[Senate Hearing 112-217]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 112-217

 
  PROVIDING LEGAL SERVICES BY MEMBERS OF THE JUDGE ADVOCATE GENERALS' 
                                 CORPS

=======================================================================

                                HEARING

                               before the

                       SUBCOMMITTEE ON PERSONNEL

                                 of the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               ----------                              

                             JULY 20, 2011

                               ----------                              

         Printed for the use of the Committee on Armed Services


  PROVIDING LEGAL SERVICES BY MEMBERS OF THE JUDGE ADVOCATE GENERALS' 
                                 CORPS




                                                        S. Hrg. 112-217

  PROVIDING LEGAL SERVICES BY MEMBERS OF THE JUDGE ADVOCATE GENERALS' 
                                 CORPS

=======================================================================

                                HEARING

                               before the

                       SUBCOMMITTEE ON PERSONNEL

                                 of the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 20, 2011

                               __________

         Printed for the use of the Committee on Armed Services




        Available via the World Wide Web: http://www.fdsys.gov/

                               __________



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                      COMMITTEE ON ARMED SERVICES

                     CARL LEVIN, Michigan, Chairman

JOSEPH I. LIEBERMAN, Connecticut     JOHN McCAIN, Arizona
JACK REED, Rhode Island              JAMES M. INHOFE, Oklahoma
DANIEL K. AKAKA, Hawaii              JEFF SESSIONS, Alabama
E. BENJAMIN NELSON, Nebraska         SAXBY CHAMBLISS, Georgia
JIM WEBB, Virginia                   ROGER F. WICKER, Mississippi
CLAIRE McCASKILL, Missouri           SCOTT P. BROWN, Massachusetts
MARK UDALL, Colorado                 ROB PORTMAN, Ohio
KAY R. HAGAN, North Carolina         KELLY AYOTTE, New Hampshire
MARK BEGICH, Alaska                  SUSAN M. COLLINS, Maine
JOE MANCHIN III, West Virginia       LINDSEY GRAHAM, South Carolina
JEANNE SHAHEEN, New Hampshire        JOHN CORNYN, Texas
KIRSTEN E. GILLIBRAND, New York      DAVID VITTER, Louisiana
RICHARD BLUMENTHAL, Connecticut

                   Richard D. DeBobes, Staff Director

               David M. Morriss, Minority Staff Director

                                 ______

                       Subcommittee on Personnel

                      JIM WEBB, Virginia, Chairman

JOSEPH I. LIEBERMAN, Connecticut     LINDSEY GRAHAM, South Carolina
DANIEL K. AKAKA, Hawaii              SAXBY CHAMBLISS, Georgia
CLAIRE McCASKILL, Missouri           SCOTT P. BROWN, Massachusetts
KAY R. HAGAN, North Carolina         KELLY AYOTTE, New Hampshire
MARK BEGICH, Alaska                  SUSAN M. COLLINS, Maine
RICHARD BLUMENTHAL, Connecticut      DAVID VITTER, Louisiana

                                  (ii)

  
?

                            C O N T E N T S

                              ----------                              

                    CHRONOLOGICAL LIST OF WITNESSES
  Providing Legal Services by Members of the Judge Advocate Generals' 
                                 Corps
                             july 20, 2011

                                                                   Page

Dell'Orto, COL Daniel J., JAGC, USA, Ret., Chairman, Independent 
  Panel Review of Judge Advocate Requirements of the Department 
  of the Navy....................................................   478
Osman, Lt. Gen. Pete, USMC, Ret., Panel Member, Independent Panel 
  Review of Judge Advocate Requirements of the Department of the 
  Navy...........................................................   480
Chipman, LTG Dana K., JAGC, USA, Judge Advocate General of the 
  U.S. Army......................................................   489
Houck, VADM James W., JAGC, USN, Judge Advocate General of the 
  U.S. Navy......................................................   493
Harding, Lt. Gen. Richard C., JAGC, USAF, Judge Advocate General 
  of the U.S. Air Force..........................................   497
Ary, Maj. Gen. Vaughn A., USMC, Staff Judge Advocate to the 
  Commandant of the Marine Corps.................................   500

                                 (iii)


  PROVIDING LEGAL SERVICES BY MEMBERS OF THE JUDGE ADVOCATE GENERALS' 
                                 CORPS

                              ----------                              


                        WEDNESDAY, JULY 20, 2011

                               U.S. Senate,
                         Subcommittee on Personnel,
                               Committee on Armed Services,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:27 p.m., in 
room SR-232A, Russell Senate Office Building, Senator Jim Webb 
(chairman) presiding.
    Committee members present: Senators Webb, Hagan, 
Blumenthal, Brown, Ayotte, and Graham.
    Committee staff members present: Richard D. DeBobes, staff 
director; Leah C. Brewer, nominations and hearings clerk; and 
Jennifer L. Stoker, security clerk.
    Majority staff members present: Jonathan D. Clark, counsel; 
Gabriella E. Fahrer, counsel; Gerald J. Leeling, counsel; Peter 
K. Levine, general counsel; and Jason W. Maroney, counsel.
    Minority staff members present: Diana G. Tabler, 
professional staff member; and Richard F. Walsh, minority 
counsel.
    Staff assistants present: Jennifer R. Knowles and Breon N. 
Wells.
    Committee members' assistants present: Gordon Peterson, 
assistant to Senator Webb; Ethan Saxon, assistant to Senator 
Blumenthal; Charles Prosch, assistant to Senator Brown; Brad 
Bowman, assistant to Senator Ayotte; and Andrew King and Sergio 
Sarkany, assistants to Senator Graham.

