Bill to make court-martialing Indiana National Guard easier advances, despite 'due process' concerns

There were two sexual assault cases in the Indiana National Guard last year which were not able to be court-martialed.
*Lauren Chapman/IPB News*

Indiana National Guard leaders told House lawmakers current state law can make it hard to hold troops fully accountable for serious offenses, like sexual assault. House Bill 1076 would make it easier to dole out discipline and hold “general court-martials,” which are a primary setting for military prosecutions. That bill passed a House committee Wednesday.

Current state law only allows the governor to convene a general court-martial. HB 1076 would extend that power to the adjutant general, the governor-appointed senior military official for the state.

“You could imagine how having the governor as the only convening authority is difficult from an efficiency perspective,” said Rep. Chris Jeter (R-Indianapolis), the bill’s author and a former-Navy Judge Advocate General (JAG). “I guarantee you the adjutant general will do it much faster than the governor even sees it.”

In opening remarks to the House Veterans Affairs and Public Safety Committee on Wednesday, Jeter pointed out that many states surrounding Indiana, like Michigan and Kentucky, have made similar changes in recent decades. National Guard Colonel and Staff Judge Advocate Tim Baldwin joined other guard leaders in testifying in support of the bill.

“Sexual assault is really what we're trying to get after here,” Baldwin said to lawmakers. “As currently situated, we cannot do a general court martial for a sexual assault committed by a soldier without the governor convening a general court-martial. If [the adjutant general] is allowed to convene a general court-martial, then we can address these sexual assaults right now.”

Baldwin said there were two sexual assault cases in the Indiana National Gaurd last year.

“We were not able to go to general court-martial, which would have allowed us to get a dishonorable discharge,” he said. “We did an administrative separation board, they were separated out of the army with the 'other than honorable characterization of service.' It's not enough.”

The type of discharge can affect which benefits a veteran receives and carry other ramifications. People with dishonorable discharges can’t get any veteran benefits, carry firearms or get federal employment. General court-martials are the only way troops can get dishonorably discharged and can also result in confinement for up to life without parole.

The guard can refer accused service members for civilian prosecution, Baldwin said, even if it doesn’t punitively discharge them.

“Sometimes for whatever reason, the state would like not to prosecute a certain case,” he said. “Some jurisdictions are hesitant because they consider it military matters, and they may not get charged. And in both of those cases last year, they were not charged in state court, but we separated them based on the sexual assault.”

HB 1076 would also take away the right for guardsmen to request a court martial instead of taking “non-judicial” or “Article 15” punishments for lesser offenses like returning late to post. That was a point of contention in the committee meeting Wednesday.

“I received an Article 15 for being late getting back to my post. And there were extenuating circumstances on that. Don't think I really deserved it,” said Rep. Chuck Moseley (D-Portage). “I feel a little uncomfortable with the possibility of not providing that individual with all the due process, options and avenues that might be available to him.”

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Jim Bauerle, Military/Veterans Coalition of Indiana vice-chairman, expressed similar concerns in his testimony.

“In America, you're innocent until proven guilty,” Bauerle said. “And what happens with this action, is you're guilty until proven innocent. And I think that's totally wrong as a citizen, let alone a soldier.”

The bill’s supporters, including the National Guard Association of Indiana, point out there already is a due process system for Article 15 cases. It allows accused service members to appeal decisions and hire outside counsel, though one is not guaranteed to be provided for them.

“As a practical matter, these soldiers know if they refuse an article 15 and demand a court martial that we aren’t going to give it a court-martial, we're not going to spend the time and the taxpayer money to conduct a court martial for someone who was late coming back to post,” said Colonel Baldwin. “They either get almost nothing, a memorandum of reprimand, or we go to separation procedures and they’re out of the National Guard, which we don't want.

And proponents say the bill would make non-judicial punishments fairer by no longer allowing them to involve confinement, leaving only punishments like reduction of rank and extra duties.

After about an hour of testimony and debate, Rep. Moseley and his fellow committee members ultimately voted unanimously to pass HB 1076.

“My primary concern has been whether or not we're going to deny rights and due process to a soldier,” Moseley said before casting his “yes” vote. “However, having said that, being educated by these [National Guard leaders] combined with the fact that I do trust Rep. Jeter, I'm going to vote ‘yes.’ And keep looking at this and learning about this, with the possibility that [it] could change when this bill comes to the floor.”

Contact reporter Adam at arayes@wvpe.org or follow him on Twitter at @arayesIPB.