[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
[H.A.S.C. No. 116-85]
RACIAL DISPARITY IN THE MILITARY
JUSTICE SYSTEM--HOW TO FIX
THE CULTURE
__________
HEARING
BEFORE THE
SUBCOMMITTEE ON MILITARY PERSONNEL
OF THE
COMMITTEE ON ARMED SERVICES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD
JUNE 16, 2020
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
U.S. GOVERNMENT PUBLISHING OFFICE
42-927 WASHINGTON : 2021
SUBCOMMITTEE ON MILITARY PERSONNEL
JACKIE SPEIER, California, Chairwoman
SUSAN A. DAVIS, California TRENT KELLY, Mississippi
RUBEN GALLEGO, Arizona RALPH LEE ABRAHAM, Louisiana
GILBERT RAY CISNEROS, Jr., LIZ CHENEY, Wyoming
California, Vice Chair PAUL MITCHELL, Michigan
VERONICA ESCOBAR, Texas JACK BERGMAN, Michigan
DEBRA A. HAALAND, New Mexico MATT GAETZ, Florida
LORI TRAHAN, Massachusetts
ELAINE G. LURIA, Virginia
Hannah Kaufman, Professional Staff Member
Paul Golden, Professional Staff Member
Danielle Steitz, Clerk
C O N T E N T S
----------
Page
STATEMENTS PRESENTED BY MEMBERS OF CONGRESS
Kelly, Hon. Trent, a Representative from Mississippi, Ranking
Member, Subcommittee on Military Personnel..................... 3
Speier, Hon. Jackie, a Representative from California,
Chairwoman, Subcommittee on Military Personnel................. 1
WITNESSES
Christensen, Col Don M., USAF (Ret.), President, Protect Our
Defenders...................................................... 5
Farrell, Brenda S., Director, Defense Capabilities and Management
Team, U.S. Government Accountability Office.................... 7
Hannink, VADM John G., USN, Judge Advocate General, United States
Navy........................................................... 24
Lecce, MajGen Daniel J., USMC, Staff Judge Advocate to the
Commandant of the Marine Corps, United States Marine Corps..... 27
Pede, LTG Charles N., USA, Judge Advocate General, United States
Army........................................................... 22
Rockwell, Lt Gen Jeffrey A., USAF, Judge Advocate General, United
States Air Force............................................... 25
APPENDIX
Prepared Statements:
Christensen, Col Don M....................................... 49
Farrell, Brenda S............................................ 58
Hannink, VADM John G......................................... 97
Lecce, MajGen Daniel J....................................... 112
Pede, LTG Charles N.......................................... 92
Rockwell, Lt Gen Jeffrey A................................... 106
Speier, Hon. Jackie.......................................... 47
Documents Submitted for the Record:
[There were no Documents submitted.]
Witness Responses to Questions Asked During the Hearing:
Mr. Cisneros................................................. 121
Ms. Speier................................................... 121
Questions Submitted by Members Post Hearing:
[There were no Questions submitted post hearing.]
RACIAL DISPARITY IN THE MILITARY JUSTICE SYSTEM--HOW TO FIX THE CULTURE
----------
House of Representatives,
Committee on Armed Services,
Subcommittee on Military Personnel,
Washington, DC, Tuesday, June 16, 2020.
The subcommittee met, pursuant to call, at 12:00 p.m., in
room 2118, Rayburn House Office Building, Hon. Jackie Speier
(chairwoman of the subcommittee) presiding.
OPENING STATEMENT OF HON. JACKIE SPEIER, A REPRESENTATIVE FROM
CALIFORNIA, CHAIRWOMAN, SUBCOMMITTEE ON MILITARY PERSONNEL
Ms. Speier. Good afternoon. The Subcommittee on Military
Personnel of the Armed Services Committee will come to order.
I would like to welcome the members who are joining today's
hearing remotely. These members are reminded that they must be
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So, welcome, everyone. Today, we will be focusing on racial
disparity in the military justice system. We are here to
discuss the inequalities and injustices that people of color
experience in the military justice system, including those in
criminal investigations, courts-martial, and nonjudicial
punishment.
The fact that we live in a country with ingrained racial
bias in no way excuses or justifies the perpetuation of racism
in the United States military. Our service members commit their
lives to protect our country. We must commit ourselves to
ensure that the military treats service members of color
equally and justly.
We will not solve this problem by hiding it or denying it.
We will not solve this problem pretending that it is solely the
result of uncontrollable societal problems, by pretending that
our actions do not contribute to the continuation of injustice,
by refusing to seek change because we are so comfortable and
confident in, quote, the ways things have always been done,
unquote. The way things have always been done is wrong. The
results are repugnant. I hope that all our military leaders in
the room are prepared to acknowledge the need for a reckoning
and prepared further to institute bold measures to fix the
inherent bias in the military justice system in America.
GAO's [U.S. Government Accountability Office's] most recent
report found that Black service members were more likely to be
the subject of recorded investigations and more likely to be
tried in general and special courts-martial than their White
counterparts. Importantly, GAO found that the results were
statistically significant. Racial data on nonjudicial
punishment was not uniformly collected.
Protect Our Defenders in their investigation found that
Black airmen were twice as likely to face nonjudicial
punishment than White airmen.
Yet history provides us some solace. The military led the
way in integrating our Black service members long before
schools or lunch counters were integrated. In 1948, President
Truman signed Executive Order 9981, directing equal treatment
for our Black service members in the military. Subsequently,
the Army, Navy, Air Force, and Marine Corps complied. Quote:
``In 1949, the Air Force issued a, quote, Bill of Rights for
Black airmen, and the Navy proposed a recruiting program to
enlist Black sailors. The Marine Corps eliminated its
segregated training platoons in various post facilities,''
unquote.
But integration did not equal acceptance. Racism and
discrimination, both personal and institutional, continued.
People of color who wished to make a career in our military
have faced an uphill fight, and we have done too little to
assist them.
Seventy-two years after integration, the fight for equality
and justice continues. We still struggle to carve out an equal
place for people of color, struggle to ensure they have the
same opportunities to serve and advance in their careers, and
struggle to ensure them equal justice.
We have to look no further than the military leaders in
this country, almost exclusively White men. It was heartening
to note that General Charles Brown has become the Air Force
Chief of Staff just this week; but 72 years?
I would like to hear from the first panel what needs to
change, what needs to be done to bring transparency to the
system and ensure accountability for every commander who uses
the military justice system in a biased and discriminatory
manner.
For the second panel, I would like to hear how, as the
senior military lawyer for each service, you could educate
leaders at all levels to recognize bias in the military justice
system, and what you can do to ensure that justice is dispensed
fairly and consistently.
Before I introduce our first panel, let me offer Ranking
Member Kelly an opportunity to make his opening remarks.
[The prepared statement of Ms. Speier can be found in the
Appendix on page 47.]
STATEMENT OF HON. TRENT KELLY, A REPRESENTATIVE FROM
MISSISSIPPI, RANKING MEMBER, SUBCOMMITTEE ON MILITARY PERSONNEL
Mr. Kelly. Thank you, Chairwoman Speier, and thank the
witnesses for being here. Thank you for holding this hearing at
such a fitting time. As Americans across this country of all
backgrounds are struggling to better understand racial
disparity across society at large and to take substantive
actions that actually make a difference, this is a fitting time
to have this hearing.
I want to welcome both of our panels to today's hearing. We
appreciate your attention and commitment to remedy a very grave
problem that, if left unchecked, could stand to undermine the
readiness of our Armed Forces.
Racial disparity is a very real societal problem, and
across various criminal justice systems, when we see lopsided
rates of arrests, prosecution, and incarceration, that should
concern every American. This country has struggled to confront
and fix that problem for decades, and we continue to do so, but
as the events of the last several weeks demonstrate, we have a
long way to go.
As a former district attorney and city prosecutor, I have
seen my share of it, and it is something neither I nor any of
us can ever shy away from or get complacent about. This is a
problem we all collectively need to confront head on.
Where I think we can and must make a very real difference
is in our military. I have served in the military for over 33
years, commanded at the battalion and brigade levels, and I
know the very real bond our young warriors share, regardless of
background.
I was very proud 2 weeks ago when 371 soldiers from
Mississippi in the 155 Armored Brigade Combat Team, all
volunteers, answered the call and deployed to Washington for
the civil unrest on 3 hours' notice. They were a very diverse
group, with 43 percent from either African-American or minority
backgrounds. They trained together. They deployed together. And
they did their duty as a team together, which is what makes our
military so great. They answered the call, did what they were
asked to do, and they did it with honor and integrity.
They and all service members place their trust in each
other and their leaders, and that is why our military is so
formidable. This is in context that lays a bit of the
foundation for what makes this disparity in military justice so
troubling for me. Leaders need to do the right thing always,
treat every soldier, sailor, airman, and Marine with dignity
and respect, and protect that trust that binds warriors
together.
If racial disparity persists, it always has a negative
impact on recruiting, readiness, and the culture of our
military. I understand the statistics, the effect, but what we
need to understand is the cause, fashion the right remedies,
and we need to do it quickly.
Section 5401 of the fiscal year 2020 NDAA [National Defense
Authorization Act] tasks the SECDEF [Secretary of Defense], in
consultation with the services, to evaluate the causes of
racial, ethnic, and gender disparities in the military justice
system and to take steps to remedy disparities.
I am interested in hearing from our witnesses today on any
ideas for rooting out the cause of this problem and potential
solutions and where the Department is in their evaluation of
causes and remedies.
I understand the Air Force is initiating an inspector
general investigation with panels of experts in support to
explore the problem more holistically. I am interested in
hearing from all the services about any similar or
complementary initiatives.
I do note that the Space Force is not here today. And as a
new force, I think they have a chance to get it right from the
start. They can be groundbreaking and groundsetting because
they start from zero.
Madam Chairwoman, I think this is a great start and I look
forward to today's discussion. I want to again thank the
witnesses for attending today's hearing and share their
collective expertise with us. And I yield back.
Ms. Speier. Thank you, Mr. Kelly.
Each witness will have the opportunity to present his or
her testimony, and each member will have an opportunity to
question the witnesses for 5 minutes. We respectfully ask the
witnesses to summarize their testimony in 5 minutes. Your
written comments and statements will be made part of the
hearing record.
I ask unanimous consent that nonsubcommittee members be
allowed to participate and ask questions after all the
subcommittee members have had the opportunity to ask questions.
Without objection, so ordered.
Let me welcome our first panel: Retired Colonel Don
Christensen, President of Protect Our Defenders; and Ms. Brenda
Farrell, Director of Defense Capabilities and Management Team
of the U.S. Government Accountability Office.
Ms. Farrell is joining us via Webex. Welcome.
All right, let us begin with Colonel Christensen.
STATEMENT OF COL DON M. CHRISTENSEN, USAF (RET.), PRESIDENT,
PROTECT OUR DEFENDERS
Colonel Christensen. Chairwoman Speier, Ranking Member
Kelly, distinguished members of the subcommittee, thank you for
the opportunity to appear before you to examine the issue of
racial disparities in the military justice system.
Like our country, the military has a long and painful
history of mistreating racial minorities. Black service members
have continued to be prosecuted and punished at a much greater
rate than White counterparts. Moreover, they suffer promotion
rates and are--they suffer lower promotion rates and are vastly
underrepresented in the officer corps, especially at the
general and flag officer ranks.
As part of Protect Our Defenders' ongoing efforts to
improve the fairness of the military justice system, in 2016 we
filed a series of Freedom of Information Act [FOIA] requests to
each service seeking 10 years of data on racial disparities in
the military justice process. The data was provided to us in
rates per thousand. After eventually receiving the data, we
released a study of our findings in June of 2017 that showed
widespread racial disparities in all of the services. We
examined a total of 32 years of data, and in every single year
Black service members were punished at a significantly higher
rate than White service members.
Based on our findings, Congress mandated a Government
Accountability Office review of the disparities, which was
completed in March of 2019. The GAO also found significant
racial disparities, but most shockingly, the GAO found that
none of the services had done anything to find the causes or
solutions for the disparities.
As part of its answer to our 2016 FOIA request, the Air
Force stated it had created, quote, ``a cross-functional team
led by diversity inclusion experts,'' end quote, to, quote,
``collect and analyze the data and recommend policy changes,
process modifications, or additional study, as appropriate.''
In July of 2017, we filed an additional FOIA request
seeking the identities and the qualifications of the team
members as well as the team's findings and recommendations in
addition to other information. This was the start of a grueling
3-year-long struggle to force the Air Force to meet its FOIA
obligations. Thankfully, we were represented by the Yale
Veterans Legal Services Clinic, which enabled us to file suit
in Federal Court.
Despite numerous efforts by the Air Force to conceal its
findings and recommendations of the team, a Federal judge
eventually ordered the Air Force to disclose the requested
documents under the threat of sanctions. The documents that we
received were startling.
The panel in a followup study by Air Force Manpower, or A1,
found that the racial disparities were, quote, ``consistent and
persistent and getting worse.'' The Air Force admitted that the
numbers were, quote, ``concerning,'' and the importance of
having, quote, ``equitable and consistent disciplinary
processes.'' These findings were made in 2016. And despite
concluding that the Air Force, quote, ``must clearly address
the disparity in some way,'' end quote, the Air Force appeared
to [fail to] act on the team's recommendations and address the
issues.
Another disturbing finding of our review of the documents
is the Air Force legal community's efforts to discredit the
data showing--their own data showing significant racial
disparities. Despite the strong conclusions of A1, JA [Air
Force Judge Advocate General's Corps] has attempted to
discredit the importance of the data. Specifically, in the
background paper that JA created in 2016, they claimed that the
disparity between Blacks and Whites that are punished can be
the result of a small number of additional actions.
