We’ve commented a number of times about the reduction in court-martial levels in recent years.  While all the services experienced reductions in the combined totals of GCMs and SPCMs from FY 2004 to FY 2009, the rate of reduction was highly disparate across the services.

The downward trend has been most pronounced in the Department of the Navy.  In Fiscal Year 2004, the Marine Corps and Navy combined tried 2,185 general and special courts-martial.  By Fiscal Year 2009, that number had been cut almost in half to 1,112.  But when all branches in the Department of Defense are considered, the drop-off in general and special courts-martial from FY 2004 to FY 2009 was a more modest 33%, from 4,384 to 2,919.  The Department of the Army has not experienced the same drastic reductions as the other services.  The Army tried 1,329 general and special courts-martial in FY 2004 and 1,166 in FY 2009—approximately a 12% reduction.  The Air Force was in the middle, experiencing a 26.4% reduction — from 870 special and general courts-martial in FY 2004 to 641 in FY 2009.  (While the Coast Guard’s numbers aren’t included in the DOD-wide calculation above, since the Coast Guard isn’t in the Department of Defense, it experienced a 21% drop in GCMs and SPCMs from FY 2004 (39) to FY 2009 (31).)

Any speculation as to why the Navy and Marine Corps’ GCM and SPCM drop-off was so much more pronounced than that of the other services and while the Army’s drop-off, though substantial, was so much less than those of the other services?

32 Responses to “The uneven decline in court-martial levels”

  1. I cannot stand it says:

    I hink you have to oban some oher data too account for thr numberdin each service. For example has there been a change in the number of people going to Article 15 indicatng a preference for disposal at a lower level.Has there been a change in the numbers refusing Article 15? Has there been a change in the number of administrative discharges in lieu of court or administrative discharges generally? These factors may not account for all of the declines but during war time there amy be a behavioral change on the part of potental convenng authorities with regard to how much attention they can afford to expend on miljus mattters. Also the contracton of SJAs in the field assigned to commands may leave CAs without a lawyer and it may be easier to take borderline cases to mast. Just some random thoughts.9

  2. Jake says:

    You also need to factor in the total population of the services; Air Force and Navy both experienced a drawdown over that period. Fewer personnel equals fewer court martial worthy offenses and the first to be cut were probably many of the borderline Sailors and Airmen who were more likely to commit violations of the UCMJ.

  3. Anon says:

    It is also the culture of the Navy Jagc. Most Navy jags do minimal times as litigators and then spend a majority of their time doing oplaw and admin. That has been the way to promote for years. Therefore, when a SPCM court martial looms on their horizon, they will do virtually anything to avoid it. They can turn the GCM’s over to a Region commander but NJP/adsep is the de facto response to SPCM’s. There are other factors also, size of force, quality of sailors today vice twenty years ago, operational tempo since 2001, NCIS focus on anything other than crimes by sailors, but a fair portion of the blame is, in my opinion, the fault of the Jagc and its culture.

  4. I cannot stand it says:

    It seems we are all on ther same wavelength. There us a change in culture in the line and JAG communities. Perhaps driven by wartine needs and new priorities, career considertions and the changing characterisrics of a shrinking professuonal force.Certainly there are so many contributing factors and intangible ones at that that the shift in legal prioriies was and will remain difficult to project and predict.

  5. John O'Connor says:

    Increased op tempo makes Marine too busy to get into trouble. The downside from that is that for the 95%+ who wouldn’t get in trouble under any circumstances, they have the family disruption of an increased op tempo.

  6. W says:

    Blaming this on a culture is short-sighted. This is not a fault of inexperienced TCs who would rather “turn over GCMs to a Region Commander for NJP.” First of all, the major decline is in SPCM numbers – not GCMs. Secondly, the TC’s don’t make that call and almost all CO’s recognize that a case that warrants a GCM is a serious one that is easy to justify spending time and capital on.

    But why the precipitous drop in SPCMs? I think the major factor that is being grossly ignored is the difference in cost per each of these lower level courts-martial. Any coherent review of the process must actually take a look at the availability of facilities, court-martial travel and witness costs, and fund sourcing.

