Military Justice: DOD and the Coast Guard Need to Improve Their Capabilities to Assess Racial Disparities
Released: 2020-06-16T00:00:00

Letter

Background

In creating the military justice system, Congress established three types of military courts, called the summary, special, and general courts-martial, to adjudicate UCMJ violations. Each of these types of military courts respectively is intended to deal with progressively more serious offenses, and each court-martial type may adjudicate more severe maximum punishments as prescribed under the UCMJ. In addition, an accused servicemember can receive nonjudicial punishment under Article 15 of the UCMJ, by which a commander can punish a servicemember without going through the court-martial process.

There are several steps in the discipline of a servicemember who allegedly commits a crime under the UCMJ, which are summarized in figure 1 below.

The military justice process begins once an offense is alleged and an initial report is made, typically to law enforcement, an investigative entity, or the suspect’s chain of command. The commanding officer, law enforcement, or a military criminal investigative organization (MCIO) will conduct an inquiry or investigation into the accusation and gather all reasonably available evidence. Investigations are recorded in MCIO databases when a servicemember is the subject of a criminal allegation; for the purposes of our report, we say the servicemember had a “recorded investigation” to describe these cases. Following an investigation, the first step toward initiation of a court-martial is when the accused is presented with a list of charges signed by the accuser under oath, which is called preferral of charges. After charges are preferred, the charges are forwarded to an officer with sufficient legal authority to convene a court-martial, also known as the “convening authority.” The convening authority in receipt of preferred charges may, among other actions, refer the case to its own court or forward the case to a superior commander for disposition. Once referred to a general or special court- martial, an accused servicemember may be tried by a military judge alone or by a military judge with a military jury. In summary courts-martial, a single commissioned officer who is not a military judge adjudicates minor offenses and a sentence. Convictions at the general and special court- martial level are subject to a post-trial process and may be appealed to higher courts in cases where the sentence reaches a certain threshold.

The military justice system, like the civilian criminal justice system, provides avenues for accused servicemembers to raise allegations of discrimination, improprieties in investigations, improprieties in disposition, and improprieties in the selection of the military jury at the court-martial proceeding, before a judge and on appellate review.

The Military Services Do Not Collect, Maintain, and Report Consistent Information about Race and Ethnicity, Limiting the Ability to Assess Data to Identify Any Disparities

The Military Services Do Not Collect and Maintain Consistent Data for Race and Ethnicity

The military services do not collect and maintain consistent information regarding race and ethnicity in their investigations, military justice, and personnel databases. Specifically, the number of potential responses for race and ethnicity within the 15 databases across the military services ranges from 5 to 32 options for race and 2 to 25 options for ethnicity, which can complicate cross-service assessments. For example, the Army’s personnel database maintains 6 options for race and 23 options for ethnicity, whereas the Coast Guard’s personnel database maintains 7 options for race and 3 for ethnicity. Table 1 below summarizes how the databases used by the military services vary in how the servicemember’s race is entered and the number of potential race options.

Table 2 shows that the military services’ databases also vary in how information about servicemembers’ ethnicity is entered into the databases and the number of potential ethnicity options that are collected.

Although the data collected and maintained was not consistent within and across the military services, each of the military services’ databases maintained race and ethnicity data for at least 99 percent of the servicemembers, with the exception of the Coast Guard. The Coast Guard did not track information about race or ethnicity in its military justice database, Law Manager. Coast Guard officials stated that this is because Law Manager was designed to determine the status of court- martial cases, and captures attributes that are needed to generate relevant UCMJ documents, such as court pleadings. Demographic information such as race and ethnicity is not included in these official documents, so this information is not input into Law Manager. Further, four of the databases we reviewed—including both of the Army’s military justice databases, and the Navy and the Marine Corps’ military justice databases—collect information on race and ethnicity in a combined data field as shown in table 2 above, whereas the other databases collect and maintain race and ethnicity information in two separate fields. These inconsistencies limit the military services’ ability to collectively or comparatively assess these demographic data to identify any racial or ethnic disparities in the military justice system within and across the services.