Lieutenant General Rockwell, the Air Force Judge Advocate
General, reinforced this message recently in a briefing to the
Air Force four-stars, where he told them, quote, ``even a few
additional disciplinary actions have a far greater impact on
the rate per thousand for Black airmen,'' end quote, due to
their smaller number. General Rockwell then went on to
misleadingly illustrate this point by using a ratio of 10 to 1
of White airmen to Black airmen rather than the actual rate of
5 to 1.
The idea that the decades-long disparity can be explained
by a few additional disciplinary actions is false, and JA needs
to stop this line of argument. The disparity in nonjudicial
punishments in calendar year 2019 in the Air Force alone
represents an additional 520 Article 15s for Black airmen, not
an additional few, as implied by the legal world.
In other words, Black airmen received approximately 1,105
Article 15s last year. If they were punished at the same
proportional rate as White airmen, they would have only
received 585. The impact of racial disparities across all the
services in the last 10 years would easily be in excess of
10,000 additional extra punishments meted out against Black
airmen--or Black service members, not a few additional actions.
The Air Force needs to focus on finding solutions and causes,
not discrediting the significance of its own data.
We released our report May 26 of this year, and it had an
immediate impact. I credit Chief Master Sergeant of the Air
Force Wright and General Goldfein for acting quickly by
ordering an investigation. But what must not be forgotten is
the action initiated by the Air Force last week to investigate
disparities would not have occurred if they had been successful
in keeping this information from being disclosed.
This hearing today would not have been held but for the
fact we were willing to force the Air Force to disclose damning
information that it wished to keep hidden. This is a reminder
of the importance of transparency and why the military must
faithfully meet its FOIA obligations. How much further could
the Air Force be in addressing racial disparities if it had put
the energy into finding solutions in 2016 rather than seeking
to cover up its embarrassing failures.
I look forward to any questions you may have.
[The prepared statement of Colonel Christensen can be found
in the Appendix on page 49.]
Ms. Speier. Thank you, Colonel Christensen.
Before we hear from our next witness, I would like to
remind members to turn on their screen. The rules require us to
do that. So we will do so. Thank you. All right.
Now we are going to hear from Ms. Brenda Farrell from the
GAO that has recently provided the report.
Ms. Farrell.
STATEMENT OF BRENDA S. FARRELL, DIRECTOR, DEFENSE CAPABILITIES
AND MANAGEMENT TEAM, U.S. GOVERNMENT ACCOUNTABILITY OFFICE
Ms. Farrell. Thank you, Madam Chairwoman. Ranking Member
Kelly, and members of the subcommittee, thank you for the
opportunity to discuss GAO's findings to recommendations about
racial disparities in the military justice system.
The Uniform Code of Military Justice, the UCMJ, was
established to provide the statutory framework of the military
justice system. It contains articles that punish traditional
crimes, such as unlawful drug use and assault, as well as
unique military offenses, including desertion. Every Active
Duty service member of the Army, the Navy, the Marine Corps,
the Air Force, and the Coast Guard are subject to the UCMJ,
with more than 258,000 individuals disciplined from fiscal
years 2013 through 2017. A key principle of the UCMJ is that a
fair and just system of military law can foster a highly
disciplined force.
My statement is based on our report issued in May 2019 on
the military services' capabilities to assess racial
disparities, among other matters. Let me briefly summarize my
written statement. My statement is divided into three parts.
The first part addresses the collection of race and ethnic
group information in the military services' investigations,
military justice, and personnel databases.
Among our findings, we found that the services did not
collect information about race and ethnic group in these
databases. Thus, they were limited in their ability to identify
disparities, which are instances in which a racial or ethnic
group was overrepresented. Specifically, the number of
potential responses for race and ethnic group within the 15
databases across the services ranges from 5 to 32 options for
race and 2 to 25 options for ethnic group, which can complicate
cross-service assessments.
To address these inconsistencies, we made recommendations
to DOD [Department of Defense] and DHS [Department of Homeland
Security], the parent organization for the Coast Guard, to
collect and maintain race and ethnic information in the
investigative and personnel databases, using the same
categories recently established in the uniform standards for
the military justice databases. DOD and DHS concurred with
these recommendations.
The second part of my statement addresses the extent of
racial disparities in investigations, disciplinary actions, and
outcomes. Since the services did not collect race and ethnic
group data consistently, we analyzed actions initiated and
recorded in each service's investigations, military justice,
and personnel databases between the years, fiscal years 2013
through 2017.
To help ensure we had consistent profiles for service
members, we merged records using unique identifiers, such as
Social Security numbers, that were common among a military
service's database. We used OMB's [Office of Management and
Budget's] standards to consolidate the various race and ethnic
values. We conducted multivariant regression analyses to test
the association between a service member's characteristics,
such as race and ethnic group, and the odds of a military
justice action.
By using this approach with available data, we found an
association of disparity at stages of the military justice
process, but findings are inconclusive regarding other stages.
For example, we found that Black service members were more
likely than White service members to be subjects of recorded
investigations in the military criminal investigative databases
in all of the services. Further, Black service members were
more likely than White service members to be tried in general
and special courts-martial in the Army, the Navy, the Marine
Corps, and the Air Force. Data for the Coast Guard was not
available.
The last part of my statement addresses DOD evaluating the
causes of disparities. We found that DOD has not
comprehensively evaluated the causes of racial disparities in
the military justice system. We recommended that they do so to
better position them to identify actions to address
disparities. DOD concurred.
Madam Chairwoman, in conclusion, we believe that, for the
system of military law to be recognized as fair and just by
both service members and by the American public, DOD and DHS
need to take actions to implement the recommendations in our
May 2019 report.
That concludes my statement, and I will be pleased to take
questions that you or the others may have.
[The prepared statement of Ms. Farrell can be found in the
Appendix on page 58.]
Ms. Speier. Ms. Farrell, thank you. You did it with 8
seconds left.
So let us start with Colonel Christensen. You know, I was
stunned in reading the report that you found that, in the Air
Force, a Black service member was 71 percent more likely to be
charged for nonjudicial punishment, I believe, for courts-
martial or nonjudicial punishment. In the Army, it was 61
percent. In the Navy, it was 40 percent more likely. In the
Marine Corps, it was 32 percent more likely. So, clearly, the
Air Force is the grossest outlier, although they all appear to
have statistics that bear a high degree of bias.
It appears to me that you had to work very hard to get that
FOIA request complied with. How much time did it take for you
to actually get that information from the Air Force?
Colonel Christensen. Well, that is a great question. So
there were two separate FOIA requests. The first one where it
just asked for the raw data, we got fairly quickly. The Air
Force answered I believe within a month with just raw data. But
in that first FOIA request, they talked about establishing this
disparity panel to--I thought: Hey, great, they are really
going to look at this.
And when we did the follow-up--it has been 3 years since we
filed that FOIA request, and we still have not got all the
documents that we requested. For example, I have no idea what
the qualifications of a single person on that panel were.
And we had to go to Federal court. We filed suit in
December of 2017. We did not get a final judgment from the
judge until March of this year. So it was an onerous task. I
mean, we were very fortunate to have a great group of Yale law
students and Yale law professors who were willing to fight
this, but the average person looking for FOIA evidence cannot
get that kind of support.
Ms. Speier. And so it was over a year and 3 months before
you got the data that you requested, and----
Colonel Christensen. It was over 3 years.
Ms. Speier. Over 3 years.
Colonel Christensen. Three years, yes. It was a 3-year
struggle. The first request, it took about 6 months for
everybody to get the information to us. But when it came to the
disparity panel, its findings and its recommendations, that is
a 3-year struggle.
Ms. Speier. So, after your report came out with the
stunning statistics, when did you hear from the Air Force?
Colonel Christensen. I have never heard from the Air Force.
Ms. Speier. From any of the other services?
Colonel Christensen. I have never heard from any of the
services. None of the services reached out to us to talk about
the report or findings.
Ms. Speier. What do you think the military should do to
show that it is taking these disparities seriously?
Colonel Christensen. Well, I think the first thing we need
to realize is that this is information that I know the Air
Force has tracked for decades, back to at least the eighties,
and nothing was ever done. So there is a long track record of
doing nothing.
When our first report came out in 2017, you know, that was
an opportunity. It had been put into the public light, got a
lot of media coverage. Congress was concerned about it. That
was an opportunity to show they were going to do something, but
they haven't.
General Goldfein, I think, took the first step by ordering
the investigation, but the thing to remember about that
investigation, that is an internal Air Force investigation by
the IG [inspector general] who works for General Goldfein. They
need to be looking at outside sources to come in and talk to
them about that, experts on disparity, truly people who
understand what the causes are.
And I think one of the things they have to accept, because
what we have seen, to the limited degree they have looked at
it, they have tried to look at exclusively unconscious bias.
They have to accept that there is also actual bias. There are
actually people who are prejudiced serving in the military. I
don't think it is most. I don't know if it is many, but we do
have that. There was a naval officer who just accidentally
disclosed his racist beliefs on Facebook by livestreaming a
conversation between him and his wife that was horrifically
racist. He is an Academy grad and a retired Captain.
We have to accept that this isn't just unconscious bias,
that there are people who don't like Black people or other
minorities and don't want them in the military, and they have
to try to root this out. But leadership needed to stand up
decades ago. It needed to stand up in 2016. It needed to stand
up in 2017. It needed to stand up in 2019. It has to show that
they really care about this.
Ms. Speier. Ms. Farrell, what would you want us to make
sure that the Department of Defense does, moving forward?
Ms. Farrell. Thank you, Madam Chairwoman.
As I noted in my statement, we think implementation of our
recommendations are key. In fact, I think the recommendations
in our report are a roadmap for DOD, with the final chapter
being the causes of the disparity and taking steps to make
corrections.
I think continued oversight in this area is necessary,
especially as my colleague on the panel has noted, these
disparities have been lingering for some time. Now we have hard
reliable data to help pinpoint where there are differences so
that DOD can target where to start looking for the causes of
these.
So I think continued oversight is necessary. We noted in
the report that the National Defense Authorization Act for
Fiscal Year 2020 had provisions that were consistent with
several of our recommendations. Some deadlines have been set,
in terms of when DOD must begin to look at, say, the causes of
disparities, but there is not an end date.
I think it was recognized that more data was needed, and
this was going to be a very complex review, but in order to
make sure that that report is completed, I think congressional
oversight is going to be very important. Thank you.
Ms. Speier. Thank you.
Mr. Kelly.
Mr. Kelly. Thank you, Chairwoman Speier.
And, first, the cause of racial disparity across society
and across the military service is elusive, except for those
who are blatantly racist, and there are those in every
organization, including the military.
What recommendations, if any, do you have that would be
helpful to the departments in getting after the causation and
fashioning of remedies and also understanding the causation
that aren't those that are intentional, those cultural or
whatever disparities that are caused by culture, what remedies
would you all have?
Colonel Christensen. Thank you, Ranking Member Kelly. Well,
I think General Goldfein has taken a first good step on that by
actually getting the input from the rank and file of the
services. We have heard from--at Protect Our Defenders, since
their first report came out and the second report from, you
know, a lot of Black service members who are talking about what
they are experiencing.
I think the Air Force particularly is an incredibly White
officer corps. The fighter pilot community is less than 3
percent Black. And so I think there is a lack of understanding
what the Black service members and other minority service
members are facing, the difficulties they face, the lack of
mentorship.
In 2015, Air Force Times ran a really good article about
promotion failures for Black service members, the failure to
get depth in promotes, the failure to get in-residence PME
[professional military education]. And so getting the service
members at the top to understand that there are issues that are
impacting the way Blacks progress throughout the military and
other minorities progress is really a key to that.
Mr. Kelly. And, second, I want to understand the
significance of years of service on this analysis. As I recall,
in the GAO report, you included years of service in your
analysis for the Air Force data but not the other services
because it closely correlated with rank.
Are we looking at generally a problem that is focused
primarily on younger service members across the services, and
if so, how does this data compare nationally to trends? And for
you, ma'am.
Ms. Farrell. Thank you for that question. We did do a
bivariate regression analysis as well as a multivariate, where
we would control for certain characteristics, such as years of
service or rank. And each service model was a little bit
different. We worked very closely with the services in order to
understand what was going on with their particular service.
As far as a comparison between older and younger, we did
not develop that particular analysis to target in terms of
that. We are aware of some studies that are done in the private
sector. But we did not try to make any comparisons of what is
going on in the military justice system with what is going on
in the civil justice system.
I hope that answers your question.
Mr. Kelly. It does. And back to Colonel Christensen. I want
to go back. In my career, when I first got in 30-something
years ago, I think I had the first African-American first
sergeant in the Mississippi Army National Guard that served
under my command. So you rarely saw any senior NCOs
[noncommissioned officers]; I can name on one hand the senior
O-5, O-6 level officers who were African American in the
Mississippi National Guard, which Mississippi is 40 percent
African American.
Now, I can't count. And many of those are my soldiers who I
mentored--I personally made a difference--who are sergeant
majors, sergeant first class, who are first sergeants. The last
three brigade commanders that followed me as a brigade
commander are all African American--not because they are
African American--because they are the best we got, the
absolute best. So now it is there.
So you served as part--during the data that we collected
from 2010 to 2014, you served in the Air Force in one of the
chief legal roles. So what did you see, and what did you do?
And now, with the experience you have now, what would you do
now different to change the outcome of what happens in the Air
Force, to Colonel Christensen?
Colonel Christensen. That is a great question. And I agree,
the Army actually is further ahead in the officer corps being
African American. The Air Force lags behind the rest.
