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Military leaders, including the chief of the National Guard Bureau, have shared concerns with lawmakers over a proposed overhaul of the military justice system.
Seven members of the Joint Chiefs of Staff, including Gen. Daniel R. Hokanson, the top Guard officer, and Gen. Mark A. Milley, the chairman of the Joint Chiefs, shared their views in letters to Sen. Jim Inhofe, the ranking Republican on the Senate Armed Services Committee.
Inhofe, R-Okla., sought the generals’ personal views on the proposed Military Justice Improvement and Increasing Prevention Act of 2021. The legislation would remove military commanders from decisions on whether to pursue courts-martial for charges of sexual assault, murder and other serious crimes.
The legislation was introduced by Sen. Kirsten Gillibrand, D-N.Y., and Sen. Joni Ernst, R-Iowa., and has 66 co-sponsors, including 43 Democrats, two independents and 21 Republicans. Ernst is a retired Army Guard officer.
Inhofe asked each general for their opinion on how the legislation could impact military readiness and mission accomplishment, the impact on good order and discipline and the effects of “the bonds of duty, trust and loyalty between commanders” and their troops.
Hokanson noted that the changes would not impact the vast majority of alleged misconduct within the Guard, because the Guard operates in a non-federalized status for 95% of the time.
“Most states rely on civilian law enforcement and local civilian prosecutorial offices to investigate and address issues of serious misconduct, such as sexual assault, occurring in a non-federalized status,” he wrote.
But, Hokanson noted that Guard judge advocates must be well versed in both the military and civilian legal processes.
“It appears to me that these proposed legislative changes to the UCMJ would make the federal military justice practice more complex and specialized, further increasing the distinctions between the federalized and non-federalized processes,” he said. “This will also increase training requirements for our commanders and judge advocates to ensure their readiness to conduct military justice when mobilized for federal duties.”
The military currently entrusts commanders to administer military justice in a manner that ensures good order and discipline, enhances combat readiness and is perceived by all to be fair and equitable, Hokanson said.
“This responsibility is an essential element of command authority,” he said. “… I am concerned that the scope of the proposed changes in legislation goes beyond the military commander’s authority to address sexual assaults to a much broader set of offenses. Such a significant change in scale could have serious adverse impacts on a commander’s authority to execute the military justice responsibilities inherent in military command.”
Milley also expressed concern over the breadth of the proposed changes.
“It is my professional opinion that removing commanders from prosecution decisions, process, and accountability may have an adverse effect on readiness, mission accomplishment, good order and discipline, justice, unit cohesion, trust, and loyalty between commanders and those they lead,” he said.
However, Milley said he remained open-minded to all solutions when it comes to the “specific and limited circumstance of sexual assault.”
“This is a complex and difficult issue,” he said. “I urge caution to ensure any changes to commander authority to enforce discipline be rigorously analyzed, evidence-based, and narrow in scope, limited only to sexual assault and related offenses.”