        OPENING STATEMENT OF SENATOR JIM WEBB, CHAIRMAN

    Senator Webb. The hearing will come to order.
    Let me begin by apologizing for the delay here. We normally 
would have started much earlier. But this is a hearing that was 
requested by Senator Graham, and he has apparently been held up 
for a while. I hope he will show up in all due time.
    I didn't want to delay this hearing any longer by taking 
that risk. So we will go ahead and begin, and then hopefully, 
Senator Graham will be joining us soon.
    The subcommittee meets today to receive testimony on legal 
services provided by members of the Judge Advocate Generals' 
(JAG) Corps. As I mentioned, we are holding this oversight 
hearing at the request of Senator Graham. He has been a 
champion of the military legal community for some time.
    As one who has a rich appreciation for the critical role 
that our uniformed members of the JAG community perform, I 
would like to express my appreciation to him for all the work 
that he has done and also for his requesting this hearing.
    Many individuals outside the military associate JAGs solely 
with military justice. JAGs do play a significant role in 
administering and supervising the military justice system, 
which is inextricably linked to a commander's responsibility 
for maintaining good order and discipline. However, this is not 
the only important function of JAGs.
    As the independent panel that reviewed the judge advocate 
requirements of the Navy and Marine Corps pointed out, ``The 
demand for judge advocate support will continue unabated, 
driven by the increasing complexity and intensity of the legal 
and policy environment in which commanders are required to 
operate.''
    In addition to military justice requirements, the panel 
examined substantial and increasing operational law 
requirements of the Navy and Marine Corps, the requirements for 
judge advocates with litigation experience to support military 
commissions charged with trying detainees for violations of the 
law of war, and the new requirements for judge advocate support 
for the integrated disability evaluation system.
    JAG officers also are important players in addressing the 
legal complexities of defense contracting and acquisition 
programs that cost billions of dollars.
    One motivation for this hearing is the committee's 
longstanding concern about a series of appellate court 
decisions critical of the post-trial processes of the Navy and 
Marine Corps, addressing the denial of due process for 
defendants in those cases. Despite assurances that these 
problems were being addressed, they persisted, culminating in 
the case of United States v. Foster. This case is perhaps the 
most egregious example of how bad a system can get without 
proper accountability.
    Sergeant Foster was convicted of domestic rape in December 
1999. His record of trial languished in the Navy and Marine 
Corps appellate process until February 2009, when the Navy-
Marine Corps Court of Criminal Appeals overturned his 
conviction because the conviction ``could not withstand the 
test for legal and factual sufficiency.''
    Sergeant Foster spent more than 9 years in confinement 
awaiting the automatic appellate review of his case, a review 
that ultimately concluded that the conviction was not 
supportable. The court described the evidence of rape as 
``anemic at best'' and concluded, ``We have determined that 
Sergeant Foster's conviction for rape was improper, as the 
Government did not establish his guilt. Therefore, the 
appellant has served nearly 10 years of confinement in part for 
an offense of which he should not have been convicted.''
    The court also said, ``We find the delay in this case so 
egregious that tolerating it would adversely affect the 
public's perception of the fairness and integrity of the 
military justice system.'' In short, Sergeant Foster 
experienced a travesty of justice.
    As a result, the committee concluded that it could no 
longer rely on promises from the Department of the Navy to 
improve its system and reacted by requiring the Department of 
Defense (DOD) Inspector General (IG) to review the systems, 
policies, and procedures currently in use to ensure timely and 
legally sufficient post-trial reviews of courts-martial within 
the Department of the Navy.
    The DOD IG report will be included in the record of this 
hearing.
    [The information referred to follows:] 

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    Senator Webb. The DOD IG concluded that, ``Serious post-
trial processing problems persisted for at least the last two 
decades,'' and found that, ``Process failures occurred at 
almost every segment of the post-trial process as a result of 
inadequate leadership, supervision, and oversight.''
    In addition to requiring the DOD IG review, the committee 
included a provision in the National Defense Authorization Act 
for Fiscal Year 2010 establishing an independent panel to 
review the judge advocate requirements of the Department of the 
Navy. The panel examined the functions of judge advocates in 
the Navy and Marine Corps and found that both Services had 
failed to increase judge advocate requirements to keep pace 
with the increasing requirements for legal support to 
commanders operating in an increasingly complex and intense 
legal and policy environment.
    The final report of the independent panel to study the 
judge advocate requirements of the Department of the Navy, 
dated February 22, 2011, will be included in this record.
    [The information referred to follows:] 