Recommendations to collect and maintain race and ethnicity information in investigations and personnel databases. To address these inconsistencies, in our May 2019 report, we made four separate recommendations to each of the military departments and to the Secretary of Homeland Security for the Coast Guard. We recommended that these entities develop the capability to present servicemembers’ race and ethnicity data in their investigations and personnel databases using the same categories of race and ethnicity established in the uniform standards for the military justice databases that were issued in December 2018. As part of these uniform standards, the military services were directed to collect data related to race and ethnicity in their military justice databases, to collect race and ethnicity data in separate data fields, and to standardize the reporting of the data into categories identified in the standards. However, DOD applied these December 2018 standards only to the military justice databases and not to the investigations and personnel databases. DOD officials stated that the investigations and personnel databases do not fall under the charter of the DOD General Counsel, which issued the standards for the military justice databases.

DOD and the Department of Homeland Security (DHS) concurred with these four recommendations. As of October 2019, officials from each of the military departments said that they were working to implement the uniform standards for race and ethnicity and the ability to aggregate the data, and they expected to implement these categories in December 2020. Similarly, as of May 2019, the Coast Guard expected to implement such modifications by September 2020.

The Military Services Have Not Consistently Reported Data That Provides Visibility about Racial Disparities

Although some military services report demographic information about the subjects of military justice actions internally, the military services have not externally reported data that provides visibility into, or would enable an analysis of, the extent of racial or ethnic disparities in the military justice system. Officials from all of the military services told us that they compile internal quarterly or monthly staff judge advocate reports, which include the total number of each type of court-martial handled by their legal offices and of nonjudicial punishments. According to military service officials, the Air Force and the Army reports include demographic information about servicemembers involved in these cases, such as the total number of each type of case broken out by the subject’s race and ethnicity. However, the Navy, Marine Corps, and Coast Guard reports do not include this demographic information, and there was no requirement to do so at the time of our May 2019 report.

Regarding external reporting, the UCMJ directs the Court of Appeals for the Armed Forces, the Judge Advocates General, and the Staff Judge Advocate to the Commandant of the Marine Corps to submit annual reports on the military justice system to the Congressional Armed Services Committees, the Secretary of Defense, the secretaries of the military departments, and the Secretary of Homeland Security. These reports are to include information on the number and status of pending cases handled in the preceding fiscal year, among other information. The annual reports include the total number of cases each military service handled for each type of court-martial and for nonjudicial punishments. However, prior to our review, these annual reports did not include demographic information about servicemembers who experienced a military justice action, such as breakdowns by race, because the reporting requirement did not direct the military services to include such information.

Recommendation to require military services to include data about race and ethnicity in annual reports about military justice actions. In our May 2019 report, we recommended that the Joint Service Committee on Military Justice, which is responsible for reviewing the UCMJ annually, consider an amendment to the UCMJ’s annual military justice reporting requirements to require the military services to include demographic information, including race and ethnicity, for all types of courts-martial. DOD concurred with this recommendation.

According to a memorandum from the Joint Service Committee on Military Justice, in September 2019 the committee proposed an action item as part of its annual review. Specifically, the committee was considering an amendment to the UCMJ’s annual military justice reporting requirements to require the military services to include demographic information, including race and ethnicity, for all types of courts-martial. However, in December 2019, the National Defense Authorization Act for Fiscal Year 2020 included a provision directing the Secretary of Defense to include data on race, ethnicity, and gender in the annual military justice reports. We believe that this statutory change meets the intent of our recommendation. By requiring the military services to report this information, servicemembers and the public will have greater visibility into potential disparities, which will help build confidence that DOD is committed to a military justice system that is fair and just.

DOD Has Not Identified When Disparities Should Be Examined Further

DOD has not issued guidance that establishes criteria to specify when any data indicating possible racial or ethnic disparities in the investigations, trials, or outcomes of cases in the military justice system should be further reviewed, and to describe what steps should be taken to conduct such a review if it were needed. While equal employment opportunity enforcement is a very different context than the military justice system, other federal agencies have developed such criteria in the equal employment opportunity context that can indicate when disparities should be examined further. For example, the Department of Justice, the Department of Labor, the Equal Employment Opportunity Commission, and the Office of Personnel Management use a “four-fifths” test to determine when differences between subgroups in the selection rates for hiring, promotion, or other employment decisions are significant. These criteria, though inexact, provide an example of the type of criteria that DOD could consider using as a basis for determining when disparities among racial groups in the military justice process could require further review or analysis.

Recommendation to issue guidance to establish criteria that determines when racial and ethnic disparities should be reviewed. In our May 2019 report, we recommended that the Secretary of Defense, in collaboration with the Secretaries of the military departments and the Secretary of Homeland Security, issue guidance that establishes criteria to specify when data indicating possible racial, ethnic, or gender disparities in the military justice process should be further reviewed, and that describes the steps that should be taken to conduct such a review. In commenting on a draft of our report, DOD partially concurred with this recommendation, agreeing with the content, but requesting that we modify the recommendation to direct it to more appropriate entities. That change was made before our report was issued.

