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2013 NDAA: New Policies on Military Sexual Assault

by Kathleen Gilberd

On January 2, President Obama signed the National Defense Authorization Act of Fiscal Year 2013 (“NDAA”), infamous in civil rights circles because it allows indefinite detention of US citizens based on suspicions of supporting terrorism. On the other hand, this year’s NDAA contains a record number of provisions on military sexual assault which, while primarily band-aid measures, will be significant in preventing or responding to assaults. Much of the credit for these provisions goes to the Service Women’s Action Network (“SWAN”), which conducted a vigorous lobbying campaign.

One new provision, section 578, seeks to eliminate retaliatory discharges by requiring that a general or flag officer to review and concur in administrative separations of members who have made an unrestricted (non-confidential) report of sexual assault, to ensure that the discharge is not retaliatory. Review is required for any involuntary discharge occurring within one year after an unrestricted report, if the member requests review on the ground that she or he believes the discharge was retaliatory. An implementing DoD policy is to be presented to the Committees on Armed Services no later than 180 days after the date of enactment of the NDAA. The policy becomes effective on that date and will apply to members who are “proposed to be involuntarily separated from the Armed Forces on or after that date.”

Policy to address sexual harassment

Section 579 of the Act requires DoD to establish a policy and plan for prevention and response to sexual harassment, an issue often overlooked in discussion of sexual assault. The policy must include training for all members on prevention of harassment, mechanisms for reporting harassment, a means for anonymous reports, and a mechanism for responding to incidents of harassment, “including through the prosecution of offenders.”

The Secretary of Defense must submit to the Committees on Armed Services a report setting out the policy within one year of enactment of the NDAA. While this is to be done in consultation with the services and the DOD Equal Opportunity Office, the section gives no indication of how the new program will fit with the existing policies on sexual harassment, handled through the Equal Opportunity system. The section also includes a requirement for DoD collection of information on substantiated incidents of sexual harassment, to be included in annual sexual assault reports.

This increased emphasis on sexual harassment, with its linkage of harassment and assault issues, represents an important step forward. Previously, only the Army had developed a joint Sexual Harassment and Assault Response and Prevention Program (SHARP), and it is to be hoped that the other services will follow suit.

Required surveys and training

Several provisions call for increased training around sexual assault and surveys of command climate on the issue. Under section 570 of the NDAA, which amends 10 U.S.C. 481, workplace and gender relation surveys will now include sexual harassment and discrimination, and sexual assault, linking these issues in reviewing command climate problems. Section 574 requires special training for commanding officers on sexual assault.

Section 572 includes requirements of command climate assessments regarding sexual assaults when a new commander assumes command and at least annually thereafter, including an opportunity for members of the command to express their opinions “regarding the manner and extent to which their leaders, including commanders, respond to allegations of sexual assault and complaints of sexual harassment and the effectiveness of such response.” It also includes a requirement that information about resources for complaints, such as hotline numbers and websites, be posted and widely disseminated, and a requirement for a general educational campaign to notify members about their rights regarding correction of military records after any retaliation for making a report of sexual assault or sexual harassment.

Augmented reporting required

Under section 575 the DoD will be required to include greater detail in annual reports on sexual assaults, including reasons for any dismissal of charges, character of discharge where an accused is administratively discharged or allowed to resign, any prior offense or admission to the service on a waiver for a sexual offense, branch of service of accused, involvement of alcohol in the offense, and specific punishment given at non-judicial punishments.

Reports will also be expanded to include the number of requests for transfer by victims, analysis of trends in the cases, analysis of training and response carried out by training commands, and analysis of specific factors that may have contributed to sexual assault during the year, with recommendations on ways to eliminate or reduce the incidence of those factors. These requirements will be added to annual reports beginning in 2014.

Independent Review Panel Created

Section 576 requires the Secretary of Defense to establish an independent panel to review and assess systems used to investigate, prosecute and adjudicate adult sexual assault and related offenses. The Secretary will also set up a panel to conduct an independent review of judicial proceedings involving adult sexual assault and related offenses since the amendments to the UCMJ mandated by sec. 541 of the 2012 NDAA. Both panels are to make recommendations for improvements.

According to section 572 the DoD is to “modify its sexual assault policy” within 180 days of enactment of the NDAA by adding, among other things, a requirement that service secretaries establish a record on the disposition of all unrestricted reports of sexual assault, whether that disposition is court-martial, discharge, or any other action, and a requirement that any member convicted of a covered sexual offense who does not receive a punitive discharge at court-martial be administratively discharged.

No enlistment waiver for sex-abuse or -assault offenders

Section 523 mandates a prohibition on enlistment waivers for felony sexual offenders, barring waivers for those convicted of felony rape, sexual abuse, sexual assault, incest or “any other sexual offense.”