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    Senator Webb. Finally, today's hearing will also consider 
efforts by the Secretary of Defense to reduce the numbers of 
flag and general officers. On March 14, 2011, Secretary Gates 
approved the elimination of 102 general and flag officer 
authorizations, 21 of which are Air Force authorizations. Three 
of these are Air Force judge advocate brigadier general 
positions that will be downgraded to colonel positions--the 
Staff Judge Advocates for Air Mobility Command, Air Combat 
Command, and Air Materiel Command.
    Senator Graham informed me that he has real concerns about 
this reduction, and right on cue, he enters the hearing. 
Welcome, Senator Graham.
    Senator Graham. I apologize.
    Senator Webb. As I mentioned earlier, we waited until 
quarter after and as a courtesy----
    Senator Graham. We got hung up with the Republicans, which 
is hard to believe. [Laughter.]
    Senator Webb. These are trying times. But you walked in 
just at the right moment. I will continue and then hand it over 
to you.
    Senator Graham informed me he has real concerns about this 
reduction. We are discussing the reduction in general officer 
authorizations in the Air Force JAG.
    I have also collected data on the numbers of general and 
flag officers in each Service, the number of JAG and flag 
officers, and court-martial and discharge data. I would like, 
actually, to take a little bit of time on this data.
    Since it was passed out while people were waiting for us to 
begin the hearing, I am sure there has been a little bit of 
buzz about the information on it. But let me start with the 
first slide, and I would like to just talk my way through it.
    [The slide referred to follows:]
      
    
    
      
    Senator Webb. This slide was put together at my request, 
which goes from left to right, with the end strengths of each 
of the military Services, then the number of general and flag 
officers in the Service, a ratio showing how many general or 
flag officers per servicemember, an outline of the JAG 
positions--general flag officer positions--and a ratio, and the 
number of Active Duty JAGs in each Service. It is a fairly 
interesting comparative chart. I believe strongly that the best 
way to have policy discussions is to start with facts.
    On this chart, you will see that the Army has 569,400 
people, its authorized end strength. They have 315 flag 
officers, for a ratio of 1 general officer to every 1,800 
soldiers.
    The Navy has 328,700 people on Active Duty and a total of 
257 admirals, flag officers, a ratio of 1 to every 1,279.
    The Marine Corps has 202,100 people in Active Duty, 86 
general officers, a ratio of 1 to every 2,350.
    The Air Force has 332,280 people on Active Duty, and 314 
general officers, for a ratio of 1 for every 1,058.
    You will see in this chart that the Air Force has presently 
13 four-star generals, which is more than any of the other 
Services. It has 43 three-stars, which is the same as the Army 
and the Navy, the Navy being almost identical in size to the 
Air Force, by the way.
    The Air Force has 107 two-stars, compared to Navy's 74. The 
Army has 117, and it has 151 general officer brigadier 
generals, which is actually more than any other Service.
    If you look at the JAG general flag officer positions, you 
will see that the Army has one 0-9, one 0-8, three 0-7s, and 
one 0-7 temporary position, for a total of six.
    The Navy has one 0-9, one 0-8, and then three 0-6s that are 
tombstar retirements to 0-7 upon retirement. So it has two 
flags.
    The Marine Corps has one 0-8, one two-star, and one colonel 
position that with a tombstone promotion to 0-7 upon 
retirement.
    The Air Force has six general officer flags as JAGs.
    If you could get the second chart, please?
    [The slide referred to follows:]
      
    
    