In October 2019, DOD officials said that the department was exploring the feasibility of conducting relevant research to inform implementation of this recommendation. At that time, they estimated that this research might be concluded in March 2021. In December 2019, the National Defense Authorization Act for Fiscal Year 2020 included a provision directing the Secretary of Defense to issue guidance consistent with our recommendation. DOD was directed to commence or carry out these activities by June 2020. We believe that issuing guidance that establishes criteria for determining when data indicating possible racial disparities in the investigations, trials, or outcomes of cases in the military justice system should be further examined, and describes the steps that should be taken to conduct such further examination, would better position DOD and the services to monitor the military justice system to help ensure that it is fair and just, a key principle of the UCMJ.

Racial Disparities Exist in Military Justice Investigations, Disciplinary Actions, and Case Outcomes

Racial disparities exist in investigations, disciplinary actions, and punishment of servicemembers in the military justice system. Our analysis of available data from fiscal years 2013 through 2017, which controlled for attributes such as race, gender, rank, education, and years of service, found racial disparities were more likely in actions that first brought servicemembers into the military justice system, but we identified fewer statistically significant racial disparities in case outcomes— convictions and punishment severity.

Black and Hispanic Servicemembers Were More Likely to Be Subjects of Recorded Investigations and Tried in General and Special Courts-Martial

Black and Hispanic servicemembers were more likely than White servicemembers to be the subjects of recorded investigations in all of the military services, and were more likely to be tried in general and special courts-martial in the Army, the Navy, the Marine Corps, and the Air Force, as shown in figure 2 below. We could not analyze Coast Guard cases due to the small number of general and special courts-martial adjudicated in the Coast Guard from fiscal years 2013 through 2017.

When separating general and special court-martial cases into those that either were or were not preceded by an investigation recorded in an MCIO database, we found fewer statistically significant racial disparities in most of the military services in general and special courts-martial that were preceded by a recorded investigation. However, as shown in figure 3 below, statistically significant racial disparities were also present in general and special courts-martial that did not follow a recorded investigation in all military services included in this analysis, which would include cases where the investigation was performed by the servicemember’s command.

Specifically, as shown in figure 3 above, we found that: General and special courts-martial following a recorded investigation. Black, Hispanic, and servicemembers in the Other race category in the Army, and Hispanic servicemembers in the Marine Corps were more likely than White servicemembers to be tried in general and special courts-martial following a recorded investigation, after controlling for other attributes. We generally found fewer statistically significant differences compared to the results of our analyses for all special and general courts martial.

General and special courts-martial without a recorded investigation. Black servicemembers in all of the military services were more likely than White servicemembers to be tried in general and special courts-martial without a recorded investigation after controlling for other attributes. These differences were consistent with the differences we identified for general and special courts-martial overall, as shown in figure 2 above. Hispanic servicemembers in the Army were more likely than White servicemembers to be tried in general and special courts-martial without a recorded investigation, but we found no statistically significant differences in the likelihood of Hispanic servicemembers to be tried in general and special courts-martial without a recorded investigation in the Marine Corps, the Navy, or the Air Force.

Black Servicemembers Were More Likely to Be Subject to Summary Courts-Martial and Nonjudicial Punishment in the Air Force and Marine Corps, and the Other Services Lack Data

Black servicemembers were more likely than White servicemembers to be tried in summary courts-martial and to be subjects of nonjudicial punishment in the Air Force and the Marine Corps, as shown in figure 4. The Army and the Navy did not maintain complete summary court-martial or nonjudicial punishment data, and the Coast Guard had too few summary courts-martial for us to analyze, and did not maintain complete nonjudicial punishment data.

We could not determine whether disparities existed among servicemembers tried in summary courts-martial or subject to nonjudicial punishments in the Army and the Navy because the Army and the Navy did not collect complete summary courts-martial or nonjudicial punishment data in their investigations, military justice, or personnel databases. Specifically, as part of our data reliability checks, we identified the total number of summary courts-martial that the Army and the Navy reported in the Court of Appeals for the Armed Forces annual reports for fiscal years 2013 through 2017, and compared these totals to the number of cases we identified in their military justice databases. While our comparisons are not exact, due to differences in the dates we used to count the number of cases, we found that approximately 60 percent of the Army’s reported summary courts-martial cases and less than 50 percent of the Navy’s reported summary courts-martial cases were included in their military justice databases.