    As I understand it, almost every Army and Air Force base has a functional court-room. (Heck, I think Lackland AFB has 3 approved court facilities – each of which requires a waiver from OJAG for use by the USMC or USN). There simply aren’t that many “approved” court-rooms the Navy and USMC, who have significant presences on a wide variety of installations, many without a court-room that is certified for use (take, e.g. – Lackland AFB). That means in many instances the CA must take the entire show on the road at significant cost to both manning and budget.

    Compounding this is the fact that funding for most SPCMs within the DoN comes from the individual SPCMCA, rather than a centralized GCMCA who convenes all courts. There is good reason for this practice, but it still forces SPCMCAs to make hard choices about how much of a hit they will take out of their O&M budgets for that misdemeanor level case. And despite the mantra that “there will always be money for courts and you can ask for more” it cannot be denied that most CO’s would much rather not ask for money for a mast refusal as they beleive it may reflect poorly upon them. This is especially so in todays fiscally austere environment.

    Add into all this with the closure of most Naval brigs, which means the SPCMCA must fund the accused and brig chasers for transport (and, in a non-BCD case with less than 90 days confinement, return) and I think you will find that most CO’s, when faced with forking out tens of thousands of dollars for a low level SPCM, will choose the ADSEP route.

    All of these are facts that are not lost on many DCs, who effectively use the system to drive up costs, all in an effort to gain leverage over a CA.

    I honestly do not think these same factors are in play in the other services. And it has nothing to do with differing cultures of the judge advocate communities.

  7. W says:

    One proposed step in the right direction: “purple” court-facilities.

  8. I cannot stand it says:

    You misundeerstand my point. The dulture change is not the cause but the collective result of all of these underlying changes in attitudes and preferences which taken together produce the change in culture that shows up in part as fewer courts.The points you make are good ones but none is caused by the change of culture as much as it contributres to that change. The change in culture is not a cause but is itself a result of many factors which result has as a sign the decrease in courts.The difference I suppose between a symptom caused by the disease and the sign which reveals the disease.

  9. Anonymous says:

    I largely agree with W. In a time of shrinking budgets, it is unsurprising that a SPCMCA will choose to save his limited resources to train his people rather than blow it on a SPCM. The good order and discipline message sent by a SPCM is most often outweighed by the expediency, cost-savings, and immediate impact of a non-judicial punishment and adsep (e.g. a problem sailor is almost immediately out of the unit with an adsep whereas someone facing SPCM can stick around for many months, if not a year or more).

    In my opinion, this is most often a no-brainer decision for a CA. If SPCMCAs were handed a pot of money independent of their other funds from which they could pull money to convene and pay for SPCMs, you’d definitely see an uptick in SPCMCAs. Like most things, it’s all about the Benjamins.

  10. Anon says:

    I suspect, but do not know for a fact, that much of the decline is a result of a higher percentage of cases going to NJP rather than SPCM. The rule that NJP cannot be refused when one is attached to a vessel has always had a disproportionate impact on the Navy and Marine Corps. I believe the Navy and Marine Corps also use a lower standard of proof for NJP than the other branches, which may make it a more attractive forum to commanders looking for an expedient resolution.

  11. publius says:

    Maybe the Corps isn’t taking everyone who popped on a drug test and/or went UA for a couple of weeks to a SPCM anymore.

  12. Anon says:

    Speaking of what I know about the Marines Corps JAs, it’s a combination of combat deployments and the unprecedented number of battalion/regimental judge advocate and other OpLaw billets. These billets draw young judge advocates away from trial shops across the Marine Corps, significantly increasing the caseload of the remaining trial lawyers. The result is an almost uniform drive by counsel and OICs for disposition of misconduct at lower forums and an overall decrease in the quality of support trial shops provide CAs. Deployments, unfortunately, do not equate to a decrease in misconduct. Not only are deployed Marines not too busy to commit misconduct, units often leave their troubled Marines in the rear, where they continue to commit minor misconduct.

  13. Anon says:

    These ## are for the DON as a whole – what is the distro b/w the USMC and USN? If I recall, the downward trend was far more pronounced in the USN vice the USMC.