      
    Senator Webb. I actually asked for this data out of 
curiosity. As many of you know, I spent 5 years in the 
Pentagon. I believe that if you can go from the facts, you can 
have a better discussion of what the policy discussions should 
be.
    Again, if we are looking at the number of JAGs in the 
military, it is a good starting point to look at the legal 
proceedings over the past couple of years, just to see what 
they look like Service by Service. I am not going to spend a 
lot of time going through each one of these numbers, but the 
most interesting point for me on this is that the numbers seem 
to be wildly disparate.
    The Army doesn't have information available for the types 
of discharges that it ordered. If you read this chart, left to 
right, it is number of courts-martial, number of nonjudicial 
punishments (NJPs), the number punitive discharges as a result 
of courts-martial, the number of other than honorables (OTH) 
discharges due to administrative procedures, number of general 
discharges, and then the number of honorable discharges.
    Several things jump out, and I am saying this to make a 
point, as the chairman of this subcommittee, not simply for the 
hearing today, but as a continuation of the concern that I have 
with the data that we have been able to receive from DOD in a 
number of different cases.
    I asked, when the Assistant Secretaries for Manpower were 
testifying here, if they could give us some data on percentages 
of discharges--how many honorables, how many generals, how many 
OTHs, et cetera. There was a general response that they didn't 
know, which really stunned me, to be quite frank.
    I have a chart here where the Army--with plenty of advance 
notice--doesn't have the information. The Marine Corps, in 
terms of honorable discharges, we had a chart 2 days ago, where 
they said they had in fiscal year 2010 3,700 honorables, and 
then today we got a chart that said they got 39,862 honorables.
    This kind of fits into a pattern. When I first started 
working on data to try to support the GI bill, when I 
introduced it, one of my questions was since the GI bill is 
principally designed to help people in their readjustment to 
civilian life after the military, what percentage of people in 
the different Services leave with honorable discharges before 
the end of their first enlistment? It took me a year to get 
that data.
    We asked in one hearing how many contractors were in DOD? 
Nobody seemed to be able to give us an answer. I asked for 
historical data on the different commands and DOD headquarters 
units, and it took us over a month. I think it took us 3 months 
to get that data.
    Just as someone who has done this for a long time, I have 
to compare that kind of reaction to when I was committee 
counsel up here in 1977, when we had some very complex 
legislation on what was called the Carter Discharge Review 
Program, it dealt with the number of bad discharges that were 
given during the Vietnam era.
    At one point in those hearings, I asked DOD, can you give 
me the number of discharges by category, by year during the 
Vietnam era, by Service? I had it in 24 hours. I had from DOD a 
multiyear breakdown by Service, by discharge in 24 hours.
    I asked them the next week, can you give me the casualties 
in Vietnam, year-by-year, by Service and by ethnic groups? I 
had that in 24 hours.
    I don't think the computer systems back then were any 
better than they are now, and I don't think people were 
particularly any less challenged than they are right now. So it 
just raises a huge question for me for how we are communicating 
between DOD and the U.S. Congress and whether DOD is tabulating 
this kind of data.
    It is vital data. If you can't figure out where your 
discharges are, you really can't speak broadly to the nature of 
discipline in your Services.
    So I am taking some time to lay that out because it affects 
a lot of other things we are going to be doing in this 
subcommittee.
    With that, Senator Graham, you asked for this hearing, and 
I am going to just turn it over to you.
    Senator Graham. Thank you, Mr. Chairman.
    I appreciate you bringing this to our attention. Obviously, 
we need another hearing on why you can't provide information in 
a timely manner.
    Senator Webb. We will just keep raising it until they start 
giving us answers.
    Senator Graham. I join with you in that regard.
    But this hearing is about the role of the judge advocate in 
the 21st century. Our military has been deployed since 
September 11, 2001, almost continuously. I have had a chance to 
see in action on the ground judge advocates in Iraq and 
Afghanistan, doing things that didn't even exist 5 years ago.
    I don't know about the court-martial load here. I hope it 
is down. I think it probably is because you have the most 
motivated, well-trained, highly-educated force, so I would 
expect it to go down.
    But in terms of the workload of the judge advocate, it has 
just been amazing what the Navy and the Air Force have been 
doing to help our Army brethren over there with detainee review 
boards. The number of prisoners that have gone through American 
military custody in Iraq at one time was over 40,000, and all 
of them had to have some form of representation. They have been 
producing law of war detention boards literally under fire.
    So I am very proud of the JAG Corps officers who have 
provided great counsel and advice. Keeping these bad people off 
the battlefield is great for the warfighter because when the 
marines roll them up, if they are getting out in a week, that 
is bad for morale. Quite frankly, when the marines roll up 
people that shouldn't have been caught, it is bad for our 
ability to win over the population.
    So we have had a pretty robust legal presence in the war on 
terror, unlike any time I have ever seen.
    Mr. Chairman, I really respect you. But I can tell you one 
thing that happened without any doubt, in my view, is that 
during the initial invasion of Iraq, people in the Pentagon 
were not listening as closely as they should about detainee 
operations and that the military legal community's voice wasn't 
as strong as it should have been.
    Rank matters, you know better than anyone. The reason that 
the JAGs today are three-stars is because now they are 
guaranteed a seat at the table. When they were two-stars, their 
advice pretty well got canned. So it is pretty hard to ignore a 
lieutenant general.
    But the independent panel we asked to be impaneled was to 
look at a Navy-Marine Corps manning problem. So, if I could, 
Mr. Chairman, can I just open it up to our witnesses and have 
them tell us, if you don't mind, their general findings? Maybe 
we can learn from their experience. Is that okay?
    Senator Webb. We can do that. Welcome the witnesses in the 
first panel, and I appreciate your patience in having sat 
through a waiting period and my long intro.
    Senator Graham. Yes, well, that is my fault. I apologize.
    Senator Webb. First we have retired Colonel Daniel 
Dell'Orto, former Principal Deputy General Counsel for DOD, and 
retired Lieutenant General Pete Osman, who served as Deputy 
Commandant for Manpower and Reserve Affairs in the U.S. Marine 
Corps.
    Gentlemen, welcome. Your report is a very comprehensive 
review, and we look forward to hearing your observations.