Section 572 requires that records of unrestricted reports include all documentary information collected regarding the case (not just investigators’ reports), note of the punishment imposed, if any, any adverse personnel action taken, referrals for the subject of the investigation such as counseling or drug counseling. Further, disposition records must be maintained for a period of 20 years. Appropriate information from the reports is to be included in the Defense Sexual Assault Incident Database, and restricted (confidential) reports (DD form 2910) will be retained for 50 years from the date of signing or the period of time required for unrestricted reports in DTM 11-062, “Document Retention in Cases of Restricted and Unrestricted Reports of Sexual Assault,” or any successor policy, whichever is longer.

Pursuant to section 573 “special victim capabilities” are to be established in each service to investigate, prosecute and provide support for victims of child abuse, serious domestic violence, and sexual offenses. This will include special training for selected investigators from the military criminal investigative agencies, judge advocates, victim witness assistance personnel and administrative paralegal support personnel, to ensure effective worldwide response for sexual assault complaints. An initial capability is to be available within each service within one year of the enactment of the NDAA.

Section 571 of the NDAA amends 10 U.S.C. chapter 1209, section 12323 to create authority to retain reservists on active duty after assaults for line of duty (“LoD”) determination on the member’s request. Service Secretaries may order retention until completion of LoD determinations. Members are to be informed of this option as soon as practicable after they report a sexual assault.

If the member is already in reserve status and a LoD has not been completed, the member may request return to active duty until completion. The Secretary “may order” active duty in both instances. Requests must be decided within 30 days of the date they are made; if a request is denied, the member may appeal to the first general officer or flag officer in the member’s chain of command, and that appeal must be decided within 15 days of the date of appeal.

It remains to be seen how the provisions described in this article will be carried out in practice. We encourage counselors and attorneys to share their experiences with these provisions through On Watch.

Women in Combat: History and Future

A history of military service by women and an assessment of what lies ahead for female servicemembers

BY KATHY JOHNSON

Women served in the military since the Revolutionary War, when they worked as nurses, water bearers, cooks, laundresses and saboteurs, and they have served in some capacity ever since. In the Civil War women disguised themselves as men to serve in combat.

Several other countries already allow women to serve in combat units. For example, Denmark (1978), Norway (1984) and Sweden (1989), have given women equal opportunities to advance in the military by allowing them in combat.

The debate in the United States on whether women should be fully integrated into the armed forces originated in the 1940s and embraced women, blacks and other ethnic minorities. The debate led to allowing interracial military structures but did not provide for women in the military beyond a few positions. Pentagon policy denying women frontline combat roles, last updated in 1994, defines “direct combat” as “engaging an enemy on the ground with individual or crew-served weapons, while being exposed to hostile fire and to a high probability of direct physical contact with hostile personnel.”

Up to 230,000 posts open to women

The fear of women having to serve and die in combat positions helped defeat the Equal Rights Amendment in 1982. Despite the raising of such specters, women have frequently found themselves in combat in Iraq and Afghanistan, where more than 130 women have died and more than 800 have been wounded. These women are not given adequate credit for their combat experience, because they are only “attached” to their unit and not assigned. Women now make up almost 15 percent of the American military and their service has made it possible for the Army to become all-volunteer.

On January 24, 2013, Defense Secretary Leon Panetta announced that the military would finally lift the ban on women serving in frontline combat roles, overturning the 1994 rule that limited the roles for women in the armed forces to units below brigade level away from direct combat.  He announced the DoD’s renewed commitment that “everyone is entitled to a chance” to serve his or her nation in a combat role, thereby affecting the roughly 200,000 active military personnel who are women.

The Pentagon has said Congress will have 30 days to weigh in on the decision. The military services will have until May 15 to inform Panetta of implementation plans and until January 2016 to seek exemptions. However, the military wants to move as quickly as possible, noting that 230,000 positions were now potentially open to women, including posts in elite special operations commando units such as the Navy SEALs and Delta Force.

Public support for equality

Pressure for equality in the U.S. army had become more intense during the last decade as America’s “war against terrorism” developed. Public opinion polls show that a majority of Americans agree with the change in policy. For example, a nationwide Quinnipiac University poll conducted last year found that three-quarters of voters surveyed favored allowing women to serve in units engaged in close combat.

In addition, earlier-expressed fears of putting women in the trenches have been dispelled on two fronts. One, of course, is the change in the way the American public thinks about women. The other is the shortage of trenches in modern warfare and that a soldier on the front lines is not necessarily in a more dangerous position than a support worker. According to policy experts who have encouraged the military to lift the ban, much of the impetus appeared to come from Joint Chiefs, indicating that the top military leadership saw that the time had come to open up to women.

Lawsuit may have affected change

In recent months pressure also had been building to change the policy as a result of high-profile lawsuits. In November 2012 four women soldiers sued the U.S. Department of Defense because of the inequality of constraining women from serving in the front lines.1 The reasoning was that more than 280,000 US female soldiers had been sent to Iraq, Afghanistan and neighboring countries, and 152 of the 6,600 of US fatalities were women, proving that there is no real difference between front- or rear-lines once troops are deployed.