What did I see? Look, I never prosecuted someone that I
thought was innocent. Of course, I don't make the prosecution
decisions; someone else does, as you know. I don't think it was
necessarily a case that innocent people were being brought to
trial. What I thought the problem was is that others were
getting the benefit of the doubt based upon whether the
relationship--implicit bias, explicit bias--whatever it was,
they were getting the benefit of the doubt.
So, for example, 2 years ago, the Air Force decided to
prosecute a Black NCO for being 6 minutes late to work,
literally 6 minutes late to a meeting, excuse me, and he has a
court-martial conviction. That is a decision that truly should
not have been made. I don't care if it was an Article 15
turndown or not, just the optics of it.
What did I do? Well, one thing I was very concerned about
and raised as an issue was the lack of Black JAGs [judge
advocates general]. We do not have enough. We have one of the
great former ones sitting behind me in Colonel Orr. But when I
retired, I believe we had 1 of 124 colonels in the JAG Corps
were African American.
So I encouraged the African Americans that worked for me to
try to make a career out of it, to be concerned about it. I sat
on a promotion--or, excuse me, on a selection board. I
encouraged the people who also sat on that selection board to
focus on finding good African Americans to come into the JAG
Corps because I think part of that experience that they would
bring in would be important to help with that bias.
What have I done since? Obviously, filing this report. It
was important to me. I knew the data was there, and it troubled
me throughout my career. I never saw leadership really address
it, and I thought it was important to bring it forward.
Mr. Kelly. Thank you, Chairwoman.
I yield back.
Ms. Speier. Thank you, Mr. Kelly.
Were White NCOs that were 6 minutes late court-martialed?
Colonel Christensen. I have never seen anybody court-
martialed with the sole offense of being 6 minutes late to a
meeting other than this African American.
Ms. Speier. That is really stunning.
All right. Mrs. Davis, you are recognized for 5 minutes.
Mrs. Davis. Thank you. Thank you, Madam Chair.
And to our witnesses, thank you for joining us.
Colonel Christensen, first off, can you talk maybe without
getting in the weeds too much a little bit about how you
gathered your statistical information? And I just wanted to get
a sense of your statistical analysis, whether that was very
different from Ms. Farrell's. And then I will ask Ms. Farrell.
Just talking about that and whether you think information was
concealed and sort of your level of confidence, I guess, with
the analysis and whether it revealed sort of really what you
are trying to get at here. How do we do that?
Colonel Christensen. Thank you, Congresswoman Davis. So,
for the initial FOIA request, we requested from each service 10
years of data showing their rate per thousand of court-martial
and Article 15 for African Americans, Whites, and other
minorities. We received that data from everyone, except for the
Navy only gave us 2 years of data. The Coast Guard never
responded.
The data we got from the Air Force was the best. I knew
their process would track it well. I am very confident that the
data that they provide us is accurate. And what we saw out of
that data was a historical disparity of racial--where Blacks
were prosecuted and given Article 15s at a much greater rate
and that it was getting worse, not better. And that is what we
saw across all the services.
The Army did not track nonjudicial punishments. The Marine
Corps only tracked by convictions. So we don't know how many
cases were charged, just convictions. The Marine Corps was
interesting, as the more severe the punishment the greater the
disparity. So, for example, by the time we got to general
courts-martial in the Marine Corps, the disparity was almost
2.6 times greater for Blacks than it was for Whites.
The issue that we dealt with a cover-up was when we did the
follow-on about the racial disparity panel that the Air Force
said that they had established.
Mrs. Davis. And, Ms. Farrell, could you respond to that,
and are there some differences or areas, again, that you didn't
feel that you were able to get the information and really had
some sort of lack of confidence maybe in some of that data?
Ms. Farrell. Sure. I will be happy to expand upon our
methodology. Our methodology was for a different time period
than Don's. His was a much longer. Ours focused on the fiscal
years 2013 to 2017, which was the latest available data.
We experienced very good cooperation from the Department of
Defense. This was a very rigorous analysis, as I noted. We
obtained the records, all the records for that period between
fiscal year 2013 and 2017, and 3 categories of 15 databases
across the services.
There were some places where data was incomplete, and that
is the reason we say that we found disparities that were
statistically significant at certain stages of the military
justice process. But at other stages, the findings are
inconclusive, and it is usually inconclusive for two reasons.
One, incomplete data. Not that any of the services did not
provide the data, but the data was incomplete, such as
nonjudicial punishments: the data was incomplete for the Army
and the Navy as well as the Coast Guard. So it was very
inconclusive.
But we received very good cooperation from DOD. The
analysis that GAO did in cobbling all this information together
takes time. It is not something that DOD could do routinely in
an efficient manner. That is why it is so important for them to
carry out the recommendation to adapt their personnel and their
investigative databases to have the same uniform standards as
the military justice so that, going forward, especially if the
causes of disparities are identified and steps are taken to
remedy those, you want to be sure you have good data in place
in order to be able to find that progress.
Mrs. Davis. Yeah. Okay. Thank you. And I hope that, in our
next discussion, we will get into those causes, certainly.
But, Colonel Christensen, going back to you very, very
quickly, I know you tend to, and really in your analysis felt
it was important to, look at legally trained military
prosecutors. But I guess within the judicial system, we would
probably all agree that there is always--there is some bias
there. How do you think that is different?
Colonel Christensen. In the military, how could it be
different, if I am understanding your question?
Mrs. Davis. Yes. Well, I think, rather than leaning on the
commanders, the military, legally trained military prosecutors,
is that a different kind of bias that they would bring to their
positions, recognizing that there is always some implicit bias
within the judicial system, of course, as well as in the
military as well as in society, but do you see that as
different, and why would that recommendation be there?
Colonel Christensen. Well, as I agree with Ranking Member
Kelly, there is always bias no matter what system we have, and
that is unfortunate.
The reason we talked about that is the bias that the
command decision who--the commander who has the power to make
that decision is he knows the accused. He also knows the person
he chose not to prosecute or not to give an Article 15 to
whereas, as a prosecutor, I never knew anybody until I walked
into court. So I could not have a bias against him one way or
the other.
And so that is where I think the key is, is there is an
inherent bias in the chain of command when they know the people
involved. If they haven't established the same kind of
relationships with the African Americans that work for them as
they have with the White service members that work for them, I
think it is going to have a negative impact.
Mrs. Davis. And you feel that the prosecutors wouldn't
bring that kind of bias at least in. Maybe, what are other
biases that they bring?
Ms. Speier. Actually, Mrs. Davis, you have gone over 1
minute 51.
Mrs. Davis. Great. All right. Thank you. Thank you, Madam
Chair.
Ms. Speier. All right. Next we have Ms. Escobar. You are
recognized for 5 minutes.
Ms. Escobar. Thank you so much, Madam Chairwoman, and many
thanks to our panelists.
You know, Colonel Christensen, it is really interesting
that you mentioned the Coast Guard because I just recently read
a report about the Coast Guard, which obviously is under the
Department of Homeland Security, not DOD.
But the report by the inspector general found that
incidents of racial harassment were not--there were no
consequences for cadets who used racial slurs against their
fellow cadets, absolutely no consequences, and there was a
history of this. And so I think one of the things that we are
going to need to do is really kind of take a look at really a
broad sense of causality, including whether folks are punished
for using racial slurs, et cetera.
But to both of you, and I know we are going to get into
this more in the next panel, but as we are talking about the
causative factors, what would you say, just based on the
research that you have done, what are the causative factors in
these disparities in the research that you have found?
Colonel Christensen. Well, and that is an excellent
question, and it goes beyond what my expertise is and what the
data that we have is. The data shows this is a problem. And
that is what we were hoping that the military, each service
would do once the problem was brought publicly to light to
them, that they would look for the causes, and we were limited
in what access we have on that.
But, just as someone who served for 23 years and has served
all that in the military justice world, I do think that the
racial makeup, especially of the Air Force leadership, without
a doubt has some impact on the disparities that we have.
General Hyten, when he testified at his nomination hearing
to become the vice chair, when he became the vice chair, said
that basically the issue of race was behind the military, and
that when he looked at the service, it was color-blind as he
did it.
You know, and that is the problem. You know, there are two
four-star African-American generals in the entire DOD. So we
really need to focus on the inclusion of all races and their
voices in understanding the issues that young Black service
members are facing.
Ms. Escobar. Thank you so much.
Ms. Farrell, your thoughts and anything come to mind as you
were conducting your research?
Ms. Farrell. One of our objectives was to determine what
steps DOD had taken to determine causes of disparities. And
what we found was there have been some steps but not a
comprehensive review. By steps, there are climate surveys that
gain information on perspectives of service members. But going
back to the seventies, the eighties, the nineties, there really
hasn't been a focus on the military justice system and causes
for disparities.
We, again, think that our report pointing to certain stages
of the military process can help prioritize where to start
looking for those causes, and that is a recommendation DOD has
agreed with. But, also, in the National Defense Authorization
Act for 2020, there is a provision consistent with that that by
I believe it is this month DOD will proceed with such a study,
commence it. Thank you.
Ms. Escobar. Thank you both. I am quickly running out of
time. I just wanted to make note for something, about something
with my colleagues and with the chairwoman. We have been
talking about this issue for the last year and a half, and it
really is important in terms of not just African-American
service members but Latinos.
And, also, I am very curious about the impact on immigrants
in our services, especially when we have a Commander in Chief
who [inaudible] on disparate treatment as well.
But one of the things that we have found is, at the highest
levels of authority within the military, it is even less
diverse, and it may be because of the adverse military judicial
system encounters that you all have pointed out. That may be
one of the underlying causes.
I know I am just about out of time. Thank you both again
for your work, and I yield back.
Ms. Speier. Thank you, Ms. Escobar.
Mrs. Luria, you are now recognized for 5 minutes.
Mrs. Luria. Thank you.
And I want to thank Mr. Christensen and Ms. Farrell for
joining us today. And I think that this really highlights
something. The saying is that justice is blind, but it is
showing that justice is not color-blind.
And having served myself in the military, having been a
commanding officer and part of the NJP, nonjudicial punishment,
process within the command, I think that, you know,
understanding that and the lack of data that has been collected
and the lack of reporting requirements that existed, I think
that that is very useful for us to hear as a committee to
understand the scope of this problem and get after, you know,
true core issues of why a disparity could exist.
Ms. Farrell just mentioned in her comments a couple minutes
ago the fact that there is command climate data, command
climate survey data as well that I think can be informative on
this. You know, it is part of the bigger picture, because we
don't necessarily have accurate data for nonjudicial punishment
in all parts of the military justice system to go off of.
But, you know, Ms. Farrell, can you elaborate on how
command climate data could help inform, you know, what the
previous questions you got from Ms. Escobar. Could you envision
a way that we could try to incorporate that or require the
incorporation of that into the analysis? Because that is taken
regularly, it is taken from all commands, and it is taken from
the perspectives of people who are not only involved themselves
personally in an accusation or going through the nonjudicial
punishment process.
So can you elaborate for everyone on how that could maybe
be a piece of the data that we need to fully analyze?
Ms. Farrell. Sure, I would be happy to elaborate. Command
climate surveys are required. I believe DOD has gotten much
better in the past few years in making sure that they be
administered, thanks to a little help from Congress.
They are designed to help an incoming commander understand
the working environment and what issues he or she may need to
focus on while they have that command. There is usually a
standard set of questions that are answered, and then the
incoming commander can ask some additional questions.
Climate surveys have been very beneficial to obtain
perceptions of service members in many personnel areas. I have
worked with them looking at hazing as well as other sexual
assault issues. So I think the surveys could be reviewed in
order to see if there is something that could be gained.
We do have to be careful about survey fatigue. We hear that
from DOD all the time. But this comes down to, where is this
issue of racial and ethnic disparities in DOD's priorities? So
command climate surveys could have some issues incorporated.
The Status of Forces is another survey of the Active Duty.
There is also another one for the Reserve Component and
civilians, but that is another one that there are standard
questions, but often the questions change. But when an issue is
emerging, often DOD uses the Status of Forces Survey to ask a
set of questions over a period of a few years to try to dig a
little deeper to see what is going on.
So there are survey instruments already in use that could
be used to perhaps obtain some more information about this
particular issue in the military justice system.
Mrs. Luria. Well, thank you for that, and I think that, you
know, as we look at, you know, how we try to collect data to
assess the situation to identify the root causes that we could
consider that there is additional data on top of just
statistical data about the types of NJP that happen. And I do
think it could also be somewhat difficult, and I think we have
to be very clear on how we collect that data because, you know,
different things stop at different phases within the NJP
process. Some of them may never reach captain's mast, for
example, or office hours or whatever term the service uses for
that process, and some may stop short of that with just
assigning extra military instruction and other things.
And I think that there is also an aspect in the NJP process
with the attempt to maintain good order and discipline, attempt
to use the process when there is a supposed infraction to
improve the performance of the sailor or the soldier with
things such as extra military instruction and things like that,
which are clearly required to address specifically the issue at
hand and are not viewed as punishment but are viewed as, you
know, ways to improve their performance and make them better
soldiers or sailors.
So I think that, you know, definitely collecting the data
is very important, but I appreciate your work in researching
this. And I think that we do need to do more to understand the
problem more to get at the root causes.
And training is also an issue as well. I think that, as a
commanding officer in the Navy, with specifically the Navy
legal justice course, and, you know, then there is not really
any specific thing that I recall in that training that
addressed specifically looking at racial disparities or uniform
application of the justice system.
Sorry. I apologize. I have run over, Madam Chair, but thank
you again, and I look forward to the next panel as well.
Ms. Speier. Thank you, Mrs. Luria.
Now, Ms. Haaland, you are recognized for 5 minutes except
you are not there. We will come back to you.
Mr. Cisneros, you are recognized for 5 minutes.