    STATEMENT OF COL DANIEL J. DELL'ORTO, JAGC, USA, RET., 
     CHAIRMAN, INDEPENDENT PANEL REVIEW OF JUDGE ADVOCATE 
           REQUIREMENTS OF THE DEPARTMENT OF THE NAVY

    Colonel Dell'Orto. Good afternoon, Mr. Chairman, members of 
the committee. On behalf of Lieutenant General Osman, thank you 
for the opportunity to appear before the committee today.
    We are here to discuss the congressional mandate contained 
in section 506 of the National Defense Authorization Act for 
Fiscal Year 2010 to ``carry out a study of the policies and 
management and organizational practices of the Navy and Marine 
Corps with respect to the responsibilities, assignment, and 
career development of judge advocates for the purposes of 
determining the number of judge advocates required to fulfill 
the legal mission of the Department of the Navy.''
    In full compliance with the Federal Advisory Committee Act, 
the panel conducted 5 public meetings and posted more than 200 
documents on a Web site for review by interested persons.
    In addition to Lieutenant General Osman, the panel included 
a number of distinguished former public servants and former 
colleagues of mine who have served our Nation in the past and 
continue to serve in a variety of roles. They include the 
Honorable Judith A. Miller, former DOD General Counsel; Rear 
Admiral James E. McPherson, U.S. Navy, retired, former JAG of 
the Navy; and William R. Molzahn, former Deputy General Counsel 
for the Department of the Navy.
    Each of these persons volunteered for service on the panel 
and devoted considerable hours to the panel's work. They should 
be commended for stepping forward yet again to provide selfless 
service to our DOD and to our Nation.
    The panel received outstanding support from the Department 
of the Navy, including extremely professional administrative 
support from the Office of the Secretary of the Navy and the 
Office of the General Counsel of the Navy. The Navy provided 
the panel with a first-rate staff of Marine and Navy judge 
advocates, civilian attorneys, and administrative staff, all of 
whom are acknowledged in our report.
    We received tremendous support and cooperation from 
numerous witnesses from both inside and outside the DOD legal 
community. General David Petraeus; Vice Admirals Harry Harris, 
John Bird, and Robert Harward; and Marine Lieutenant Generals 
John Kelly and Richard Natonski provided invaluable insight 
into the critical role that judge advocates play in today's 
fluid operational environment in both regions of conflict and 
regions of apparent calm.
    Vice Admiral James Houck, the JAG of the Navy, and Major 
General Vaughn Ary, the Staff Judge Advocate to the Commandant 
of the U.S. Marine Corps, provided the panel with comprehensive 
testimony and other information regarding the organization, 
missions, and staffing of the uniformed legal community in 
their Services.
    The panel completed its 217-page report on February 22, 
2011, and delivered it to Secretary Gates and to the chairmen 
of the Senate Committee on Armed Services and the House Armed 
Services Committee.
    The panel addressed each of the areas of review mandated by 
the statute. By way of summary, the panel believes that the 
demand for judge advocate support will continue unabated, as 
Chairman Webb has already indicated, driven by the increasing 
complexity and intensity of the legal and policy environment in 
which commanders are required to operate.
    In addition, their contribution to good order and 
discipline, by supporting a just and functional military 
justice system, is equally noteworthy and essential to the 
overall well-being of the Navy and Marine Corps.
    Military justice, from complex, high-profile general 
courts-martial to due process advice and representation during 
administrative proceedings, needs to remain an important and 
necessary core function for the Navy and Marine judge 
advocates. In the end, proper manning, resourcing, training, 
and retention of judge advocates in the Navy and the Marine 
Corps is both a necessity and a cost-effective force multiplier 
that contributes to the ultimate mission success of both 
Services.
    I would request, Mr. Chairman, that our report also be made 
a part of today's record.
    Senator Webb. Yes, it has been entered as a part of the 
record.
    Colonel Dell'Orto. I would like to then offer General Osman 
the opportunity to add his comments. Upon completion of those 
comments, we are prepared to address your questions.
    Senator Webb. Let me also say at this point that your full 
statement, if it is different than what you gave, also will be 
entered as part of the record.
    [The prepared statement of Colonel Dell'Orto follows:]
       Prepared Statement by COL Daniel J. Dell'Orto, USA (Ret.)
    Good afternoon, Mr. Chairman and members of the committee, and on 
behalf of Lieutenant General Osman, thank you for the opportunity to 
appear before the committee today.
    We are here today to discuss the congressional mandate contained in 
section 506 of the National Defense Authorization Act for Fiscal Year 
2010 to ``carry out a study of the policies and management and 
organizational practices of the Navy and Marine Corps with respect to 
the responsibilities, assignment, and career development of judge 
advocates for purposes of determining the number of judge advocates for 
purposes of determining the number of judge advocates required to 
fulfill the legal mission of the Department of the Navy.''
    In full compliance with the Federal Advisory Committee Act, the 
panel conducted 5 public meetings and posted more than 200 documents on 
a Web site for review by interested persons. In addition to Lieutenant 
General Osman, the panel included a number of distinguished former 
public servants and former colleagues of mine who have served our 
Nation in the past, and continue to serve in a variety of roles. They 
include the Honorable Judith A. Miller, former Department of Defense 
General Counsel; Rear Admiral James E. McPherson, U.S. Navy (retired), 
former Judge Advocate General of the Navy: and William R. Molzahn, 
former Deputy General Counsel for the Department of the Navy. Each of 
these persons volunteered for service on the Panel and devoted 
considerable hours to the Panel's work. They should be commended for 
stepping forward yet again to provide selfless service to the 
Department of Defense and to our Nation.
    The Panel received outstanding support from the Department of the 
Navy, including extremely professional administrative support from the 
Office of the Secretary of the Navy and the Office of the General 
Counsel of the Navy. The Navy provided the Panel with a first-rate 
staff of Marine and Navy judge advocates, civilian attorneys and 
administrative staff, all of whom are acknowledged in our report. We 
received tremendous support and cooperation from numerous witnesses 
from both inside and outside the Department of Defense legal community. 
General David Petraeus, Vice Admirals Harry Harris, John Bird, and 
Robert Harward; and Marine Lieutenant Generals John Kelly and Richard 
Natonski provided invaluable insight into the critical role that judge 
advocates play in today's fluid operational environment in both regions 
of conflict and regions of apparent calm. Vice Admiral James Houck, the 
Judge Advocate General of the Navy and Major General Vaughn Ary, the 
Staff Judge Advocate to the Commandant of the United States Marine 
Corps provided the Panel with comprehensive testimony and other 
information regarding the organization, missions and staffing of the 
uniformed legal community in their Services.
    The Panel completed its 217-page report on February 22, 2011 and 
delivered it to Secretary Gates and to the Chairmen of the Senate 
Committee on Armed Services and the House Armed Services Committee. The 
Panel addressed each of the areas of review mandated by the statute. By 
way of summary, the Panel believes that the demand for judge advocate 
support will continue unabated, driven by the increasing complexity and 
intensity of the legal and policy environment in which commanders are 
required to operate. In addition, their contribution to good order and 
discipline, by supporting a just and functional military justice 
system, is equally noteworthy and essential to the overall well being 
of the Navy and Marine Corps. Military Justice, from complex, high-
profile general courts-martial to due process advice and representation 
during administrative proceedings, needs to remain an important and 
necessary core function for Navy and Marine judge advocates. In the 
end, proper manning, resourcing, training and retention of judge 
advocates in the Navy and Marine Corps is both a necessity and a cost-
effective force multiplier that contributes to the ultimate mission 
success of both Services.
    Lieutenant General Osman and I are prepared to address your 
questions. Thank you.

