individual commanders accountable when they misuse or abuse the justice system, it’s even more important to ensure the system is structured appropriately. With the wrong structure, injustice will happen even when commanders have the purest of intentions.
This is a perfect example of that principle. ACC is instructing its commanders to punish airmen without sufficient evidence. The more faithful they are to their training, the more injustice the system will produce.
Yet another reason why its time to get justice out of the hands of objective-oriented and mission-oriented commanders and into the hands of legal professionals focused on conducting a fair and impartial process actually concerned with culpability rather than reportable outcomes. It’s also time for senior generals to start cracking down on colonels and junior generals who absurdly misapply their authority, along with the lawyers who advise them without appropriate ethical grounding.
Practical advice for airmen: if you’re offered Article 15 punishment, get professional legal advice focused on your individual case. Request to see the evidence against you. If it doesn’t meet the appropriate standard in the AFI, consider refusing punishment and going to court. When enough airmen do that successfully, they’ll have taught their own commanders an important lesson about how the system is supposed to work.
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