Due process debate follows National Guard court-martial bill as it passes Indiana House

Representatives in the Indiana House voted 74-24 to pass a bill Monday that would make it easier to court-martial and punish National Guard troops.

Debate over whether part of the bill would violate servicemembers’ due process rights has divided lawmakers and military advocacy organizations. The majority of Democrats voted against the bill, though eight voted for it. Three Republicans broke ranks and voted “nay.”

“Government inefficiency should not be an excuse for overreaching,” said Rep. Renee Pack (D-Indianapolis). “Let's fix the system and not reject the guardsmans’ right to due process under the law.”

General court-martials are a primary venue for hearings on high-level offenses, like sexual assault, allegedly committed by enlisted members of the National Guard or other military branches.

House Bill 1076 would extend the power to convene a court-martial to Indiana’s adjutant general, the Guard's highest-ranking official. Currently, only the governor has that power. The bill’s supporters say this change would make it easier to address issues with Guard troops that the governor may not have time for.

Many opposing this bill agree with that part of it. Lisa Wilken is a U.S. Air Force veteran and vice president of the Indiana Veterans Support Council board

“The adjutant general should have that convening authority,” Wilken said. “The portion that removes the right of our guardsmen and women in Indiana to demand a court-martial is troubling.”

The bill would take away the ability for enlisted National Guard to request a court-martial instead of taking “non-judicial” or “Article 15” punishments for lesser offenses. Proponents have argued this change would protect resources and order within the Guard.

The Indiana Chapter of the American Legion is among those opposing this bill because of that provision. The Legion parted ways with the “The Big Four,” a consortium of military advocacy organizations that includes the National Guard Association of Indiana, because the Legion was not “given the opportunity to vote on [its] position” before a representative of the consortium expressed support for HB 1076 in committee.

“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 Tim Baldwin, National Guard colonel and staff judge advocate, in committee testimony on the bill. “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.”

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

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It’s not clear how often the Guard is seeing cases of a service member asking for a court-martial when faced with non-judicial punishment. The Indiana Guard headquarters did not respond to a request for that information. The bill’s author, Rep. Chris Jeter (R-Indianapolis), said he didn’t have an exact number but knows “it's few, it's fairly small.”

“So if it rarely happens, why would we look to take that right away?” Wilken said.

If the adjutant general is given the ability to convene, Wilken said she believes troops won’t be as able to “game” the system because convening a court-martial will be much easier. And the guard should be willing to spend the money playing out these cases, she said, especially if they happen so rarely and often result in separations.

Jeter argues the Article 15 administrative system is already “chock full of due process.”

“You have the right to consult a lawyer, have witnesses, have someone in your unit speak for you, appeal the judgment, a lot more, I think, than any other employer probably would give,” Jeter said. “The service members in the military are given more due process at more levels than any system on the planet. And that's something we should all be very proud of.”

Jeter and other proponents also 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.

“Reduction in rank or loss of pay, and a reduction in rank equals a loss of pay, is very detrimental to the troops and their family,” said Wilken.

While the Article 15 system allows someone to defend themselves prior to receiving punishment, that defense is often held before the commander that ordered the punishment to begin with. Wilken argues that “gives those commanders unfettered ability to give out administrative punishment – that can be appealed, but that's after the fact.”

“And so, having the ability to basically say ‘I don't accept your non-judicial punishment, prove it’ is also a deterrent to make sure that commanders are following the regulations and the rules,” she said. “And in a perfect world. There would be no need for the ability for the troop to demand a court-martial. But we don't live in a perfect world.”

HB 1076 now heads to the Senate, where a similar version of the bill already exists and is set for a hearing in committee Tuesday.

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

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