    Senator Webb. General Osman, welcome.

  STATEMENT OF LT. GEN. PETE OSMAN, USMC, RET., PANEL MEMBER, 
INDEPENDENT PANEL REVIEW OF JUDGE ADVOCATE REQUIREMENTS OF THE 
                     DEPARTMENT OF THE NAVY

    General Osman. Mr. Chairman, I can only echo what Colonel 
Dell'Orto has said with regards to the panel's activities and 
the support that we received. I can tell you that as a marine 
infantryman and the only non-attorney on the panel, it was an 
honor and quite an education.
    Senator Webb. Lending dignity to what otherwise would have 
been a vocal brawl, I am sure.
    General Osman. The Commandant had a reason for putting me 
there, I think, and I hope I fulfilled that for him.
    Really, it was a pleasure and an honor to be able to serve 
on the panel, and I look forward to the questions that you may 
have for us, sir.
    Senator Webb. Thank you very much. If you have a written 
statement, it will be entered in the record at this time.
    General Osman. Sir, I think that Dan would agree this is 
our written statement right here.
    Senator Webb. Thank you, and it is a part of the record.
    Senator Graham, I am just going to let you go ahead and ask 
questions.
    Senator Graham. In a couple minutes, tell us what you 
concluded.
    Colonel Dell'Orto. I think if you look at the report----
    Senator Graham. Assume we are all infantrymen up here.
    Colonel Dell'Orto. Except for myself, who was an artillery 
man in my earlier days, Senator Graham.
    I think we took a look at a wide array of issues, as the 
statute directed that we do. I think certainly, as has already 
been mentioned, judge advocates today perform a much broader 
array of duty, legal duties, than perhaps at any point in their 
history.
    I can certainly say from my personal experience as a judge 
advocate for 20 years that the judge advocates of today, in 
this environment--and certainly, I don't limit that to the 
combat environment in which so many of them are serving--the 
nature of the issues, the variety of issues go well beyond the 
focus that I had as principally a military justice 
practitioner.
    The people who preceded me and many of my generation 
focused much of their career principally on military justice, 
administrative law in the traditional sense, things of that 
nature. Today, when you look at Navy JAGs and all that they 
have responsibility for, with respect to maintaining their 
operational exercise areas free from litigation in our civil 
courts to what is being done on battlefields in Iraq and 
certainly now in Afghanistan with respect to rule of law, that 
goes well beyond purely legal practice.
    Senator Graham. Do you know how many Navy JAGs and Marine 
Corps JAGs have been deployed in Iraq and Afghanistan?
    Colonel Dell'Orto. There have been significant numbers, 
Senator Graham. I don't know the numbers. We certainly talk 
about the numbers who are performing and have been performing 
different types of duties with respect to, I think, rule of law 
functions, operational law functions, things like that.
    I know on my own trips to the theater, when I was still in 
the department, I ran across a number of Navy JAGs operating in 
support of either Marine units or serving in command elements 
as part of the legal staffs there. So, certainly, a number of 
them have been deployed.
    I would say that certainly--so the variety of duty that 
they perform is far broader than ever before. I would say that 
I think the expectations that they will be able to deliver 
their advice very quickly at a time when the information flow 
that commanders deal with, the information flow the senior 
leaders deal with is such a fast-paced environment that there 
is a premium on getting advice to commanders and senior 
civilian officials at an ever-increasing pace.
    I think that that, in addition to the variety of work that 
they do, puts a premium on having great amount of expertise 
embedded in each and every JAG, when he or she is performing 
duties at any level of command, at any location.
    Senator Graham. In terms of numbers, do we have enough? Do 
we need more?
    Colonel Dell'Orto. Again, our mandate, Senator Graham, was 
to look at the Navy and the Marine Corps. We believe, at the 
moment and as we look into the near term, on the Marine Corps 
side, we believe that the Marine Corps has programmed billets 
for enough judge advocates to meet current and immediate future 
missions.
    We have concerns on the Navy JAG side. If you assume that 
we will continue at the current pace of operations, the current 
pace of deployments for the fleet, if you look at the decision 
that has been made since the panel wrote its findings with 
respect to military commissions, we believe that you put all 
that together and the Navy program for the immediate 3, 4 years 
down the road, I would say, is probably about 200 attorneys 
short.
    I think we forecast about 950 attorneys for the Navy, and I 
think they are at about 750 or plan to be at about 750. Whereas 