Mr. Cisneros. Thank you, Madam Chairwoman. And I want to
thank our panelists for being here today.
Colonel Christensen, look, I am a product of what used to
be the Navy's affirmative action program. I worked through this
program called Broadened Opportunity for Officer Selection and
Training. It took enlisted personnel, people of color, helped
prepare them for college. So it was part of the Navy's process
to get more people of color into the officer ranks.
You know, as you stated, Colonel, 78 percent of our
military officers are White; 8 percent are African American. It
is even lower for Asians and Hispanics. You know, when you talk
about the impact of the lack of representation in the officer
ranks and how it has disparities in our military justice
system, and you also mentioned about, you know, when you were
in the Air Force, a lack of diversity in the JAG Corps there.
But, really, what do we need to do as far as recruiting
goes to bring these numbers up so that really we are recruiting
a more diverse officer corps, really help solve this problem in
the criminal justice system in the military of the disparities
in it?
Colonel Christensen. Thank you, Congressman. Well, I think,
you know, prioritizing, definitely, as you talked about, that
opportunity to go from a young enlisted Black service member to
become an officer, how do we encourage that process.
What are we doing to make sure that the officers have
mentorship? And that is so key. How far you progress in the JAG
Corps or any other part of the service depends on who you have
for mentors. And so do we have people looking out for those
young Black officers and making sure that they can progress?
Are they getting the opportunities to go to professional
military education in residence, which is a key to getting
promoted, especially to the general officer or flag officer
rank, and then making sure that they are operating in a good
environment.
So a story just broke I believe this weekend about the
racial problems at West Point and that the cadets there, the
African-American cadets, I believe 25 percent of them said that
they have been subjected to racial abuse. So we have got to
make sure that, at the institutions that are giving us our
future leaders, that the people serving and trying to get that
commission are treated with respect.
Mr. Cisneros. Ms. Farrell, you know, in the 2019 GAO
report, it recommended that the Army, Navy, and Coast Guard
collect data such as, you know, race, ethnicity, gender,
offense, and punishment for all nonjudicial punishments.
Can you elaborate on the importance of collecting this data
and update the committee on the services' progress in this
area?
Ms. Farrell. Yes. This is an area where the data was
inconclusive because those three services had incomplete data
to determine the extent of disparities in the nonjudicial
punishments.
What happened was, in conducting our data reliability
check, we identified the number of nonjudicial cases in the
Court of Appeals for the Armed Services and the reports from
fiscal year 2013 to 2017 and compared those numbers with the
numbers in the services' military justice databases as well as
their personnel databases, and we found that, for the Army,
roughly 65 percent of the reported cases were not in their
databases. And those reported cases are in the report by the
way that goes to Congress and the Secretary of Defense. About 8
percent of the cases that were reported in the annual reports
were not in the Navy's database, and about 82 percent of the
cases for the Coast Guard were reported out but not in their
databases.
So we made a recommendation that these three services have
complete information on nonjudiciary punishments.
After discussions with them, there was some concerns about
how they would do that. So the recommendation is actually to
determine the feasibility, including the benefits and the
drawbacks of having complete nonjudiciary punishment data.
We know that the Army and the Navy have moved forward and
decided that they want to have this information and perhaps you
can learn more about that on the next panel.
The Coast Guard plans to make a decision about the
feasibility of collecting such data in September of this year.
Mr. Cisneros. Thank you. I yield back.
Ms. Speier. Thank you, Mr. Cisneros.
Ms. Haaland, followed by Mrs. Trahan, and, finally, Mr.
Brown.
Ms. Haaland, you are recognized for 5 minutes.
Ms. Haaland. Thank you, Chairwoman. Chairwoman, I don't
have any questions at this time for this panel, but I will be
here for the next panel. Thank you. I yield back to you.
Ms. Speier. Alright, thank you. Mrs. Trahan, you are
recognized for 5 minutes.
Mrs. Trahan. Thank you Madam Chair.
So I will just put my bias out there. I don't generally
believe that it takes years to change. I do believe that it
happens closer to an instant, especially when we have a strong
culture and strong leadership, which is something I believe we
pride ourselves in. So that being said, I will just ask the
question to Colonel Christensen and Ms. Farrell.
Do you believe convening authority should be left to
commanders, or do you think that the current process increases
the risk of unconscious or even overt bias within our military
justice system?
And I will just add my second question would be, do you
believe that if the convening authority were transferred to a
separate entity within the Department it could decrease the
racial disparity highlighted in these reports?
Colonel Christensen. Well, thank you for your question.
While that is a core principle of mine, is that the military
become a part of the 21st century and have prosecutors make
prosecution decisions versus convening authorities, I think the
command-controlled system of military justice, as I talked
about before, they know the people involved, it is going to
cause a bias no matter how good the commander is, no matter how
desirous they are of not having a bias, they are going to have
a bias because they know the people who are making the, that
have been alleged to have committed a crime.
I think that bias is going to carry over throughout the
process because of the way the chain of command works. If you
have a convening authority system, when you have a convening
authority system, they weigh very heavily on the views of the
commander who knows the people who have committed the crime. A
prosecutor-based system, which is not perfect--no system is--
but as I said before, when I prosecuted a case, the first time
I laid eyes on the accused is when I came to court. I didn't
know who they were; race wasn't an issue unless for some reason
it was an identification issue as part of the reporting
investigation. And so I think it does not eliminate but reduces
the chance that racial biases will impact the decision made by
the person deciding whether a case should go to trial or not.
Ms. Speier. And her second question? What was your second
question, Mrs. Trahan?
Mrs. Trahan. Thanks. It was if I--I think Colonel
Christensen answered it. But it was if he believes if the
convening authority would transfer to a separate entity within
the Department it would decrease the racial disparity.
I will ask Ms. Farrell if she has anything to add;
otherwise, I do have maybe just another follow-up.
Ms. Speier. Go right ahead.
Ms. Farrell. Thank you. I would say, to answer your
question, we need to see DOD's evaluation of the causes of
disparities at these different stages in order to pinpoint
exactly what needs to be done in terms of correction along the
lines that you are talking about.
Mrs. Trahan. And so are the commanders today who are
holding convening authority, are they receiving training on
these issues?
Are we arming them with the tools to recognize racial
disparities and ethnic inequities so that they may address them
appropriately?
Colonel Christensen. Well, that is probably a question
better for the other panel to answer. My understanding is the
Air Force has said they are now doing that. I don't know. But
as the GAO report found in May of 2019, it doesn't seem like
anything had been done by that time to find causes or
solutions.
Mrs. Trahan. Thank you. I will wait for panel 2. I yield
back.
Ms. Speier. Thank you, Mrs. Trahan.
Mr. Brown, you are recognized for 5 minutes.
Mr. Brown. Thank you, Madam Chair. Thank you for allowing
me to waive on to this panel. I am going to have a longer
statement to make before the second panel. So I will just jump
into some questions for our panelists.
For Colonel Christensen and Ms. Farrell, thank you for
being here.
This is the concern I have on looking at what we did in the
NDAA to ask GAO to study this issue and then in the NDAA
putting to the DOD to come back with an assessment of what the
causes are. And here is the concern I have, so I need some
help.
Colonel Christensen, you said that you witnessed a case
where a Black man was 6 minutes late for formation. He was
court-martialed. You never saw that with a White service
member. When you talk about implicit racial bias, typically, in
that case, if you would have brought to that commander, ``Hey,
look you just sent to court-martial a Black guy, and in the
last month, we have had three White guys, 6 minutes, 7 minutes,
10 minutes late, and you didn't do it,'' often with implicit
bias, that commander might say, ``Ah, wow, you are right; let
me take a look.'' It is often benign. It is unknown. When
brought to the attention of the offender, if you will, they are
willing to make corrective action.
From everything, Mr. Christensen, that you said about your
efforts to get information from DOD, their unwillingness to
explore the causes of this disparate racial impact in military
justice, I am concerned that, in the GAO study, we are putting
to the DOD too much responsibility to come up with guidelines
for how to address disparities, discover or research the causes
of disparity, and develop a uniform set of demographic criteria
or classifications so we can better understand it.
Here is my question: What can Congress do today to ensure
that DOD is doing these things in the GAO report, that gets
beyond the resistance that you and your organization, Colonel
Christensen, have seen?
What are some specific things that we should be doing?
Colonel Christensen. Well, a great start is what we are
doing right now. It is definitely putting the DOD on notice
that this is something Congress is concerned about. But I think
Congress needs to send a message to the various services that
they do not expect that this is going to be a quick solution.
So, for example, my understanding is the Air Force IG wants to
have the investigation wrapped up by the end of July. That is
ridiculous. This is a decades-long problem. You are not going
to find problems and solutions and causes in 2 months.
The second thing is the Congress needs to make clear to the
DOD that they expect them to be reaching to outside entities to
help with the solution: true experts on disparity, true experts
on what causes racial bias, true experts on finding racial
discrimination. And then, as has been required in the most
recent NDAA, that they continue to report back to Congress with
the same vigor that they do with the sexual assault report that
is released each year. That has to have the same kind of
detail, the same kind of depth to it.
Mr. Brown. Ms. Farrell.
Ms. Farrell. Well, I will pick up where Mr. Christensen
left off in terms of external reporting. That is one of the
recommendations that we have seen progress on in terms of DOD
will, is expected to include because of the 2020 National
Defense Authorization Act; DOD is expected to include
demographic information in its annual reports going forward. So
that is going to help with the transparency. But that is still
quite a ways off. I think congressional oversight, periodic
congressional oversight is going to be necessary. I agree that
doing an evaluation of the causes is not something that can be
done in just a few months. Having a--prioritizing where DOD is
going to look at, which stages, in order to get behind and also
bring in consultants is going to be very important.
The NDAA requires DOD to commence the study for evaluating
causes this month. There is no end date. Again, it is going to
be very important, I think, for the House Armed Services
Committee, specifically this subcommittee and others, to have
DOD brief or have another hearing to understand what progress
they are making toward that final report on the causes.
Mr. Brown. Thank you. I yield back, Madam Chair. Thank you
once again for allowing me to waive on.
Ms. Speier. Thank you, Mr. Brown.
You are absolutely right. We need to have another hearing,
and I can promise you that there will be one. I want to thank
Ms. Farrell and Colonel Christensen for your testimony here
this afternoon. Let me just end with this statement, and see if
you agree with it.
Conviction rate at special and general courts-martial
remain about the same for Black and White service members, yet
significantly more of Black service members are brought to
court-martial. That appears to show two things: one, that
court-martials are not convicting because of race but evidence,
and, two, that commanders are preferring charges on more Black
service members for reasons other than the strong weight of
evidence against them.
I guess finally let me just ask you, is that a fair
statement?
Colonel Christensen. I do think that is a fair statement. I
honestly believe our court members try to do the right thing,
and I don't believe I ever saw a single panel where I thought
that they were racially driven in their verdict. I do worry,
again, that the decision, really what we are talking about is
that the White service member gets the benefit of the doubt;
their case doesn't go forward, their case is handled at a
different level than what the Black service members are.
Ms. Speier. Thank you.
Ms. Farrell.
Ms. Farrell. I did not hear all of that question, but I
think you were asking questions related to what GAO identified
at the beginning of the military justice process and what we
see at the end, and it is quite a different picture. As we have
discussed, actions are more likely to be identified at the very
beginning of the judicial process when a service member is
under investigation, by when we look at outcomes in terms of
convictions and punishments. For convictions, we found that
there was no statistically significant difference among races
in terms of conviction; and similar results for punishments, no
statistically significant difference except for Black service
members in the Navy were less likely to be dismissed or
discharged after a conviction, so that they are at opposite
ends of what we see in terms of disparities in the beginning of
the system and where we see them end up at the end.
Ms. Speier. Again, thank you both very much for your
testimony. We will take a short recess so we can bring our
second panel to the table and hear from them.
[Recess.]
Ms. Speier. Welcome back everyone. We will bring this
hearing to order once again. It is my pleasure now to introduce
our next panel. We will start with Lieutenant General Charles
Pede, Judge Advocate General for the United States Army;
followed by Vice Admiral John Hannink, Judge Advocate General
of the U.S. Navy; Lieutenant General Jeffrey Rockwell, Judge
Advocate General for the United States Air Force; and, finally,
Major General Daniel Lecce, the Staff Judge Advocate to the
Commandant of the Marine Corps.
General Pede, we will begin with you.
STATEMENT OF LTG CHARLES N. PEDE, USA, JUDGE ADVOCATE GENERAL,
UNITED STATES ARMY
General Pede. Madam Chairwoman, Ranking Member Kelly, and
members of the committee, thank for this opportunity.
Ms. Speier. I am sorry, General, could you move that
microphone a little closer to you.
General Pede. Absolutely. How is that.
Ms. Speier. Better. Thank you.
General Pede. Madam Chairwoman Speier, Ranking Member
Kelly, and members of the committee, thank you for this
opportunity. We meet on a topic of vital importance to our Army
and to our Nation: ensuring that every soldier who swears to
defend our Constitution is guaranteed its foundational promise,
equal justice under the law. This has been my charter across 32
years of service, and it is the commitment of the Army Judge
Advocate General's Corps and the Army leadership.
As recent events made clear, that promise remains unfilled
for too many in our Nation. Just 2 days ago, we in our Army
celebrated its 245th birthday. Because of the service and
sacrifice of many, I believe that today our Army represents our
country's best ideals more than ever. Yet I also believe that,
like the country we serve, there is still much more that must
be done.