The absence of complete summary court-martial data in the military justice databases of the Army and the Navy limits these services’ visibility into any disparities that may exist among servicemembers involved in these types of military justice proceedings. On December 17, 2018, the General Counsel of the Department of Defense issued the uniform standards and criteria required by article 140a of the Military Justice Act of 2016. As part of these uniform standards, the military services were directed to collect certain information about all cases in their military justice databases, which a DOD official said includes summary court- martial cases. The DOD General Counsel directed that military services are to implement the Secretary’s direction no later than December 23, 2020.

Similarly, we identified the total number of nonjudicial punishments that the Army, the Navy, and the Coast Guard reported in the Court of Appeals for the Armed Forces annual reports for fiscal years 2013 through 2017, and compared these totals to the number of cases we identified in their military justice and personnel databases. As shown in figure 5 below, we found that 65 percent of the Army’s reported nonjudicial punishments, 8 percent of the Navy’s reported nonjudicial punishments, and 82 percent of the Coast Guard’s reported nonjudicial punishments were recorded in their military justice databases.

Recommendation to include benefits and drawbacks of collecting and maintaining complete information for nonjudicial punishment. In our May 2019 report, we made separate recommendations to the Army, the Navy, and the Coast Guard to consider the feasibility, to include the benefits and drawbacks, of collecting and maintaining complete information for all nonjudicial punishment cases in one of the military service’s databases, such as information on the servicemembers’ race, ethnicity, gender, offense, and punishment imposed. DOD and DHS concurred with these recommendations. As of October 2019, Army and Navy officials said that they were developing the capability to collect data on race, ethnicity, gender, offense and punishment imposed for nonjudicial punishments. They expected to complete this action in December 2020. As of May 2019, the Coast Guard stated that it would consider the feasibility of collecting and maintaining complete information for all nonjudicial punishments cases through a military justice and personnel work group. The estimated completion date for this action had not been determined at that time.

Few Statistically Significant Racial Disparities Exist in Likelihood of Conviction or Severity of Punishment, but the Coast Guard Does Not Collect and Maintain Complete Data

We identified fewer statistically significant racial disparities in case outcomes—convictions and punishment severity. Among the servicemembers convicted in general and special courts-martials, we found no statistically significant differences regarding the likelihood of conviction among racial groups in the Army, the Navy, the Marine Corps, and the Air Force, while controlling for other attributes, as shown in figure 6 below.

In the military services that maintained complete punishment data—the Army, the Navy, the Marine Corps, and the Air Force—we found that minority servicemembers were either less likely to receive a more severe punishment in general and special courts-martial compared to White servicemembers, or there were no statistically significant differences in punishments among racial groups. Specifically, as shown in figure 7, Black servicemembers were less likely to receive a more severe punishment in general and special courts-martial compared to White servicemembers in the Navy, but there was no statistically significant difference for Black servicemembers in the Marine Corps, the Army, and the Air Force. Additionally, there were no statistically significant differences for Hispanic servicemembers in the Navy, the Marine Corps, the Army, or the Air Force.

We could not determine disparities in case outcomes—convictions and punishment severity—in the Coast Guard’s general and special courts- martial for fiscal years 2013 through 2017 because the Coast Guard did not collect and maintain complete conviction and punishment data in its military justice database. Specifically, 16 percent of all Coast Guard cases were missing conviction and punishment data. When broken down by court-martial type, 20 percent of general court-martial cases, 15 percent of special court-martial cases, and 4 percent of summary court- martial cases were missing conviction and punishment data. Coast Guard officials acknowledged that incomplete conviction and punishment data entry is a consistent problem. They said that data entry had improved recently. On December 17, 2018, the General Counsel of the Department of Defense issued the uniform standards and criteria required by article 140a of the Military Justice Act of 2016. As part of these uniform standards, the military services were directed to collect information about the findings for each offense charged, and the sentence or punishment imposed. The DOD General Counsel directed that the military services are to implement the Secretary’s direction no later than December 23, 2020.

DOD and the Military Services Have Conducted Some Assessments of Military Justice Disparities, but Have Not Studied the Causes of Disparities

DOD and the military services have taken some steps to study racial disparities in the military justice system over the last several decades, but they have not comprehensively studied the causes of any disparities. We previously reported in 1995 on DOD studies on discrimination and equal opportunity, and found DOD and the military services conducted seven reviews of racial disparities in discipline rates between 1974 and 1993. Since our 1995 report through 2016, DOD and military service assessments of military justice disparities have been limited. Officials in the Office of Diversity, Equity and Inclusion noted DOD has not conducted any department-wide assessments of racial disparities in military justice during this period. The military services’ diversity offices also were not able to identify any service-specific reviews of disparities in military justice.