the Marines, I think, are looking at--we fixed the requirement 
at about 550, and we believe the Marines have planned for that.
    Senator Webb. Maybe you can clear up one thing for me, and 
then I am going to move to others who may want to ask a 
question. To what extent does the Foster case represent 
something that was endemic to the system, and to what extent 
was that an anomaly?
    Colonel Dell'Orto. One of the problems with the Foster 
case, in and of itself, was that it followed on the heels of 
other episodes of similar delay in the process associated with 
review of a court-martial.
    I think my own experience as an appellate advocate in the 
Army would indicate that sometimes--I mean, things can happen, 
even in a system that is built to be as foolproof as we would 
like to think that these systems are. But I think the biggest 
problem for Foster is that we had a wakeup call in Moreno 
several years earlier, and one would have hoped that a case 
like Foster would not have suffered from the same fate.
    I didn't look at the record of trial in Foster. My 
assumption is that it was principally a case in which there was 
testimony going back and forth between the defense and the 
prosecution. I doubt that there was much in the way of 
forensics. I am making an assumption. Perhaps I shouldn't.
    But if you assume that--and I think the record of trial may 
have been 700, 800 pages or so. But again, in the absence of a 
highly complicated, science-based evidentiary issue--and it 
appears that there was not any--I would say, real esoteric law 
involved--it was a straight-up, factual--bust for factual 
insufficiency--it would seem to me that that is a case that 
should have been handled a little bit more cleanly.
    Senator Webb. In the normal circumstance, how long would 
that have taken?
    Colonel Dell'Orto. I don't know what the normal 
circumstance would be for the Marines, Mr. Chairman, and for 
the Navy appellate review authority or for the Navy-Marine 
Corps Court of Criminal Appeals. But we have multiple 
enlargements for the case once it gets to the appellate court. 
At some point, someone has to say hold it. We have gone too 
long.
    I would have hoped that someone would have seen fairly 
early on in the appellate process that this was going to be a 
factual sufficiency case and that there was some chance that it 
might get overturned on review. But again, I can't talk to how 
systematic this problem is or was.
    But we do know that we had at least one previous incident 
that members of this committee, we believe, were concerned 
about with Moreno, and yet Foster followed at some point on the 
heels of it.
    Senator Webb. Thank you.
    Senator Brown.
    Senator Brown. Thank you, Mr. Chairman.
    Just for purposes of disclosure, I am a JAG and have been 
for a while. I have recognized the old caveat that you never 
want a JAG until you actually need one, when your you-know-
whats are in the wringer and you need some guidance as to 
whether to go or not to go.
    Especially in this ever-changing world of war and conflict 
that we are in, the problem can potentially be that if you 
don't get the proper guidance, you are on the front page of the 
newspaper or on CNN, and you have created an international 
incident.
    So that is really where my head is at as to: are we going 
to make some cuts to save some money, or are we going to make 
some cuts and potentially start another worldwide incident? 
That is how basic it is for me.
    In your report, you spoke about the legal risks of failing 
to provide the right numbers of judge advocates with the right 
training and experience, and I reference especially in this 
complex legal environment. I guess the question for today is 
what effect precisely would result from lowering the number of 
operational lawyers, particularly in the Navy and Marine Corps?
    I know personally the effect I think it would have on 
individual servicemen, but can you comment on how it would 
affect our operations around the world, particularly with your 
perspective as a former infantry officer and commander?
    That would probably be you, General, and then I will 
certainly refer back to the artillery man.
    General Osman. Certainly, Senator Brown.
    As Mr. Dell'Orto explained, once a lot of these things had 
come to light, I will coin a phrase that the Commandant used. 
He saw a ``call to action'' and began to take--through the 
Total Force Structure Division within the Marine Corps, take a 
look at the number of judge advocates that were needed.
    It was determined to be 550, and as Mr. Dell'Orto said, the 
committee agreed with that number. The Marine Corps has begun 
quite a ramp-up to get there. In fact, if you look, back in 
September, I believe they had 438 judge advocates. Today, they 
have 510. So they are moving very quickly to get to that 550. 
So that is good.
    The Navy faces a challenge. Again, the panel had determined 
they needed about 950. I believe Vice Admiral Houck had figured 
