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Defense secretary orders review of UCMJ, AF courts-martial outcome
Posted 3/13/2013
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by Master Sgt. Jess D. Harvey
Air Force Public Affairs
3/13/2013 - WASHINGTON (AFNS) -- Defense officials announced March 12 that Defense Secretary Chuck Hagel has directed two separate reviews to ensure that the U.S. military justice system is appropriately protecting victims of sexual assault as well as dispensing justice to the accused, said Pentagon Press Secretary George Little March 13 here.
This stems from a case against Lt. Col. James Wilkerson, who was found guilty last year of sexual assault by a panel of military officers at Aviano Air Base, Italy.
Lt. Gen. Craig Franklin, the 3rd Air Force commander, exercised his authority as a convening authority under Article 60 of the Uniform Code of Military Justice, reviewed the case over a three-week period, and dismissed the charges against Wilkerson. The general concluded the evidence presented at trial did not amount to proof beyond a reasonable doubt, and he declined to approve the conviction.
Dismissing charges like this is rare, officials said, but not unheardof. Article 60 states that a convening authority may, in his sole discretion, set aside a finding of guilty and dismiss any charge or specification.
As a function of military command, since the Revolutionary War, military court-martial convening authorities have possessed the authority to disapprove court-martial findings.
"The secretary has directed the secretary of the Air Force, in coordination with the department's general counsel, to immediately review this case, to assess whether all aspects of the UCMJ were correctly applied and to make recommendations on how the convening authority's decision in the case could be made more transparent," said Little, who is also the Assistant to the Defense Secretary for Public Affairs. A report on this is due by March 20.
The secretary of Defense directed the general counsel to consult with the secretaries of the Army, Navy and Air Force and to provide an assessment of whether changes should be considered in Article 60 or in the services' implementation of Article 60.
This assessment, along with any changes that should be considered, is due by March 27.
Under the UCMJ, the convening authority oversees the fair administration of military justice throughout every stage of the court-martial process, similar to that of an impartial judicial officer.
During the post-trial review of a court-martial, the convening authority continues his impartial position and the accused has a right to an individualized and careful review of the findings and sentence.
The convening authority is required to review the record of the trial proceedings, including a verbatim transcript( and post-trial submissions presented by the accused in matters of extenuation and mitigation.
After careful review, the convening authority has the power to approve or disapprove the findings and also to set aside or modify the findings and the sentence.
"Secretary Hagel is determined to make sure the military legal system works effectively," Little said. "If the reviews he has called for find that, in this case, it did not work, then he is committed to making any and all necessary changes."
"(Hagel) has made it clear, in his earliest meetings and in no uncertain terms to the Department of Defense's senior leadership, that eliminating sexual assault from the military is one of his top priorities," Little said. "He believes that sexual assault is a serious crime that has no place in this department, and he will not tolerate it. He also believes that any member of the military that is convicted of sexual assault, no matter the individual's rank or position, must be held appropriately accountable."
Wilkerson was removed from the colonel's promotion list by the secretary of the Air Force Jan. 14, and his next assignment is undetermined at this point. Even though charges, along with the courts-martial's finding of guilt and ensuing sentence, were dismissed, reinstatement of an individual's name to the promotion list is not automatic.
Following procedures detailed in AFI 36-2603, "Air Force Correction of Military Records," any individual who has been removed from a promotion list may submit an application to the Air Force Board for Correction of Military Records.
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