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Hagel reviewing appeal to change UCMJ's Article 60

Mar. 31, 2013 - 09:50AM   |  
Defense Secretary Chuck Hagel will look into whether Article 60 of the Uniform Code of Military Justice that deals with clemency will be changed after an Air Force general dismissed charges against a lieutenant colonel convicted of sexual assault.
Defense Secretary Chuck Hagel will look into whether Article 60 of the Uniform Code of Military Justice that deals with clemency will be changed after an Air Force general dismissed charges against a lieutenant colonel convicted of sexual assault. (Carolyn Kaster / The Associated Press)
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Third Air Force commander Lt. Gen. Craig Franklin's Feb. 26 decision to overturn a sexual assault conviction at Aviano Air Base, Italy, incited furor among lawmakers and victim advocates — and have some calling for a change in the Uniform Code of Military Justice.

Franklin was exercising an authority granted to him in Article 60 of the UCMJ, and his decision is final. But it came at a time when the military is already under fire for how it handles sexual assault. It also coincided with an ongoing sexual misconduct scandal at Joint Base San Antonio-Lackland, where allegations have surfaced against more than 30 military training instructors.

In an answer to lawmakers, Defense Secretary Chuck Hagel said the case raised “a significant question” over whether such power is necessary, given today's “robust appellate process.” He has directed DoD acting general counsel Robert Taylor to review Article 60.

Here are five things you need to know about Article 60:

• It's the first avenue of appeal. After a court-martial conviction, a military member can ask the convening authority to reconsider part or all of the findings. The convening authority — the commander who first decided to pursue charges — may uphold or set aside the verdict, find the convicted guilty of a lesser included offense, reduce the sentence or order a new trial. The next avenue: the U.S. Court of Appeals for the Armed Services.

• It dates to 1775. The authority was first granted to commanders in this country by the Continental Congress, the governing body during the American Revolution. It was adopted as part of the Uniform Code of Military Justice in 1950. In 1775, there was no other way for service members to appeal a court-martial conviction.

• Many allies do it differently. The U.S. military justice system was actually based on the British system. But in 1996, the United Kingdom removed what the European Court of Human Rights ruled was too much commander influence in courts-martial. New Zealand, Canada and Israel have also made similar changes.

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• Top JAGs say authority is still vital. The Air Force's leading legal authority, Lt. Gen. Richard Harding, as well as top judge advocates general for the Army, Marines, Navy and Coast Guard, told the Senate Armed Services Committee on March 13 that a commander's power to uphold or overturn a conviction is essential to military order. “A convening authority's ability to exercise some accountability on every aspect of an [airman's] … behavior is incredibly important, creating a responsive, disciplined force,” Harding said.

• Bills introduced to change Article 60. As a result of the Aviano decision, Reps. Jackie Speier, D-Calif., Bruce Braley, D-Iowa, and Patrick Meehan, R-Pa., introduced legislation that would eliminate a commander's authority to set aside a verdict, to reduce a sentence or to order a new hearing. Sen. Claire McCaskill, D-Mo., is putting forward a bill that also would prevent commanders from reversing guilty verdicts, and would require “written justification for any decision commuting or lessening a sentence.”

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