The plaintiff soldiers argue that the combat exclusion policy was unconstitutional; that it was based on outdated stereotypes of women and ignored the realities of modern warfare; that women who are serving in combat zones were denied recognition that would advance their careers; that it violated a Supreme Court ruling against government mandated sex discrimination without extremely persuasive justification; and that the policy denied women a “core component of full citizenship.”

According to the brief, “[t]wo of the Plaintiffs were awarded the Purple Heart after being wounded while serving in combat. Two received medals in recognition of their combat service-the Air Force Combat Action Medal and the Army Combat Action Badge. One earned a Distinguished Flying Cross with a Valor Device for extraordinary achievement and heroism while engaging in direct ground fire with the enemy after being wounded when her helicopter was shot down over Afghanistan.”

One of the plaintiffs, Maj. Mary Jennings Hegar, an Air National Guard helicopter pilot, was shot down, returned fire and was wounded while on the ground in Afghanistan. She could not seek combat leadership positions because the Defense Department did not officially acknowledge her experience as combat. Although the suit makes valid arguments, it is not clear how much effect it had on the Pentagon’s decision.

Women as 2nd-class members

The combat exclusion policy contributes to a military culture where women are considered as second-class members of the service. This sex discrimination leads to a hostile workplace for women and tolerance for sexual harassment, assault and rape.

In fact, one of the biggest dangers women in the military face is sexual attacks from male members of their own service. In 2011 there were 3,192 reported cases of sexual assault (the number unreported cases is unknown).2 This is another major problem facing the military and causing it to be a target of criticism (See article by Kathy Gilberd, “Continued Public Pressure Key to Addressing Sexual Assault in the Military” in On Watch issue XXIII.4). If women are officially allowed in combat and have a greater opportunity to advance in the military, it will help to change this culture and put men and women on an equal footing.

The physical fitness excuse

There is still opposition to the change of policy based on arguments that have long been used.

One is the belief that women are not able to fulfill the required fitness standards because of their smaller size and that they do not have the same endurance as men. The new policy does not change the physical and training standards already in place, but instead requires the U.S. military to allow women the chance to meet them.

Officials said repeatedly that they would not lower the physical standards for women in rigorous combat jobs like the infantry, but they also stated they would review requirements for all the military specialties in coming months and potentially change them to keep up with, for example, advances in equipment and weaponry. “I think we all believe that there will be women who can meet those standards,” General Dempsey said.

The unit cohesion excuse

The second reason women have been excluded from units below brigade level is the need to maintain unit cohesion, as allowing women to operate in male-dominated military roles would distract men from mission aims, because they would seek to protect women. The rule of the game was that unit cohesion, the bedrock on which performance of armies rest, has been traditionally built around male bonding. However, this has not been cited as a problem in units that have women “attached.”

In defense of the status quo, Lt. Gen. (Ret.) Jerry Boykin, Family Research Council’s executive vice president, said that “the people making this decision are doing so as part of another social experiment.” He especially criticized the concept of placing women into Special Forces units where “living conditions are primal in many situations with no privacy for personal hygiene or normal functions.” He appears to disregard the idea that the decision to be placed in these situations should be the prerogative of the women concerned.

The prospect of women in combat has been controversial even among female troops. In the July issue of the Marine Corps Gazette, Marine Capt. Katie Petronio, 28, wrote a controversial article entitled, “Get Over It: We are not all created equal.” In recounting her physically debilitating experience working alongside Marine infantrymen, Petronio said she suffered a spinal injury, muscle atrophy and became infertile as a result of her seven-month deployment to Afghanistan. She argued that allowing women into the combat would result in health problems and lower unit performance. Nonetheless, as has been stated, this should be the woman’s decision to make.

Endnotes

1. This fact apparently is making its way into public awareness. In the 2012 film Return, the lead character played by Linda Cardellini makes an offhand comment that the greatest danger “over there” (i.e. Iraq or Afghanistan) is being raped in a porta-potty by her own fellow servicemembers.

2. Mary Jennings Hegar, Jennifer Hunt, Alexandra Zoe Bedell, Colleen Farrell and Service Women’s Action Network are the plaintiffs in Hegar v. Panetta, 3:12-cv-6005 (N.D. Cal. filed Nov. 27, 2012).

Kathy Johnson practices law in Birmingham, AL. Gespass and Johnson have a general practice with an emphasis on human and civil rights. She began practicing law with the National Lawyers Guild’s Military Law Office in Yokosuka and Okinawa, Japan in 1973. A member of its steering committee, she helped to found the Guild’s Military Law Task Force.

 

Navigating the VA

A basic guide to how the VA system works and how to get earned benefits, along with practice pointers for vets and their advocates.

By Becca von Behren

Whether a service member wants to stay in the military or is fighting to get out, eventually, that person will be a veteran, and the Department of Veterans Affairs may play a significant role in the transition from active duty to veteran status.

This article gives a very basic overview of some of the more relevant principles of VA benefits, how the VA system works and some common myths about benefit entitlement. A few “practice pointers” are included to help avoid mistakes that newly discharged people often make in their encounters with the VA.