A case involving an Air Force general who dismissed charges against a lieutenant colonel convicted of sexual assault will be reviewed at the top levels of the Pentagon, Defense Secretary Chuck Hagel said in a letter released Monday. But it's seemed unlikely that the ruling would be changed.
Hagel said that under military law, neither he nor the Air Force secretary has the authority to reverse Lt. Gen. Craig Franklin's decision to overturn the conviction against Lt. Col. James Wilkerson, a former inspector general at Aviano Air Base in Italy.
Hagel's letter is dated March 7 and was sent to Sen. Barbara Boxer, D-Calif., who released it publicly. The Senate Armed Services Committee is holding a hearing Wednesday on sexual assaults in the military and the Wilkerson case is expected to be a major topic of discussion.
Boxer and Sen. Jeanne Shaheen, D-N.H., wrote to Hagel last week asking him to look into the case. They called Franklin's decision to overturn the jury verdict "a travesty of justice." Franklin is commander of the 3rd Air Force at Ramstein Air Base in Germany.
Sen. Claire McCaskill, D-Mo., told Air Force Secretary Michael Donley and Gen. Mark Welsh, the Air Force chief of staff, in a March 5 letter that Franklin's decision "shows ignorance, at best, and malfeasance, at worst." Franklin's decision undermines efforts by the Air Force and the other military branches "to erase a culture that has often turned a blind eye on sexual assault," McCaskill added.
Shaheen and McCaskill are members of the Senate Armed Services Committee.
The Air Force has been grappling for months with the fallout over a sex scandal at its training headquarters in Texas. Dozens of young female recruits and airmen at Lackland Air Force Base near San Antonio were victimized by their instructors who sexually harassed, improperly touched or raped them.
During January testimony before a House committee, Welsh likened sexual assault in the Air Force's ranks to a cancer and vowed to tackle the problem by screening personnel more carefully and putting an end to bad behaviors like binge drinking that can lead to misconduct.
But Welsh also acknowledged that the Air Force recorded a disturbing number of reports of sexual assault last year even as it worked to curb misconduct. The preliminary figures for 2012 show there were nearly 800 reports of cases, ranging from inappropriate touching to rape, according to Welsh. That would be a nearly 30 percent increase from 2011, when 614 cases were reported. The 2012 figures are being audited and will be included in a report the Defense Department will submit to Congress next month.
In his letter to Boxer, Hagel refers to Franklin as the "convening authority," a term for a commander who is responsible for establishing a court-martial. The Uniform Code of Military Justice gives a convening authority the "sole discretion" to reduce or set aside guilty verdicts and sentences, or to reverse a jury's verdict.
Wilkerson was convicted on Nov. 2 by a military panel on charges of abusive sexual contact, aggravated sexual assault and three instances of conduct unbecoming of an officer and a gentleman. The incident involved a civilian employee. Wilkerson was sentenced to a year in prison and dismissal from the service.
But Franklin exercised his discretion and reviewed the case over a three-week period and concluded "that the entire body of evidence was insufficient to meet the burden of proof beyond a reasonable doubt," Hagel wrote.
Although convening authorities are not required to provide reasons for their decisions, Hagel said he has directed the Pentagon's general counsel and the Air Force secretary to examine Franklin's decision "to determine how the factual basis for the action can be made more transparent."
Hagel also said the Wilkerson case raises the question of whether it is necessary or appropriate "to place the convening authority in the position of having the responsibility to review the findings and sentence of a court-martial," particularly when military law allows for a rigorous appeal process. He said he is ordering the Air Force and other military services to examine that question and determine if changes to military law are necessary.
Boxer said in a statement that she is encouraged by Hagel's response.
"I believe that we should end the ability of senior commanders to unilaterally overturn a decision or sentence by a military court and from the tenor of his letter, I am hopeful that Secretary Hagel will reach the same conclusion," Boxer said.
Rep. Jackie Speier, D-Calif., a member of the House Armed Services Committee, said she is planning to introduce legislation Tuesday that would strip commanders of the authority to overturn decision or lessen sentences made by courts-martial.
Eugene R. Fidell, who teaches military justice at Yale Law School, credited Speier for pushing for change, but warned that it could take months to get a bill through Congress. Among the thorny issues to be resolved are what, if any, role commanders should have in the administration of military justice and how current law should be adjusted to reflect a shift, he said.
"No one should be under any illusions that it can be done overnight," Fidell said.