A Government Accountability Office (GAO) investigation into racial or gender disparities in the military justice system found that Blacks, Hispanics, and males were more likely than Whites or females to be tried in general and special courts-martial in all military services.
The Uniform Code of Military Justice (UCMJ) was established to provide a statutory framework that promotes fair administration of military justice. Every active-duty servicemember is subject to the UCMJ, with more than 258,000 individuals disciplined from fiscal years 2013-2017, out of more than 2.3 million unique active-duty servicemembers. A key principle of the UCMJ is that a fair and just system of military law can foster a highly disciplined force.
House Report 115-200, accompanying a bill for the National Defense Authorization Act for Fiscal Year 2018, included a provision for GAO to assess the extent that disparities may exist in the military justice system. For its report published May 30, GAO analyzed data from its own investigations, military justice, and personnel databases from the military services, including the Coast Guard, from fiscal years 2013-2017 and interviewed agency officials.
The findings of the report show that while military services collect gender information, they do not collect and maintain consistent information about race and ethnicity in their investigations, military justice, and personnel databases. This limits their ability to collectively or comparatively assess these data to identify any disparities (i.e., instances in which a racial, ethnic, or gender group was overrepresented) in the military justice system within and across the services. For example, the number of potential responses for race and ethnicity across the military services’ databases ranges from five to 32 options for race and two to 25 options for ethnicity, which can complicate cross-service assessments. The services also are not required to and, thus, do not report demographic information in their annual military justice reports—information that would provide greater visibility into potential disparities.
GAO’s analysis of available data found that Black, Hispanic, and male servicemembers were more likely than White or female members to be the subjects of investigations recorded in databases used by the military criminal investigative organizations, and to be tried in general and special courts-martial in all of the military services when controlling for attributes such as rank and education. GAO also found that race and gender were not statistically significant factors in the likelihood of conviction in general and special courts-martial for most services, and minority servicemembers were either less likely to receive a more severe punishment than White servicemembers or there was no difference among racial groups; thus, disparities may be limited to particular stages of the process. The Department of Defense (DOD) has taken some steps to study disparities, but has not comprehensively evaluated the causes of racial or gender disparities in the military justice system.
GAO puts the U.S. Coast Guard under the spotlight in its report, noting that the Coast Guard’s military justice database does not allow Coast Guard officials to query or report on gender data. Coast Guard officials told GAO that the military justice database—Law Manager—was designed to determine the status of court-martial cases, and captures attributes that are generated by relevant UCMJ documents. Those official documents do not require the annotation of demographics such as gender, so this information is not used in Law Manager.
Although the data collected and maintained was not consistent within and across the military services, each of the military services’ databases maintained race and ethnicity data for at least 99 percent of the servicemembers. However, the Coast Guard does not track information about race or ethnicity in its military justice database. Coast Guard officials again stated that this is because of how Law Manager was designed.
A Coast Guard official indicated that it would be feasible to modify Law Manager to make it easier to run reports and queries that include additional information so that any disparities that exist may be identified in future. GAO recommends that the Secretary of Homeland Security should ensure that the Commandant of the Coast Guard modifies Law Manager so that it can query and report on gender information.
The report also notes that the Coast Guard did not collect and maintain complete conviction and punishment data in its military justice database. Coast Guard officials acknowledged that incomplete conviction and punishment data entry is a consistent problem. They said that data entry had improved recently. On December 17, 2018, the General Counsel of the Department of Defense issued the uniform standards and criteria required by article 140a of the Military Justice Act of 2016. As part of these uniform standards, the services were directed to collect information about the findings for each offense charged, and the sentence or punishment imposed. The military services are to implement the Secretary’s direction no later than December 23, 2020. In the GAO report, the Department of Homeland Security says the Coast Guard will provide an update on its implementation progress by September 30, 2020.
The Coast Guard will also form a group to consider the feasibility of collecting and maintaining information for all nonjudicial punishment cases.