Our hearing today reminds us of the origins of our Uniform
Code of Military Justice. It was born out of a concern for
fundamental fairness for those suspected of a crime. Our code's
due process guarantees--zealous defense, impartial judges, and
robust appellate review--are its cornerstones. Over the years
and thanks to the work of many on this committee, the code has
been reformed and improved while its central purposes have been
preserved, promoting justice while ensuring discipline. These
are the pillars upon which our combat effectiveness rests, and
they are the reasons why our Army is the best in the world. But
as good as our justice system is, we can never take for granted
its health or its fairness. It requires constant care, by well-
trained law enforcement, educated commanders, and qualified
attorneys working together with the Congress, we have brought
our justice system much closer to the full realization of equal
justice for all. But close is never good enough.
In May 2019, the GAO found racial disparities in our
justice system. While it reached no conclusion on the causes of
these disparities, this report raises difficult questions,
questions that demand answers.
Sitting here today, we do not have those answers, so our
task is to ask the right questions and find the answers. I am
joined by my partner in this effort, the Army's Provost Marshal
General, my partner in this effort, Major General Kevin Vereen.
General Vereen supervises our military police, our criminal
investigators, and our criminal laboratory. Based on the GAO's
findings, the effort to examine our system is a shared
responsibility--with us and with our commanders. As we assess
this issue from investigations to command decisions to the
disposition phase, we must do so with a common framework and
the right stakeholders.
That effort must start with seeing ourselves. This began
last year as we began implementing the GAO's recommendations.
We are also working with the other services to execute section
540I of the NDAA. That now visionary statute directs us to
identify, investigate, and resolve potential disparities in
justice.
Finally, we continue to improve our internal data sharing.
Recently, General Vereen and I established a link between his
law enforcement database and our justice database, allowing a
degree of interoperability and transparency that never existed
before.
These efforts began before the recent tragic events and the
national conversation that followed our Nation--followed across
our Nation, and within our formations. As that conversation
demonstrates, data alone cannot tell the full story. We must
look beyond the data and ask the difficult questions. General
Vereen and I, along with Army leaders, need to look hard at
ourselves. With commanders we must look at the causes, and we
must understand how preconceptions and prejudice can affect
both the investigation and disposition of misconduct. While my
experience tells me we have an extraordinarily healthy system
of justice, I also recognize we simply do not know what we do
not know. And it is our job to discover what needs fixing and
to fix it.
To do this, I have directed a comprehensive assessment with
the Provost Marshal General to get left of the allegation, left
of the disposition decision, to examine why the justice system
is more likely to investigate certain soldiers and what our
investigations and command decisions tell us about this issue.
Finally, we know that each of us is shaped by our own
backgrounds and experiences. As the Secretary, our Chief, and
our Sergeant Major recently reminded us and which I echoed in
my own message to my corps, leaders of all ranks must listen
with compassion and humility.
I believe our justice system is one of the best in the
world, but I also know it is not perfect. A justice system must
be both just for, and seen to be just by, all. We have much to
learn and more work to do. General Vereen and I, along with the
Army leadership, look forward to working with this committee,
to understand the problem and to address it. Thank you.
[The prepared statement of General Pede can be found in the
Appendix on page 92.]
Ms. Speier. Thank you, General Pede.
Admiral Hannink.
STATEMENT OF VADM JOHN G. HANNINK, USN, JUDGE ADVOCATE GENERAL,
UNITED STATES NAVY
Admiral Hannink. Chairwoman Speier, Ranking Member Kelly,
thank you for the invitation to testify on the issue of racial
disparity in military justice.
The Department of the Navy guidance emphasizes several
things about equal opportunity. The first is that sailors and
Marines are our most precious resource; second, that unlawful
discrimination undermines a unit's ability to function
effectively and cannot be tolerated; and, third, that we must
overcome any bias or any stereotype that diminishes
cohesiveness, camaraderie, or morale.
In a recent message to the fleet, Admiral Gilday, the Chief
of Naval Operations, commented on this. He said: In the Navy,
we talk a lot about treating people with dignity and respect.
In fact, we demand it. It is one of the things that makes us a
great Navy.
And then, observing recent events in our Nation, Admiral
Gilday added: We can't be under any illusions about the fact
that racism is alive and well in our country.
And I can't be under any illusions that we don't have it in
our Navy. We cannot have those illusions.
And so the Navy emphatically and unequivocally denounces
racism. It is antithetical to our core values of honor,
courage, and commitment. It is antithetical to our obligation
as service members to support and defend the Constitution and
to help protect the rights afforded to all Americans.
The military justice system must operate without
discrimination, without racism. All sailors must be able to
have confidence in the fairness of the system. A May 2019 GAO
report identified some disparities related to race and
ethnicity. To summarize those that were identified for the
Navy, Black sailors were more likely than White sailors to be
the subject of an investigation in the database used by the
Naval Criminal Investigative Service and other Navy law
enforcement elements. The same for Hispanic service members.
Black sailors were also more likely than other White sailors to
be tried by a general or special court-martial. So were
Hispanic sailors.
When it came to assessing the results of court-martial,
there was no significant difference between the conviction
rates for Black, Hispanic, or White sailors. And as the GAO
witness noted on the last panel, for those found guilty, Black
sailors were less likely than White sailors to receive the
punishment of discharge or dismissal.
The GAO was correct that there may be disparities at
different points in the system, and we appreciate the
recommendations they made to help.
When those are combined with the requirements of section
540I of the fiscal year 2020 NDAA, my hope is that will result
in improved data collection, a process to determine when that
data should be reviewed, and an evaluation to identify the
causes of the disparities.
Now, regarding data collection, the Navy and Marine Corps
case management system has been updated to collect the race,
ethnicity, and gender of victims and accused of each general
and special court-martial.
I have more work to do in two areas. The first relates to
summary courts-martial because the Navy prosecution offices
often are not involved directly in the summary courts-martial,
and we are reviewing procedures needed to collect the
associated data. And as the GAO witness observed, the second
relates to nonjudicial punishment; they recommended the Navy
consider how we might maintain nonjudicial punishment
information in a database and how to implement this
recommendation remains under review.
The Navy is also taking steps to prevent racial bias
through training. This is not a panacea, but we can't let up.
The Naval Leadership and Ethics Center provides training on
unconscious bias for prospective commanding officers, executive
officers, and other leaders. The Naval Criminal Investigative
Service trains agents on diversity and inclusion, on
unconscious bias and cross-cultural communications to prevent
racial profiling in investigations.
We also provided training on unconscious bias and inclusion
and diversity within the Judge Advocate General's Corps
community.
The Navy is committed to ensuring the military justice
system is fair for everyone. I look forward to working with you
to improve our data collection and to identify, understand, and
address these disparities. Thank you.
[The prepared statement of Admiral Hannink can be found in
the Appendix on page 97.]
Ms. Speier. Thank you, Admiral Hannink.
General Rockwell.
STATEMENT OF LT GEN JEFFREY A. ROCKWELL, USAF, JUDGE ADVOCATE
GENERAL, UNITED STATES AIR FORCE
General Rockwell. Madam Chair Speier, Ranking Member Kelly,
distinguished members, thank you so much for the opportunity to
address the importance of eradicating racial disparity in our
military justice system, ensure fairness, inclusion, and
diversity for all air and space professionals in the Department
of the Air Force. An inclusive and diverse force is absolutely
necessary to defend a diverse and inclusive Nation.
Like many of our civilian counterparts, we collect data on
race in the military justice process. Our data shows that Black
male airmen below the rank of E-5 and with less than 5 years'
time in service are almost two times more likely to receive
nonjudicial punishment, an Article 15, or face courts-martial.
While we review specific cases to ensure there is not disparate
treatment based on protected class, we don't have clear answers
or underlying reasons as to why the disparity exists.
Like all difficult issues the Nation faces, solutions to
address that disparity will require whole-of-government and
societal approaches. We are committed to working with you to be
part of that solution.
Throughout our history, we have defended the Nation, fought
and won our wars because of four simple yet key components:
first, the best people; second, the best training; third, the
best equipment; and, fourth, the most important element that
binds us together--discipline. Discipline lies at the heart of
what the Nation expects of its military in the execution of our
national defense missions. Discipline must be developed from
day one. Discipline must also be earned by the military
establishment by treating all of our members with dignity and
respect with equal opportunity to meet and exceed standards. We
try to do that through inclusion, feedback, mentoring, along
with the administration of progressive discipline when airmen
make mistakes before they become a disciplinary statistic. As
our Secretary and chiefs recently stated, our diversity
strengthens us as much as our common mission unifies us. The
Department of the Air Force strives to foster a culture of
inclusion and respect where every airman and space professional
is valued for the talents he or she brings to the department
regardless of race, color, or creed.
Our struggle against racism and other forms of
discrimination cannot be viewed as finite battles. Rather our
approach must be infinite, a constant struggle for betterment.
When President Truman signed Executive Order 9981 in 1948, he
set in motion racial integration of our Armed Forces. Twenty-
five years later, a 1972 task force found intentional and
systemic discrimination in the military justice system.
Many of the proposals identified then were adopted. Today,
while we believe that we no longer have intentional
discrimination in our processes, the fact is that racial
disparity in the aggregate persists.
This demonstrates the complex and challenging nature of the
issue, symptomatic or indicative of one of many symptoms, a
daunting problem but one that should not stop us from exploring
what we can do in the disciplinary process to serve as part of
the solution set. Addressing it requires a holistic approach.
Every day across the continuum of discipline, we are
committed to finding new solutions and approaches. Every air
and space professional, military and civilian, from the most
senior to most junior, is responsible for fostering and
reinforcing a culture of inclusion, dignity, and respect. Like
everything we do in the military, this requires a team effort,
especially to get to the root causes of this difficult problem.
We can frame an approach by asking ourselves four
juxtaposing questions. First, while easy to say our data merely
reflects or is perhaps better than the society from where we
come, what can we do in the armed services?
Second, while easy to say the specific cases show no actual
disparate treatment in the decision made, are we really
including, mentoring, and administering progressive discipline
equally to all before they become an Article 15 or a court-
martial?
Third, while easy to say justice was color-blind in each of
the cases, are there administrative and substantive due
processes which are discriminatory in treatment or impact?
And, fourth, finally, while easy to say the data shows that
the aggregate disparity disappears after the first 5 years in
the force, what can we do to eradicate that disparity earlier
and altogether?
We look forward to working with the subcommittee on this
most important issue.
[The prepared statement of General Rockwell can be found in
the Appendix on page 106.]
Ms. Speier. Thank you, General Rockwell.
General Lecce.
STATEMENT OF MAJGEN DANIEL J. LECCE, USMC, STAFF JUDGE ADVOCATE
TO THE COMMANDANT OF THE MARINE CORPS, UNITED STATES MARINE
CORPS
General Lecce. Madam Chair Speier, Ranking Member Kelly,
members of the Military Personnel Subcommittee, thank you for
your invitation to represent the Marine Corps on the issue of
racial disparity in the military justice system.
The Marine Corps is dedicated to ensuring equality
throughout its ranks, from the most junior Marine through our
senior leadership. Although we have come a long way, we
recognize that much must be done. Several months ago, the
Commandant sought a way forward to remove the public display of
the Confederate battle flag from Marine Corps installations
because of its divisiveness and association with hate and
discrimination. Three weeks ago, the Marine Corps issued a
specific direction to the fleet to remove the Confederate
battle flag from all Marine Corps installations across the
globe.
In his message to the Marine Corps regarding the
Confederate battle flag's removal, the Commandant stated,
quote, ``Only as a unified force, free of discrimination,
racial inequality, and prejudice, can we fully demonstrate our
core values, and serve as the elite warfighting organization
America requires and expects us to be.''
To that end, the Commandant is committed to implementing
the findings of the GAO report.
Disparities the GAO highlighted in our administration of
the justice system in the Marine Corps require immediate
scrutiny and demand action. The implicit trust Marines place on
one another makes elimination of racial inequality an
imperative. As the Commandant stated, any form of racial
inequality, whether it be direct, indirect, intentional, or
unintentional, threatens the cohesion of the Marine Corps and
must be addressed head on.
The GAO published two recommendations specifically
addressed to the Department of the Navy. First, they
recommended--they highlighted the need for our personnel,
investigation, and military justice databases to use
standardized data relating to race, ethnicity, and gender.
Second and similarly focused on standardized data collection
for our nonjudicial punishments and summary courts-martial. My
written statement provides in greater detail the Marine Corps
specific actions and intentions stemming from the GAO's
recommendation. Improved data collection brought about by
changes within last year will help us to collectively and
comparatively assess data to identify racial and ethnic
disparities. But we will not wait for better data to address
and fight inequality now. How we train, educate, and foster
Marines within our Corps is paramount to ensuring the equality
across our fighting force and within the military justice
system.
Training and education serve as the fundamental components
of eliminating racial bias. To this end, the Marine Corps is
pursuing inclusion of unconscious bias training curriculum at
every level of professional development. Respective commanders
and senior enlisted leaders receive training on bias awareness
through the Marine Corps University. Unit Marines receive
comparable training from small unit leadership. Even our
military justices have undergone similar training on
unconscious bias within the past year. Such training and
decisive senior leader action, such as the Confederate battle
flag's removal, may not resolve the disparities overnight, but
our commitment and determination to ensuring equality among
Marines remains steadfast and enduring.
Thank you, and I look forward to working with you on this
important issue.
[The prepared statement of General Lecce can be found in
the Appendix on page 112.]
Ms. Speier. Thank you, General Lecce.
Thank you all for your testimony.
I would like to start by asking a simple question on
transparency. We work for the public. And the fact that,
General Rockwell, you fought the FOIA requests from Protect Our
Defenders for over 3 years is deeply troubling to me,
especially when it was said by the judge that--this was at the
aftermath of the Air Force Manpower found that racial
disparities are consistent, persistent, and getting worse. And
the judge then said, when they attempted to get information
about what you were doing about that and you refused, the judge
said: This was an exercise which went nowhere.
