Holcomb signs National Guard court-martial bill, despite opposition over ‘due process’ rights
Gov. Eric Holcomb signed a bill Wednesday that would make it easier to court-martial and administratively punish Indiana National Guard troops.
As it made its way through the legislature, House Bill 1076 faced opposition from a small, but growing group of lawmakers and left questions about existing disciplinary procedures.
National Guard leaders told lawmakers that the governor’s exclusive power to convene general courts-martial inhibited their ability to try troops for serious crimes. They argued expanding convening power to the guard’s highest ranking commander, the Adjutant General, would help prevent future issues. This new law does that.
Many states surrounding Indiana, like Michigan and Kentucky, have made similar changes in recent decades. National Guard Colonel and Staff Judge Advocate Tim Baldwin joined other guard leaders in testifying in support of the bill.
“Sexual assault is not being punished to the fullest extent because of my inability to convene these court-martials,” said Major General R. Dale Lyles, the adjutant general.
However it’s not clear why the Guard didn’t use the governor’s power in past cases, including in four alleged sexual assault cases last year that officials repeatedly referenced in testimony.
“We were not able to go to general court-martial, which would have allowed us to get a dishonorable discharge,” Baldwin said. “We did an administrative separation board, they were separated out of the army with the ‘other than honorable characterization of service.’ It’s not enough.”
The governor can only convene a general court martial after receiving a request to do so. A spokesperson for Holcomb’s office said he was never asked to convene during his 7 years in office. The Guard declined to explain why.
The new law also affects discipline for smaller offenses like showing up late to post. Troops no longer get the right to ask for a court-martial to prove their innocence and avoid punishments like reduction in rank or extra duties.
Supporters say this change ensures Guard commanders can efficiently handle misconduct using these “non-judicial punishments” or Article 15s.
“As a practical matter, these soldiers know if they refuse an article 15 and demand a court martial that we aren’t going to give it a court-martial, we’re not going to spend the time and the taxpayer money to conduct a court martial for someone who was late coming back to post,” Baldwin said. “They either get almost nothing, a memorandum of reprimand, or we go to separation procedures and they’re out of the National Guard, which we don’t want.
Lawmakers and advocates opposed to the bill said the change violated troops’ due process rights.
“I received an Article 15 for being late getting back to my post. And there were extenuating circumstances on that. Don’t think I really deserved it,” said Rep. Chuck Moseley (D-Portage). “I feel a little uncomfortable with the possibility of not providing that individual with all the due process, options and avenues that might be available to him.”
Rep. Renee Pack (D-Indianapolis), who is a U.S. Army veteran, authored an amendment that would have put troops’ right to request a court-martial back into the bill. It failed in the House and an identical version also failed twice in the Senate.
“Government inefficiency should not be an excuse for overreaching,” Pack said. “Let’s fix the system and not reject the guardsmen’s right to due process under the law.”
Sen. Jim Buck (R-Kokomo) was one of five GOP senators who voted against the bill after voting in favor of an identical version earlier in the session. He also voted in favor of the amendment to keep the right to request a court-martial.
“The first time when [the bill] passed out of the Senate, I voted for it,” Buck said. “But since that time, I’ve had a lot of conversations with people back home, and those that I trust that are lawyers … I’m going to vote for the amendment. Because I think not to vote for it, I may do harm to those men and women [of the National Guard].”
That amendment, and identical versions of it, failed repeatedly.
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The bill’s supporters also argued the administrative system that allows service members to appeal an Article 15 outside of a court-martial is sufficient.
“You have the right to consult a lawyer, have witnesses, have someone in your unit speak for you, appeal the judgment, a lot more, I think, than any other employer probably would give,” said Rep. Chris Jeter (R-Indianapolis), the bill’s author and a former military lawyer, in January. “The service members in the military are given more due process at more levels than any system on the planet. And that’s something we should all be very proud of.”
The bill also would remove commanders’ ability to confine troops for up to eight days as an Article 15 punishment, which supporters say is another reason why the right to request a court-martial is no longer necessary.
“So a guard member no longer is subject to having eight days of their freedom taken,” said Sen. Aaron Freeman (R-Indianapolis), the bill’s Senate sponsor, in January. “The trade-off of that is where you would then say, ‘you can no longer ask for a court-martial on these low-level issues.’ … All we’re doing is saying you no longer have the right to request a court martial in these situations where you’re showing up to drill several times late.”
People who oppose the bill, like Destiny Wells, argue that the remaining punishments, like extra duties and reduction in pay or rank, can still be severe. Wells is U.S. Army veteran, attorney and former Democratic secretary of state candidate.
“An employer can’t take away your pay, an employer can’t make you stay after work and clean a bathroom,” she said in a March interview. “I’ve had 20 years of service. I have seen a bevy of disciplinary actions. I have seen them at their best, and I have seen them at their worst. And I think that we always have to prepare ourselves for the worst because we owe that to soldiers and service members.”
In testimony and statements to Indiana Public Broadcasting, Guard officials gave unclear and sometimes conflicting answers to questions about how often these punishments – or court-martial requests in lieu of them – have occurred.
In a statement, a Guard spokesperson said that commanders are “not pursuing Article 15s because Guardsmen exercise their right to refuse non-judicial punishment. When a Guardsman refuses non-judicial punishment, it drives the convening of a court martial.”
But, Maj. Gen. Dale Lyles told lawmakers in testimony on the bill that there have been no requests to his knowledge. And, he said, the bill aimed to solve the “potential for a problem.”
The spokesperson declined a request to clarify whether the statement means there actually have been cases despite Lyles’ testimony.
Adam is our labor and employment reporter. Contact him at arayes@wvpe.org or follow him on Twitter at @arayesIPB.