  14. FormerTC says:

    Case loads are not up. While I agree MIlJUST is not the prize it once was there are still many JAs out there that want the cases. The simple fact is funding (which has been discussed in detail within these posts) and time. Commanders have been fighting two wars since 2003 and they simply don’t have the time to court-martial a Marine for a simple drug pop, UA, or minor larceny. These SPCM proceedings can take up to a year and that means having someone you don’t trust taking up space on your T/O. Simple fix is NJP with follow-on ADSEP and a new body to compliment your unit. The other factor is that judges/juries are giving NJP type punishment for these offenses, so why waste the time and resources.

  15. John O'Connor says:

    We’re just going to have to agree to disagree about whether increased op tempo decreases court-martial-type misconduct. Compare and contrast the number of UAs and drug pops from a unit that is in the middle of a military operation against the percentages on a unit after it returns to the states. Even if you controlled for the problem children who get left behind (which, in my experience, was limited to Marines actually facing court-martial for their misconduct in garrison, and you’d see that a lot of everyday court-martial offenses aren’t committed while deployed.

  16. Friend says:

    I believe if one viewed the overall number of courts – summary, special and general – one would NOT see a huge drop in overall military justice numbers in the DoN. One could view this as ensuring good order and discipline issues are being resolved at the lowest level as intended. SCM with an admin board waiver is a huge tool being used in multiple Marine locales.

    I’ve heard Col Miller’s old article “Lost Battalion” as a lasting imputus for CA and senior JA attitudes.

    I think many of the comments play in the overall decrease in numbers, none of which is determinative, but I submit each is contributory. GCM levels remain relatively constant if not increasing slightly over the years.

    Also consider – not only time and money – but perhaps confidence level in the overall miljust jungle by CAs may be a contributing factor to increases or decreases.

  17. ksf says:

    Thanks for mentioning that Article; I was unaware of some of the benefits of a BCD Special versus an Administrative Separation.

    As a Trial Counsel, I used to negotiate a deal I called the Supercharge which was a summary court martial with an OTH waiver for a Chapter 14-12c separation in lieu of a BCDSPC where the judge was likely to give a BCD and some jail time. Sounds like Servicemembers can get a new start on life, particularly with the GI Bill, while they await their appellate review and discharge provided they can do the jail time, as opposed to the administrative separation, which would leave them wtih nothing.

  18. Navy SDC says:

    I largely agree with W.

    1) Closure of brigs imposes additional costs and a logistical nightmare on commands. Proposed fix: Purple Brigs run by DoD.
    2) Courtroom security. Guess who has to support this? Mostly the CAs. Again, additional costs and a logistical nightmare. (However, I know courts have been held at AF courtrooms at Lackland and Tinker recently after receiving security waivers).
    3) RLSO structure. The Navy has taken its SJAs away from the line community and put them under the control of the Region SJA, who dictates mil jus policy througout the region despite having not touched mil jus for the last decade.
    4) The disconnect between TSOs and commands has increased with the RLSO. With SJAs competing with TCs for evals, a gap has been created where SJAs think “I’d rather handle this myself.”
    5) TCs are scared to lose. TCs have become so gun-shy when it comes to CMs that they take too long to evaluate the case, want too many “experts” themselves, and sometimes have a losing attitude from the beginning. They push this on the CA, who becomes disillusioned with the process.
    5) NCIS stopped investigating crimes. ATFP has become NCIS’s focus, and its agents could care less about busting a drug ring.
    6) And yes, DCs have become good at using all of the above to their advantage.

  19. MMM says:

    Seeing many, many SCM board waiver deals now when Marines are charged at a SPCM. Many times, the case is referred to a SPCM in the hopes the defense puts in the lower forum PTA. Back when I first came in the Marine Corps, every single spec UA and 112a went to a SPCM. Clients wanted the BCD. Now, many of them have deployed multiple times and don’t want the BCD. Or the OTH for that matter. We may start seeing more SPCMs again because a Marine is not willing to waive his board when it’s likely that a MJ won’t give the BCD. Many would rather have that misdemeanor conviction and a better discharge. Those are my thoughts at least.

  20. Navy SDC says:

    What about the increase punishment (from 6 to 12 months confinement) at SPCM? That makes it more of a gamble to roll the dice.