So tell me and the American people, what was, who was
benefited by not being forthright in complying with the FOIA
request?
General Rockwell. Madam Chair, as you know with FOIA and
you know the exemptions under FOIA and you know in this case
which FOIA exemption was invoked here, it was the deliberative
process pre-decisional.
Ms. Speier. But that is always used when people don't want
to comply with FOIA.
General Rockwell. Yes, ma'am. And when we looked at the
underlying root causes, and of course the data was released and
the data showed exactly what you explained. The underlying
reason, the root causes of the 11 or 12 people on the working
group, there were 11 or 12 different answers as to what that
root cause was. And that truly, ma'am, did fall into why we
protect that.
Ms. Speier. Except you didn't do anything about it. That is
the problem. You stand up this Air Force Manpower to do this
evaluation, they come back with a pretty compelling statement,
``consistent, persistent and getting worse,'' and then you do
nothing about it. So how is that deliberative?
General Rockwell. Yes, ma'am. Well it is consistent and it
has been since we have been collecting the data since 1972. It
is persistent because it is consistent. As far as it getting
worse, it has pretty much stayed the same at least in the Air
Force across this time. But one thing that we do know in the
Air Force is to create this zone of innovation, this creative
problem solving, these creative solutions, you have to give
people, ma'am, the ability to really just look at this issue in
different ways.
Ms. Speier. I agree with you. I am going to move on. Thank
you.
General Rockwell. Yes ma'am.
Ms. Speier. Admiral Hannink, the request for FOIA, the
request was I think from 2006 to 2016. You provided only
information and data from 2014 and 2015.
Why did you not provide the entire request?
Admiral Hannink. Madam Chair, I will have to take that
question for the record. I know we switched case management
systems in about 2014, and I think it likely was dealing with
the data and the amount of good data that we could deliver. But
I will get back to you with the final answer.
[The information referred to can be found in the Appendix
on page 121.]
Ms. Speier. All right. Protect our Defenders, when they
came out with the report, found that the Air Force was 71
percent more likely to have Black airmen face court-martial
than Whites; Army was 61 percent; Navy was 40 percent; the
Marine Corps was 32 percent.
Did any of you reach out to Protect Our Defenders to find
out more about their study or how they could be helpful to you
in dealing with this problem?
General Pede.
General Pede. Ma'am, I can't say today that I know
specifically what communications we had with POD [Protect Our
Defenders] during that time. I can get that answer back to you,
but I can't say right now.
[The information referred to can be found in the Appendix
on page 121.]
Ms. Speier. Do you have any intention of working with them
moving forward?
General Pede. Ma'am, we have talked with POD. We have
digested their materials. We have used it to inform us. But I
think we also spent a fair amount of time, an extensive amount
of time with GAO and its data request as well. So we have a lot
of people asking us for information. So we provide as best we
can and certainly in accordance with the rules what we should
provide to not only private organizations but certainly
governmental organizations.
Ms. Speier. Thank you. I am running out of time.
Admiral Hannink, did you reach out to POD to learn more
about their process or how they might be helpful?
Admiral Hannink. Madam Chair, I did not. What I don't know
is if anybody from our organization did, but I wish I had acted
earlier.
Ms. Speier. Thank you. General Rockwell.
General Rockwell. No, ma'am. We are very much looking
forward, though, to seeing what the field thinks about this,
and this is what is behind our IG independent review of this,
where we will talk to the very same people in the field that
POD has been talking to, with a multidisciplinary team to get
this type of feedback of what exactly is going on and what are
those root causes.
Ms. Speier. General Lecce.
General Lecce. Madam Chair, I did not, and I think that is
an area where we can do better.
Ms. Speier. Do any of you think that someone should be
court-martialed for being 6 minutes late to a formation
meeting?
General Rockwell. No, ma'am.
Ms. Speier. General Lecce.
General Lecce. Madam Chair, it would depend on the
circumstances. If it was in combat, absolutely. I think if it
was late for a meeting here in the Pentagon or in this chamber,
the answer would be no, ma'am.
Ms. Speier. My time has expired.
Ranking Member Kelly.
Mr. Kelly. I think we have to be real dangerous about using
partial facts and partial figures. Six minutes late is not a
big deal unless it is 6 minutes late delivering ordnance that
saves thousands of troops. Six minutes late is not a big deal
if it is to a meeting with a subordinate, but it is extremely
important if you are meeting with the President of the United
States or the Secretary of Defense. Six minutes late if it is
one time is not a big deal, 6 minutes late if it is a pattern.
So not knowing all the circumstances whether it was one 6-
minute thing or the other, I think is very dangerous.
I think Colonel Christensen was very dangerous in saying
that lawyers are less culturally biased than commanders. That
is a very dangerous assumption when he also said only 1 in 10
JAGs are African American. So we are lesser represented in the
JAG Corps, but, therefore, we are culturally superior to the
rest of these commanders. I think that is a very dangerous
assumption to make.
I think we have to be real careful. Here is what we know.
We know E-5s, people with 5 years and below, are treated
differently if they are African American when they are in the
armed services. We know that. So we know what we gotta get
after.
We know that it is seems the referral rates when they are
tried to the conclusion are the same. So that doesn't
necessarily mean that people are being referred that shouldn't,
it may actually mean the opposite, but we don't know.
So what we have got to do is, number one, figure out, how
do we quit being discriminatory, racially discriminatory to E-
5s and below and people with 5 years of service?
What do we need to do to remedy that situation?
Number two is we know we don't have African-American
fighter pilots. We know that the promotion rates sometimes are
slower to general officer or don't make general officer with
African Americans or minorities. We know some of the reasons,
and so we have to get after them. Anthony Brown has the ELITE
Act, which he is talking about. Let me tell you what, if you
are not a fighter pilot, you are probably not going to make
general. If you are not a submarine or a surface ship guy or an
aviator, you are not going to make admiral. You might. There
may be some JAG Corps, some signal, some logistics officers do.
If you are in the Army, if you are not a tanker or infantry
or combat arms guy, you are probably not as likely to make
general. We know this.
So what are we doing to get African-American kids into
those branches where we know promotions happen, where you get
the best schools because of the jobs that you do.
What do we do to encourage them? What are we doing as the
services to go after and make sure we have aviators who fly in
the Navy, who come off the decks of those carriers? What are we
doing to make sure that we have African-American pilots who
want to be F-35 pilots, which is more likely a quicker track to
being promoted to general or anything else?
What are we doing to make sure that African-American
soldiers at the E-1 through E-5 level are getting in the right
MOSes [military occupational specialties], the right branches
where promotions exist?
That is what we need to do.
And I don't mean to preach, but we have to get at the root
of this stuff. We have to quit talking about some of these
things that may be or might be. What we have to do, if you want
to stamp out the problem, you have got to figure out what the
problem is; you have to figure out what the root cause is. And
I think right now we are failing horribly at that.
So, with that being said, I want everybody here to tell me,
what are you doing in your service to figure out what the cause
is, therefore that we can make a change and a difference?
General Pede.
General Pede. Congressman Kelly, thank you. I think, from a
recruiting and promotion perspective, I think there is an
intense focus right now, and there has been. Our Chief of
Staff, Secretary, instituted an information-age talent
management system last year, and that in part is designed to
get after natural talent, and talent that implicit bias might
prevent from advancing. So I think there is a fair--there is
not just a fair amount of emphasis; there is significant
emphasis.
As I mentioned in my statement, I have directed with
General Vereen a look, a very deliberate assessment of trying
to get left of the allegation. What that means is, if we have
an overrepresentation coming into the investigative system, how
do we get in front of that allegation to figure out what is
happening when the soldier gets to the unit such that they get
in with let's say the wrong crowd or they start using drugs or
they start misbehaving? What is going on there? Or perhaps just
to the left of the disposition decision to send someone to
trial, is there something going on there?
So we are looking hard at implicit bias.
I take some comfort in this, when we started looking at
implicit bias in the arena of sexual assault about 10 years
ago, it is now replete through our training, not only
commanders but judge advocates throughout, and in my
assessment, professional assessment, it has had a significant
impact on the understanding of counterintuitive behavior in
sexual assault. We know training, education in implicit bias
works.
Mr. Kelly. Can you guys answer really quickly just like 15
seconds on what you can do to change that? Because I am out of
time.
Admiral Hannink. Thank you, Ranking Member Kelly.
First and foremost, I think we in the JAG Corps to fit in
with the Navy's overall effort in a culture of excellence. It
really is about emphasizing signature behaviors that give you
the respect that you talked with.
The second thing is we have focused on diversity
recruiting. We have a dedicated diversity liaison program, 18
officers, closely affiliated with 13 diversity and educational
organizations to try to keep connections so we keep that
recruiting pipeline open.
And then, like General Pede talked about, focusing on
unconscious bias. The reason that I think it works is because I
remember the first time I took unconscious bias training in
2014. It was only later when realized I had an unconscious bias
against unconscious bias training. I think it can be effective,
and I think we need to keep at it and keep moving that through
the force.
Ms. Speier. Very quickly, please.
General Rockwell. Ranking Member Kelly, we do it exactly
the way you said it. You expand the discipline continuum from
just courts and Article 15 and you go left. When you expand
that zone and you look at that, how you discipline somebody,
how you counsel somebody, how do you include somebody, how you
give them feedback is the holistic approach we have to take.
General Lecce. Ranking Member Kelly, very quickly, this has
to be top-down driven, and the Commandant has done that with
his recent action. Everybody has to get it, and it starts from
the top and he has driven that down.
We also have done it with our PAC order, prohibited
activities and conduct order, that gets after discrimination.
That has been on the books for 3 years. It involves an equal
opportunity advisor to the commander. It is a commander's
program.
Ms. Speier. Thank you. Mrs. Davis, you are recognized for 5
minutes.
Mrs. Davis. Thank you Madam Chair, and to all of you. We
appreciate your joining us today.
I am glad that my colleague, Mr. Kelly, talked about some
of the issues that you have already identified, and one of them
was about the 5 years. I think that is very important. What I
would like to know is about early warning signs. Is there an
understanding that we really need to look at that and that some
of that information should be collected as well?
Are there counseling sessions? Are there concerns about
retribution?
How do we begin to really understand that better and how is
that used?
The other thing that I think we are all talking about right
now is the element of White privilege. And I wonder to what
extent is that an area of discussion that really can be brought
in in the military as well?
How is that talked about?
Because as we well know, if you look at the data, there are
plenty of ways of seeing and suggesting and really being open
about how that affects us all, frankly. And I think we all have
in our own experience those examples and how it might have been
different if our son or our daughter was Black or Brown, what
does that mean?
I think that is an important discussion to have in the
services as well.
And then, finally, I just wonder, once we identify implicit
bias, what do we do about it?
If we were to go back into some and looking at the
progression of circumstances for someone and the outcomes, what
is it about that?
How do we identify it, and what do we do?
Really, talk about that a little bit as well. Thank you.
Ms. Speier. Do you want to start, General Lecce?
General Lecce. Madam Congresswoman, again, I believe it
starts from the top, and I believe it starts with these honest
and candid conversations in a safe environment. You can do this
in the military. We believe in the Marine Corps that this is
commander driven and commander owned, but you have to begin
with those. You have to view diversity within the force as a
strength and that begins with the Commandant all the way down
to the most junior ranks. You have to accept that as a strength
because, at the end of the day, that is what the Marine Corps
is about. It is about fighting as a team. Everybody on the
team, regardless of gender, ethnicity, or race is very
important, and that is the bottom line.
So, as my colleagues have stated here, pathways in
mentorship to young people to look at the military, to look at
the Marine Corps as a path for them. We have work to do there,
but we can do that.
These are things and steps that we are taking now. Thank
you.
General Rockwell. Ma'am, when I look at the numbers we have
right now and I see those numbers and it makes you realize that
the numbers are good data, at least from an Article 15 and a
court standpoint, it is not evidence. It is not evidence to get
to the root causes of the problem. So the last part of your
question, how do we train on bias, you look at the way
attorneys always look at things. You look to weed out bias to
get to the weight, relevance, and credibility of actual
evidence.
I think one of the approaches we must take is to develop
more data left of Article 15. We don't have that data. We kind
of know that is where the problem is. What we don't know and
what we can't answer for sure is, are we mentoring everybody
the same?
We all feel that we probably aren't based on those biases.
But we don't have the specific data to show that.
Once you get that data, of course, you move on to the
training, you move on to the speaking of bias, you move on to
the training of that, you move on to weeding that out and that
all creates an atmosphere of inclusion. You create that
atmosphere of inclusion, you just created diversity.
Ms. Speier. Thank you.
Admiral Hannink, I think Mrs. Davis has about 15 seconds,
but we will extend 15 seconds to each of you to finish your
comments.
Admiral Hannink. The only additional comment I would have
is I think the value of unconscious bias training and other
decision-making training is that you put yourself in the
position where you can take different perspectives and you
bring other people onto your decision-making team as well. And
that is very protective for the final decision-maker and
everybody on the team.
Ms. Speier. General Pede.
General Pede. Yes, ma'am. Thank you. I think you should
know as well that the Army not only is focused at the squad
level, and the squad level according to our Sergeant Major and
our Chief of Staff and Secretary, it is all about the team
building, and it is all about inclusion, and it is all about
bringing people on to one team so they all feel that they
belong. And that gives you a better ability to diagnose where
people are going left and right and center. I think that focus
by our Army leadership at every echelon all the way down is key
to getting after this, especially when it comes to unconscious
bias.
Ms. Speier. Thank you.
Mrs. Davis. Thank you.
Ms. Speier. Ms. Haaland, you are recognized for 5 minutes.
Ms. Haaland. Thank you, Madam Chair.