However, DOD has conducted climate surveys to address servicemembers’ perceptions of bias. In addition, the military services have some initiatives to examine and address disparities in military justice. For example, the Air Force routinely analyzes military justice data using a rates-per-thousand analysis to identify whether certain demographic groups are tried by courts-martial or subject to nonjudicial punishments at higher rates than others. These Air Force analyses found that Black servicemembers were more likely than White servicemembers to be subject to courts-martial and nonjudicial punishments from fiscal years 2013 through 2017, which is consistent with what we found. However, the other services do not routinely conduct such analyses.

Officials from DOD and the military services acknowledged that they do not know the cause of the racial disparities that have been identified in the military justice system. This is because they have not conducted a comprehensive evaluation to identify potential causes of these disparities and make recommendations about any appropriate corrective actions to remediate the cause(s) of the disparities.

Recommendation to identify causes of racial disparities in the military justice system. In our May 2019 report, we recommended that the Secretary of Defense, in collaboration with the Secretaries of the military services and the Secretary of Homeland Security, conduct an evaluation to identify the causes of any disparities in the military justice system, and take steps to address the causes of these disparities as appropriate. DOD partially concurred with this recommendation, agreeing with the content, but requesting that we modify the recommendation to direct it to more appropriate entities. We made that change before the report was issued.

In October 2019, DOD officials said that the department was exploring the feasibility of conducting a research project to delve into the differences in military justice data to inform implementation of this recommendation. At that time, they estimated that this research might be concluded in March 2021. In December 2019, the National Defense Authorization Act for Fiscal Year 2020 included a provision directing the Secretary of Defense to conduct an evaluation consistent with our recommendation. DOD was directed to commence or carry out these activities by June 2020. We believe that conducting a comprehensive analysis into the causes of disparities in the military justice system, would better position DOD and the military services to identify actions to address disparities, and thus help ensure that the military justice system is fair and just, a key principle of the UCMJ.

In conclusion, our analysis of available data identified racial disparities in all of the military services for servicemembers with recorded investigations, and for four of the military services for trials in special and general courts-martial, but these disparities generally were not present in the convictions or punishments of cases. These findings show an association for disparities at particular stages of the military justice process, but are inconclusive regarding other stages for the period covered by our analysis. However, our findings of racial disparities, taken alone, do not establish whether unlawful discrimination has occurred, as that is a legal determination that would involve other corroborating information along with supporting statistics. The absence of complete nonjudicial punishment data in the Army, the Navy, and the Coast Guard limits their visibility into the vast majority of legal punishments imposed on servicemembers under the UCMJ every year. Without such data, these three military services will remain limited in their ability to assess or identify disparities among populations subject to this type of punishment.

Our May 2019 report included several recommendations with specific actions that can be taken to better position DOD and the military services to identify and address disparities, such as (1) developing the capability to present race and ethnicity data from the military services’ personnel and investigations databases using the same categories as the military justice databases; (2) establishing criteria to determine when possible disparities among racial or ethnic groups should be further reviewed, and describing the steps that should be taken in such a review; and, importantly, (3) conducting a comprehensive evaluation of the causes of these disparities and taking steps to address them. To help build confidence that DOD is committed to a military justice system that is fair and just, and for the system of military law to be recognized as fair and just by both members of the armed forces and by the American public, DOD and the military services need to take actions to address these recommendations.

Madam Chairwoman Speier, Ranking Member Kelly, and Members of the Subcommittee, this completes my prepared statement. I would be pleased to respond to any questions that you or other Members of the Subcommittee may have at this time.

GAO Contact and Staff Acknowledgments

If you or your staff have any questions about this testimony, please contact Brenda S. Farrell, Director, Defense Capabilities and Management, who may be reached at (202) 512-3604 or farrellb@gao.gov. In addition, contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement. GAO staff who made key contributions to this testimony are Kimberly C. Seay, Assistant Director; Christopher Allison; Renee S. Brown; Vincent M. Buquicchio; Christopher Gezon; Won (Danny) Lee; Serena C. Lo; Dae B. Park; Samuel J. Portnow; and Clarice Ransom.

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