  21. Brian le chien says:

    I think the interesting dynamic here is not whether the numbers are up or down, by why they are so significantly down in just one service (Navy). OPTEMPO is up in DoD, but I don’t think anyone would argue that it is extra high in the Navy.

    As a former Army TC, who recently deployed with a joint but Navy-heavy unit, I can say that the military justice cultures are very different. The few crimes that were GCMs were handled as GCMS. Crimes that would have been SPCCMs in the Army were adseped, without exception.

    I think part of the difference stems from the ease with which the Navy recruits and retains Sailors (as compared to the Army). It seemed like it was much harder for Sailors to get promoted, and retained. At the time, the Army was taking almost anyone. The Sailors we adseped seemed to genuinely want to be reatined.

    Also, the Navy sure seems to really like ordering Sailors to not wear civies (Article 13 be damned).

  22. Anonymous says:

    They are way down in the MC too.

  23. who's your daddy says:

    The defense bar won the argument and CAs have started being reasonable.
    Now we are all out of a job.

  24. Balkan Ghost says:

    Friend, do you have a cite or more info on Colonel Miller’s article. I’d like to check it out.

  25. Anon says:

    I think the type of recruit is also important. Navy and Air Force are much more technical services and attempt to recruit as such. Army and USMC are less tech and more brawns, not bad, just different. But this results in different cultures and the Navy never lowered it’s recruiting standards during he war. People matter and part of the result is less specials in the Navy.

  26. Charles Gittins says:

    I think the Navy and Marine Corps are doing more adseps for urine cases. I also believe that the Optempo has impacted the ability of sailors and Marines to find themselves in trouble.

  27. ksf says:

    BG,

    Here is the link to the article.

    http://www.marinecorpsgazette-digital.com/marinecorpsgazette/200701/?pg=55#pg55

  28. Bridget says:

    The trends come and go in how these matters are processed. There was a time, some years ago when the AF went through a phase of sending a drug pops to a GCM. There was a time just before 9/11 that had the USMC, at least here on the West Coast, sending all UAs to SpCM with many day-for-day plus BCD sentences.

    It is true that cost has much to do with the decision making. In the past, I recall a discussion with a commander, pointing out to him the relative advantage of 10 ad seps over 10 CM on his time and budget. Perhaps that idea of independent trial authority and budgeting might mean more consistent prosecution. (I think the Canadians are doing that).

    I am old enough to remember when the services actually retained those who had been court-martialed at SpCM, and certainly not separated after a SCM or 15. It comes and it goes.

  29. Anonymous says:

    I don’t think anyone has mentioned thsi yet, but I think a lot of it has to do with op tempo and the youth of our CAs. Op tempo means the CAs just want to get rid of the accused and get a new body. They cannot get a new one until the accused is off their rolls. ADSEP is the quickest way for them to get new bodies. Also, the vast majority of SPCMCA’s (the vast majority of the case drop off) are brand new 0-5s who come from a different generation, a younger a more tolerant generation. I know this sounds oversimplified, but I have seen it in practice. Things that used to be a huge deal are not so much these days. You don’t run the risk of acquittal or a NJP sentence with adesp either.

  30. Anon says:

    Please…let’s put a stake in the heart of wild theory #5 – courts are down because NCIS isn’t investigating. This is pure “bs” concocted by the “Lord of Military Justice Litigation Career Track” and has absolutely no basis in fact. For those who attended any of the 506 Panel hearings, you heard this myth blown out of the water. Current Navy JAG leadership has walked away from it. Let’s do the same….

  31. John Harwood says:

    Speaking only of the AF, these are my two cents:

    1. “Military Justice is Job One” used to be the motto, mission statement and credo of the AFJAG. Now it’s probably something like “Providing full spectrum legal operations to the warfighter.” I’m not commenting on whether that’s right or wrong; just pointing it out. The focus and emphasis shifted from MilJus to deployments and Ops. Understandable during a two-theater war.

    2. OSI/CID/NCIS don’t investigate crime anymore. If a case falls in their lap they’ll deal with it, but counter intel is their 97% focus right now.

  32. Anonymous says:

    @FormerTC: Why are SPCM proceedings taking up to a year? Seems like an awfully long time to investigate and prosecute relatively minor misconduct.