And thank you, Madam Chair, and thank you, Ranking Member
Kelly, for holding this hearing.
And thank you, panelists, for being here.
This is a significant problem that we absolutely need to
fix. We must ensure the systems we utilize to administer
discipline are fair and just for everyone. In the 1960s, my
father served in the Marine Corps and experienced firsthand the
maturation of the service into a fully integrated force, along
with the racial tensions that flared up during that time. We
have progressed since then, but we can all agree we still have
a long way to go.
It was disheartening to learn that, despite the data
presented in the 2017 Protect Our Defenders report and the 2019
GAO report, the services have responded with little more than
unconscious bias training to address widespread racial
disparities. Meanwhile, Black service members continue to
receive nonjudicial punishment at disproportionately high rates
compared to White service members, and I have to believe that
this is also a contributing factor to why we don't see service
members of color achieve higher ranks, which is an issue this
committee has consistently raised and which Ranking Member
Kelly so eloquently articulated just a few minutes ago.
General Rockwell, the Air Force spent nearly 3 years' worth
of resources, time, and energy refuting the Protect Our
Defenders report and preventing the data from being made
available to the public, and that time and those resources
could have been spent accepting that there is a major problem
and tackling it head on. It is clear the racial disparities
within our military justice system require more than just a
disparity board that met for 90 days to try to resolve it.
One of my questions, I have a few, will all of the work
that you have mentioned earlier about addressing these long-
term issues, will this include improving the collection of data
on race and ethnicity to make it more uniform across services
so it is easier to identify problems?
General Rockwell. Yes, ma'am, it will. We are making a
conscious effort to, again, move left of that Article 15 and
court-martial on the continuum and collect data, collect
meaningful data of inclusion and feedback and mentoring. I
think that is critical to getting to the root cause of the
issue here.
Ms. Haaland. Thank you. And what is the timeline for
actions to be taken, if you could just reiterate that, General
Rockwell.
General Rockwell. We are doing it now, ma'am. And right
now, the projected timeline, with the group that has been put
together with our manpower and reserve affairs and personnel
that we are a part of, is calendar year 2020.
Ms. Haaland. Okay. Thank you so much. And last question--
well, maybe the last question, General, depending on my time,
how will the progress be measured?
General Rockwell. I think ultimately you measure progress
by eliminating that racial disparity. You get to where we are
right now in the Air Force at the E-5 level with 5 years in,
where there is no disparity. I think that has to be the
ultimate goal of where we should get to.
Ms. Haaland. Thank you so much. And I have a little bit of
time. So I will ask this next question. I understand the
inspector general will be leading a review on racial
disparities and causal factors, like culture and policies. The
scope and demographic makeup of this review panel can certainly
make a difference in its effectiveness and what its
recommendations look like. Can you describe the makeup of the
panel?
General Rockwell. I don't have the full details. We have
three members on that panel, but it is fundamentally a large
panel. It has general officers on it who are Black and African
American. It has chiefs on it, senior enlisted, who are African
American, and it is multidisciplinary and multidiverse.
Again, the idea is to get left of Article 15, and to get to
that, there are so many different factors that need to be
looked at. And I think what is going to be key is reaching down
into what people feel on the ground, and that is really the
focus of what they are trying to get to.
Ms. Haaland. Thank you so much.
Madam Chair, I yield.
Ms. Speier. Thank you, Ms. Haaland.
Mr. Cisneros, you are recognized for 5 minutes.
Mr. Cisneros. Thank you, Madam Chair.
And thank you all, gentlemen, for being here today. You
know, we have a problem in this country with sentencing in the
civilian law enforcement there, our criminal justice system.
People of color tend to get longer sentences than White
individuals do.
Is this something we are looking at in the military as
well? We know we have a problem with E-5s and below going to
court-martial or receiving NJP more often than White service
members do, but are we looking at the sentencing, and really
are these individuals of color being sentenced more harshly
than their White counterparts?
General Rockwell. Sir, I will go first. As we looked at
this issue with regard to the GAO report, as a matter of fact,
Black airmen are sentenced less severely than White, and that
is both with Article 15 punishments and court-martial
sentences. I think all that tells us is this issue is much more
complex than we can really wrap our hands around.
Mr. Cisneros. General, and, again, correct me if I'm wrong,
but that was for more senior members, E-5 or above E-5, right?
I am talking about the more junior ranks.
General Rockwell. No, sir. Even the E-1 to E-5 ranks, where
you see the racial disparity, when you break it down further in
the Air Force, White airmen are actually punished and sentenced
more severely than Black airmen.
Ms. Speier. Would the gentleman yield?
Mr. Cisneros. Yes, ma'am.
Ms. Speier. In the GAO report, it said that Black and male
service members were more likely than White and female service
members to be tried in summary courts-martial and to be subject
of nonjudicial punishment in the Air Force and the Marine
Corps. How does that square with what you said, General?
General Rockwell. Yes, ma'am. That is in venue selection.
More go to that venue, that court-martial. But at the end of
it, when they are actually--if they are convicted and punished,
their sentences are less in the Air Force.
And, again, ma'am, I don't know what that means. It is just
as you pull apart the data and analyze it, that is what we see
in the Air Force. I don't know if that is the case in the other
services.
Mr. Cisneros. You know, if I could for the other services,
if I could take those answers for the record.
[The information referred to can be found in the Appendix
beginning on page 121.]
Mr. Cisneros. I have another question regarding the
collection of data in regard to NJP and commanding officers. As
we are doing the NJP, as you are collecting this data, are we
collecting individual data for these commanding officers,
looking at their records and trying to find these racial
disparities and how they are dishing out punishment? And if so,
if we are starting to see these racial disparities in the
punishment that they are issuing, are they being counseled at
all?
And anybody can take that question. I would like to hear
from everybody, if I could.
General Pede. Congressman, this is General Pede from the
Army. I think the short answer is, if we looked at our data
collection today, we do not track that data.
Mr. Cisneros. I can't hear anything right now.
General Pede. My mike is activated. Can you hear me okay?
Mr. Cisneros. I hear you now.
General Pede. Sir, this is General Pede from the Army.
Sitting here today, we do not track a particular commander's
dispositions by command or by race. And so I think, in terms of
our reflections on how we get after the notion of potential
bias, whether unconscious or deliberate, that is part of I
think our assessment.
When General Vereen and I talk about how a law enforcement
officer reacts at a scene of domestic violence or how a
commander disposes of nonjudicial punishment, I think this is
one of the areas that we look at.
I would tell you, though, in practice, as a practicing
judge advocate in the field for 32 years, those indicators are
evident to any judge advocate or other leader at echelon,
whether it is a brigade commander or division commander. They
see things in their formation, especially particular commanders
who are doing things that appear to them odd or suspicious or
curious. I myself on only one occasion in 32 years remember a
commander in such a circumstance as you suggest. It is worth
looking at. I think we have to, and I think it is the
responsible thing to do in our assessment. Thank you, sir.
Mr. Cisneros. You know, with that, Madam Chairwoman, I
yield back my time, but I would like to hear a response on the
record from the other judge advocate generals. Thank you.
[The information referred to can be found in the Appendix
beginning on page 121.]
Ms. Speier. All right. We will ask that you prepare a
response for the record.
Thank you, Mr. Cisneros.
Now Mrs. Trahan is recognized for 5 minutes.
Mrs. Trahan. Thank you. Thank you, Madam Chair.
And in case it wasn't clear before, I do want to state for
the record that I am grateful for the leadership of Chairwoman
Speier and the MILPERS [Military Personnel] Subcommittee
because, back in 2012, when addressing sexual assault and
harassment reporting, I think it led to substantive changes in
the DOD culture. But when it comes to equality and justice, I
mean, we are an impatient Nation.
So I am going to ask the same question that I asked before
in terms of convening authority, and if you believe convening
authority should be left to commanders or do you think that the
current process increases the risk of unconscious or even overt
bias within our military justice system?
Ms. Speier. Mrs. Trahan, can you return to the video
portion? We don't see you.
Mrs. Trahan. Oh, I am sorry. I am sorry.
Ms. Speier. That is all right.
Mrs. Trahan. Can you see me now?
Ms. Speier. We see you now.
Mrs. Trahan. Thank you.
General Pede. Ma'am, this is General Pede from the Army.
You have probably heard me say this before, but I have complete
confidence in our commanders to administer justice fairly and
dispassionately, especially at the senior levels.
It is not that I don't have faith in lawyers. I love my
Corps. I love the judge advocates we recruit, train, and
educate and nurture and culture, but there is no monopoly on
bias or unbias. There is no monopoly on wisdom in your legal
branches. I look to the Federal and the State sector. And I am
not trying to throw anybody under the bus, but that is a
lawyer-controlled system.
And by any measure, whether it is The Sentencing Project or
DOJ [Department of Justice] Bureau of Statistics, the racial
disparities in those systems are well in excess of what you
find in the military services. That is not by way of excuse,
but that is a lawyer-controlled system.
So I don't believe the answer is lawyers. I believe the
answer is a set of crosschecks and balances between law
enforcement, commanders, and lawyers looking at each other in
the system and keeping each other honest. Thank you, ma'am.
Mrs. Trahan. Anyone else want to comment on that or anyone
have a different view? Okay. Then I am going to go to my
question.
Given that I am sure you are all looking inward with a lot
of urgency, one of the GAO's findings was that, while Black and
Hispanic males were more likely than White service men and
women to be tried in general and special courts-martial across
the services, race was not a statistically significant factor
in the likelihood of conviction.
And so I am wondering, what do you believe that data says
about the military justice system? Could it indicate that the
bias is more prevalent amongst our junior leadership ranks who
are recommending service members for NJP or courts-martial than
amongst the senior leaders who are ultimately sentencing them?
General Rockwell. Congresswoman, I think this goes back to
the first question, and you can really dovetail the answer into
the first question of what you just asked.
When you look at what a commander does of setting the tone
and then the commander setting that command climate, and you
look at this issue and you--and we think we know where the
answer is, where the targets are, where the targets of
opportunity are, that is left of 15, we know then that where
this has to happen, where the unconscious bias needs to be
eliminated, where the mentoring and the inclusion happens is
that first-line E-5 supervisor over those E-4 and below airmen.
And when you look at setting that command climate, knowing
the commander has to do that and then letting that supervisor
do that, that is where we need to focus the help, the training,
the data and everything we need to collect.
Mrs. Trahan. Does anybody else want to add anything to
General Rockwell's comments?
General Lecce. I think, Madam Congresswoman, I think from
the Marine Corps perspective, there are two pieces. The GAO
report was pretty clear that, although they showed bias in the
data, they cannot conclude unlawful bias because we don't fully
understand the data.
So I think, number one, you know, to General Pede's point,
we have to kind of get left of the problem and figure out what
this data exactly means. But second and more importantly and
something that the Commandant has made clear is that commanders
have to get after this in setting the tone, training and
educating their subordinate personnel about the importance of
this, of equality and diversity in the force and how that makes
us stronger. And I think that is something that the Commandant
himself has really gotten after and that we are taking very
seriously in the Marine Corps.
Mrs. Trahan. Well, I appreciate all that. I mean, certainly
what you want to back up the data with, you know, a root cause
analysis along all of those sort of stage gates. And I
understand that the Air Force is going to be completing
anonymous surveys.
General Rockwell, will those findings of the surveys, will
those be public?
General Rockwell. Yes, Congresswoman, I imagine they will
be. I will defer all that to the IG who is running it so we do
get an independent look at this. Yeah, I can't believe those
results will not be open and transparent.
Ms. Speier. All right. Mrs. Trahan's time has expired.
Thank you.
We will now go to Mr. Brown for 5 minutes.
Mr. Brown. Thank you, Madam Chair. Again, I want to thank
you and the ranking member, Representative Kelly, for allowing
me to waive on this afternoon.
I want to thank each of our panelists for testifying today.
I want to thank you for your service to our Nation and in our
Armed Forces and for your stated commitment to end racial
disparities in our military justice system.
We are at a difficult time in our Nation's history; a time
when racial injustice is seen in the violence against Black
Americans by local law enforcement; a time when persistent
racial disparities in health are illuminated by the stark
contrast we are witnessing in the disproportionate prevalence
of COVID-19 death and infection among Black and Brown
Americans; a time when almost every racial disparity
experienced in this Nation, in our educational systems, our
criminal systems, our workforce, are compounded by this
pernicious pandemic.
And, today, we are at a difficult time in America's
military. An institution that led this Nation in racial
integration almost 75 years ago is now confronted with growing
White nationalism in our ranks; an institution that saw the
first African-American first captain at West Point 40 years
ago, now-retired Army General Vince Brooks, yet it took until
last week before we could confirm our first African-American
service chief, General Brown of the Air Force, and we still
have a military whose 61 four-star flag officers only include 2
African-American officers among them; an institution that
benefited from the courageous service of nearly 1,000 pilots
during World War II who completed the Tuskegee training
program, yet today there are only 446 minority fighter or
bomber pilots and navigators in the Armed Forces, less than 2
percent of our pilots are African American; an institution that
after World War II, in 1951 began to operate under the UCMJ,
which in many ways has been way ahead of the changes, the
positive changes in the civilian criminal justice system, in
terms of the rights of accused and of defendants, yet today
grapples with racial disparities in the disciplinary treatment
of men and women in uniform. That is where we are today in our
Nation and in our military, and it cannot be where we are
tomorrow. We have work to do, and we need to do it now.
Gentlemen, I take a lot of stock in the work of the GAO,
and they came back I thought with a thoughtful report and list
of recommendations on how we can get better.
And my question is, what more do you need from Congress in
order to complete your evaluation of the causes of any
disparities in the military justice system, and are you
consulting any outside resources that have expertise in this
area in order to complete this evaluation? We can start with
the Army. We will go down to the Air Force, then the Navy.
