In recent years, the military justice system has come under increased Congressional and public scrutiny. Driving much of this increased scrutiny is the issue of sexual assault. The dramatic increase in reported sexual assaults, coupled with the military’s response, resulted in public officials calling for dramatic reform of the military justice system. These calls for reform included limiting, and even removing, the role commanders play in the military justice system. The military departments must proceed carefully, though, with these calls for reform. Dramatic reforms designed to correct the apparent flaws in the military justice system may in turn undermine the system. Any reform effort must be built upon a solid understanding of what underlying factors account for the increase in service member misconduct.
This paper argues that both the explanation and the solution for the apparent increase in service member misconduct lies in good order and discipline. The supposed purpose of good order and discipline is to create a state of mind within service members where they will follow the orders of their superiors with obedience and dedication, subjecting personal interests to the unit good. Under this logic, good order and discipline should prevent issues such as service member on service member sexual assault or the murder of non-combatants in combat zones.
Good order and discipline failed commanders in these cases because good order and discipline does not operate individually. Instead, good order and discipline is a prong in the military justice trinity, consisting of the military justice system, due process, and good order and discipline. Taken together, the trinity guides service member misconduct and prevents such misconduct from arising. To have this effect, though, the trinity must be balanced. A balanced trinity exists when due process legitimizes the military justice system, which in turn provides the capacity for commanders to effectuate good order and discipline within their units.
In today’s military, the military justice trinity is not balanced. Since World War I, the military departments and Congress gradually infused due process rights into the trinity. As the due process prong grew, it impacted the military justice system prong. The court-martial process, the most severe disciplinary tool available to commanders, became a time and resource consuming process. Commanders wanted swift and efficient justice and as a consequence, rejected the court-martial process. In its place, they utilized nonjudicial punishment and administrative punishment. The marginalization of the court-martial process in turn impacted good order and discipline. A central requirement for good order and discipline is the commander’s ability to deter misconduct through punishment. A commander can only do so, though, if he or she has the punishment tools to deter misconduct. The current system, with an infrequent and laborious court-martial process, nonjudicial punishment, and administrative discharges, does not present the commander with that capability.
Pursuant to the military justice trinity construct, the recent bout of misconduct can be characterized as a breakdown in good order and discipline. For commanders to be able to remedy these breakdowns, the military justice trinity requires balance. Consequently, the military departments must drive Congress to constrain the extra-due process rights afforded to accused service members. Recognizing that fundamental constitutionally afforded due process rights legitimize the military justice system and provide a sense of fairness to good order and discipline, the military departments should seek to identify those extra-due process rights that serve to unnecessarily impede the court-martial process. Through this reform, the court-martial will again become an effective tool for commanders to preserve good order and discipline; thereby increasingly deterring service member misconduct in the future.
Available at: http://works.bepress.com/anthony_ghiotto/1/