Ms. Speier. General Pede.
General Pede. Yes, ma'am, thank you.
Congressman Brown, thank you so much for the question. As
to what we need from Congress, I think, as I mentioned in my
statement, the care and attention, the desire, the passion you
bring to these issues to help us help ourselves, to see
ourselves, is critical. So I think that will continue. I know
it will. And I want you to know personally I welcome it, and so
does the Army leadership.
With respect to outside resources, sir, with respect to
causality, we are in the very early stages of figuring out what
can cause this. So we are developing a framework, well, this
very week and last week to figure that out. I fully expect that
that will include outside assistance. Thank you, sir.
Ms. Speier. Thank you. Admiral Hannink.
Admiral Hannink. Sir, I think section 540I of the NDAA was
an excellent roadmap. I think that point was emphasized by the
witness from the GAO. I think the focus on data collection and
then solid assessment, understanding, and then what to do about
the disparities is the right way ahead.
I agree with General Pede on outside assistance. I think
that it is going to be important this look be deliberate, that
it be thoughtful, and it is not going to be over quick. We are
going to have to continue this effort, and that is where I
think the outside resources can be incredibly helpful.
Ms. Speier. General Rockwell.
General Rockwell. Sir, I have a lot of faith in what our IG
independent review is going to do. I have a lot of faith that
they are going to look at this internally and holistically. I
also have a lot of faith in our Manpower and Reserve and A1
team, who is leading the effort.
Now, you asked the question about what kind of outside help
are we getting. That manpower and personnel team is getting a
lot of outside help. So I have quite a bit of faith in that to
see what else can we do to get to this elusive solution set
here.
Ms. Speier. General Lecce.
General Lecce. Mr. Congressman, I don't believe at this
time we need any help from Congress, but I appreciate the
opportunity to testify here. We just have a lot of work to do.
We just have to get after this.
We realize that we are at the beginning. We are working at
looking at data. We are trying to understand the data. But
there is a lot of hard work that has to be done. And, again, I
keep--you know, the Commandant is my boss. I keep mentioning
him because he has made this an important plank in his
commandancy, and he is driving it. And I think that that is
what we need throughout every echelon of the Marine Corps.
Commanders need to drive this. They need to make it important.
And I think that starts these candid and open conversations
about how we get after this. And that is what the Marine Corps
is doing.
Mr. Brown. Thank you, Madam Chair.
Ms. Speier. Thank you, Mr. Brown.
Mr. Kelly, do you have any final words?
Mr. Kelly. No, ma'am.
Ms. Speier. All right. Generals and Admirals, thank you so
much for your participation today and for your commitment to
the rule of law.
Let me just end with a few comments. 540I was put into the
NDAA not by you, not at your request, but at Congress' request.
So, while you are relying on that now to recognize that there
is work to be done, it would have been a whole lot better if it
had come from you.
General Lecce, you have said it a number of times: it
starts at the top. And you are right. And I hope you convey to
all of your chiefs of staff how critical this is to the
Congress of the United States.
General Pede, you said that, much like sexual assault and
sexual harassment in the military, we have to focus on this
with the same laser focus that we have provided for that issue,
and I agree with you.
We are at a transformational point in this country,
civilian- and military-wise. And I think that there is a lot of
work to do, there is a lot of data that has to be collected,
but we have to make sure it is consistent across all of the
services and that there is transparency.
I hope that we don't have to have another hearing where we
have outside groups coming to us and saying, ``We can't get the
information.'' GAO in a number of circumstances said she
couldn't get the information. We have to be forthcoming to the
American people.
We intend to continue this work. We will have you back to
see how you are doing, in hopes that you are going to be making
great strides in dealing with the antiracism that we now have
to imbue in society generally.
And, with that, we stand adjourned.
[Whereupon, at 2:22 p.m., the subcommittee was adjourned.]
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A P P E N D I X
June 16, 2020
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PREPARED STATEMENTS SUBMITTED FOR THE RECORD
June 16, 2020
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[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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WITNESS RESPONSES TO QUESTIONS ASKED DURING
THE HEARING
June 16, 2020
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RESPONSES TO QUESTIONS SUBMITTED BY MS. SPEIER
General Pede. After the publication of the Protect Our Defenders
(POD) report in May 2017, the Under Secretary of Defense for Personnel
and Readiness (USD(P&R)) met with the Services to direct a review of
the POD report and directed the Services to provide race and ethnicity
data to USD(P&R) to attempt to replicate the POD analysis. The Services
complied and immediately identified that POD had not requested, nor
included in their report, the investigative data that preceded the
courts-martial data that is critical to understanding where disparities
originate, are alleviated, or are exacerbated. Any study that starts at
the decision to refer a court-martial, including POD's study, is
incomplete and inadequate to understand the issue. As the USD(P&R)
review progressed, the FY18 NDAA House Report 115-200 published on July
7, 2017 directed GAO to assess disparities in the military justice
system. The Services discussed with GAO the need for a more
comprehensive data collection that included personnel, law enforcement
and judicial data that allowed for a multi-variate analysis and began
cooperating fully with GAO to obtain a more accurate picture of our
system. GAO is best positioned to provide neutral, independent, expert
analysis. Importantly, the GAO study identified that the disparity for
Black service members did begin earlier in the process, at the
investigative or accusatory stage, and that the disparity was
alleviated during the court-martial process, providing the Services
with a better understanding of the issue to inform ongoing efforts for
further study. [See page 29.]
Admiral Hannink. This FOIA request, submitted in March 2016 by
Protect Our Defenders, requested information pertaining to the race and
rank of personnel who went to court-martial or received non-judicial
punishment (NJP) in the preceding ten years. The Navy's court-martial
tracking system, which manages data for all courts-martial tried by
Navy Region Legal Service Office Trial Departments, did not include
service members' race until October 1, 2014. Therefore, in response to
the request, the Navy provided a spreadsheet of race and rank data for
courts-martial tried from October 1, 2014 to April 19, 2016.
Additionally, during the requested period, Navy summary courts-martial
(SCM) and NJPs were tracked using a Quarterly Criminal Activity,
Disciplinary Infractions, and Courts-Martial Report (QCAR). From 2006
to 2016, the QCAR tracked only the number of SCM and NJPs with no
additional details. Since then, the Secretary of the Navy has directed
collection of additional demographic data for all SCM conducted on or
after June 17, 2020 and NJPs imposed on or after October 1, 2020.
[See page 29.]
______
RESPONSES TO QUESTIONS SUBMITTED BY MR. CISNEROS
General Pede. The Army maintains demographic data on courts-
martial, including sentencing. Utilizing the available data, the GAO
report found that Black, Hispanic, and male Servicemembers were more
likely than White or female members to be the subjects of
investigations recorded in the databases used by military criminal
investigative organizations and that they were also more likely to be
tried by courts-martial. While the disparities identified by the GAO
carried over into the decision by a commander to refer a case to court-
martial, race was not a factor in predicting conviction or severity of
sentence. Per the recommendations in the GAO report, the Army is
working to improve data collection to more fully understand the
disparities that were identified. To accomplish these efforts, the
Secretary of the Army directed a holistic review and assessment of our
military justice system in relation to these issues. One subset of this
holistic review involves examining our Special and General Court-
Martial decisions and results. We will provide our answers and
recommendations to the Secretary of the Army no later than 1 February
2021. [See page 36.]
General Pede. While the Army collects demographic data on Soldiers
receiving non-judicial punishment, it does not track this data by
individual commanders and does not use non-judicial punishment data as
a metric to evaluate the fairness of individual commanders. While we
acknowledge that both explicit and implicit bias can exist in command
punishment decisions, the circumstances of every unit and command
discipline decision are unique and cannot be simply extrapolated into
an assessment of individual commanding officer fairness. To better
assess bias in commander decisions, the Army has numerous avenues for
those who experience disparity in treatment or perceive disparity to
make a complaint against a commanding officer. These complaints are
elevated to higher command channels for evaluation and action. The
Secretary of the Army has directed a holistic review and assessment of
our military justice system. As part of this assessment, we will
evaluate a number of commanding officer decision points in order to
identify any disparity in cases where a commander has significant
discretion. Also, as a part of this holistic review, the Army G-1 will
examine the racial and ethnic breakdown of the Army's commanders at all
levels. [See page 37.]
Admiral Hannink. The Navy is committed to identifying racial
disparities in the military justice system, including any disparities
in approved sentences. The May 2019 Government Accountability Office
(GAO) report titled ``DOD and the Coast Guard Need to Improve Their
Capabilities to Assess Racial and Gender Disparities'' analyzed courts-
martial sentencing data across all services. For the Navy, the GAO
found that Black service members were approximately half as likely as
White service members to receive a discharge or dismissal. In addition,
the GAO could not identify a statistically significant difference
between Hispanic and White service members in sentencing data at
general or special courts-martial in the Navy. In accordance with
Section 540I of the FY20 NDAA, the Navy began collecting race,
ethnicity, and gender information of the accused and victims for all
courts-martial conducted on and after 17 June 2020. With the continuous
collection of courts-martial data, the Navy will be equipped to
evaluate whether racial, ethnic, or gender disparities exist (including
disparities in sentencing) and to take appropriate action if warranted.
[See page 36.]
Admiral Hannink. The Navy has not previously collected
comprehensive race and ethnicity data for nonjudicial punishment cases
conducted by Commanding Officers. The Navy is in the process of
evaluating the best way to collect and utilize race and ethnicity data
related to nonjudicial punishment. [See page 37.]
General Rockwell. Since 1974, the Air Force has collected and
compared data for sentencing for similar offenses. The recent GAO
Report on racial disparities provided an independent analysis of our
data. The GAO Report determined White servicemembers in the Air Force
are more likely to be convicted, whereas Black servicemembers in the
Air Force are slightly less likely to be convicted, but the GAO found
the disparities were not statistically significant. Not identifying any
statistically significant findings means the GAO could not conclude
whether there was an association between race and the likelihood of an
outcome. The GAO also measured whether race was a factor in whether a
servicemember received a more severe punishment. In doing so, they
considered a sentence as severe if it included a dismissal or
discharge, or confinement for two or more years. The GAO found Black
servicemembers are slightly less likely to receive a more severe
punishment compared to their share of the convicted service population
in the Army, Navy and Air Force, but found no statistically significant
differences. To address potential disparities in sentencing, or any
barrier to the goal of ensuring a fair and impartial military justice
system, Commanders and Judge Advocates candidly review all cases (NJPs,
courts, discharges, trends, responses, etc.), at least quarterly, in
open and transparent status of discipline meetings. Each case is
independently reviewed for legal sufficiency at multiple levels of
command, from installation to MAJCOM. These statistics are also
reviewed periodically at the headquarters level. Airmen accused of
committing a crime are entitled to, and receive, independent and
zealous representation by defense counsel. Approximately 97% of Airmen
are represented in NJP proceedings and in trial by courts-martial.
Engaged and involved defense counsel aggressively raise any issues that
have adversely affected their clients, to include racial or other
discrimination, if discovered and supported by evidence. [See page
36.]
General Rockwell. Yes. The Air Force collects demographic data on
all non-judicial punishment actions, but does not collect the
demographic data in such a way that allows for the analysis of
individual Commanding Officers who impose non-judicial punishment
actions. Although the demographic information we collect is not
collected with the specific intent to measure the fairness of a
particular Commanding Officer, the information shared at the Status of
Discipline Meetings presents the opportunity for supervisory and peer
review. Typically, each Commanding Officer briefs the underlying facts
and demographic data of each non-judicial punishment action they
imposed during the relevant time period. We are examining whether
tracking the demographics of those who administer and receive
administrative disciplinary actions will provide additional insight
into whether corrective administrative actions are issued in a fair and
equitable manner. [See page 37.]
General Lecce. The Marine Corps does not have any independently-
collected data or analyses regarding racial disparities in sentencing
for similar offenses. The Government Accountability Office's (GAO) May
2019 Report included a multivariable regression analysis of the
likelihood, based upon race, of receiving a sentence of either a
dismissal or a discharge (which the GAO regarded as the most severe
punishment outcome) at a Special or General Court-Martial. That
analysis (Table 35 in the GAO report) did not indicate a statistical
significance for receiving either a dismissal or a discharge between
the following categories of Marines: Black, Hispanic, Other, Unknown
race, and White. However, the GAO Report did not analyze other aspects
of sentencing such as length of confinement, forfeitures, or fines. The
Marine Corps is committed to gathering data which will enable the
identification of demographic disparities in the military justice
system, to include disparities in sentencing. As required by Section
540I(b)(1) of the National Defense Authorization Act for Fiscal Year
2020, the Marine Corps is now collecting and maintaining race,
ethnicity, and gender data within its case management system for all
general and special courts-martial completed on or after 17 June 2020.
This data will enable the Marine Corps to conduct future analyses.
Additionally, the Marine Corps is working with the Defense Advisory
Committee on Investigation, Prosecution, and Defense of Sexual Assault
in the Armed Forces, which is currently conducting an evaluation of
racial, ethnic, and gender disparities in sexual assault cases. [See
page 36.]
General Lecce. The Marine Corps does retain demographic data on
service members who receive non-judicial punishment. However, the
Marine Corps does not have a database that collates non-judicial
punishment data by commanding officer. As such, non-judicial punishment
data is not being used to determine whether specific commanding
officers impose non-judicial punishment in a disparate manner across
different demographics. Despite the inability to analyze non-judicial
punishment data by commanding officer, the Marine Corps regularly
utilizes anonymous command climate surveys as a means to identify
commanding officers who may be conducting command functions, to include
non-judicial punishment, in a disparate manner. [See page 37.]