somewhere around 925, something like that. It looks like the 
Navy is on a glide slope to go down to as few as 750. That 
would be a concern for me.
    The Navy does have a lot of lawyers involved in operational 
law, probably--certainly more than the Marine Corps has 
involved in operational law. If you look at the military 
justice piece, interestingly, the Marine Corps probably has a 
higher demand in that area than the Navy does. In fact, that 
may be one of the challenges that the Navy is going to face is 
ensuring they have the experienced litigators they need to 
address the military justice issue.
    So there are challenges out there, Senator Brown. That is 
the bottom line. Watching these numbers closely and the concern 
that this committee has for that is probably well founded.
    Senator Brown. So do you think it would affect our 
operations around the world, the lack of proper counsel?
    General Osman. Again, having listened to the testimony of 
Vice Admiral Houck, as well as a number of commanders in the 
field, the increasing requirement for lawyers in operational 
law is definitely there.
    In fact, when I did my interview with General Petraeus, 
asking how many judge advocates he had on his staff, he said, 
``Not enough.'' He had way more than he rated at that time, but 
nonetheless, he said he used them in a lot of positions that 
were out of the judge advocate community because, as he said, 
they are very good critical thinkers. That is what he needed.
    So the requirement is out there from the operational 
commanders in the field.
    Senator Brown. That is interesting because my next question 
was, could you comment on how the general feels or felt, 
actually, about his lawyers? But do you know how he would feel 
about terminating Active Duty military lawyers, as the Navy 
apparently is planning on doing?
    General Osman. Again, in the interview I had with him, he 
made it quite clear that he would take as many judge advocates 
as he could get to put on his staff. So, obviously, if there 
was a reduction in the numbers, he would not have liked that.
    Senator Brown. So when you were doing your report, did you 
speak to the Navy and determine what the discrepancy was 
between your numbers and their numbers and what the reasoning 
was? I know I am obviously going to ask the same question. What 
was your opinion on why? I mean, why do they think--is it just 
numbers driven? Do they need to save money?
    General Osman. I think that Vice Admiral Houck can probably 
better address how the Navy goes about determining the numbers 
that it needs of judge advocates.
    Again, as I said, in the Marine Corps, they have a thing 
called a Total Force Structure Division that sits down as the 
honest broker and literally works the numbers and came out with 
the 550. Again, the panel, after reviewing it, said that made a 
lot of sense.
    Senator Brown. I guess, Mr. Dell'Orto, just one final 
question. Can you comment on the relative strengths and 
weaknesses that struck you the most regarding how each Service 
provides judge advocate support?
    Colonel Dell'Orto. Again, Senator, when you talk about each 
Service, you are about the Marines versus the Navy?
    Senator Brown. Yes, each Service. Those two Services. So, 
yes.
    Colonel Dell'Orto. I think both are doing an awfully good 
job of providing support where their commanders believe they 
need support. I think when the Marines determined that they 
were going to put judge advocates at battalion and regimental 
level for their deployed forces, I thought that was a 
significant commitment on the part of the Marine leadership to 
ensure that commanders, I mean, at the lowest levels had access 
to legal advice.
    I think the Navy certainly has, in terms of supporting the 
Marine Corps in some of the prosecutions that have taken place 
where the Marine Corps needed additional counsel in support of 
its freedom of navigation efforts and, as I alluded to earlier, 
some of the environmental battles they are fighting to maintain 
their ranges or their exercise areas, I think the Navy JAG 
community and the leadership has been doing a very good job in 
deploying their JAGs where they think they have some 
significant needs.
    I think they have been utilizing their JAGs correctly. I 
think the question is, at least with respect to the Navy, 
whether they are going to have enough to do all that they are 
being asked to do.
    Senator Brown. Thank you, Mr. Chairman.
    Colonel Dell'Orto. May I add one additional comment in 
response to Senator Brown and General Osman?
    We highlighted the number of general and flag officers who 
provided information to us and were interviewed by us. We 
didn't have to go soliciting that. One of the things that I 
think we found remarkable, they came to us. They wanted to talk 
to us about the value that they find in the presence of their 
JAGs.
    So, believe me, I mean, as great as it was to have General 
Petraeus come in and do that for us or Admiral Harris, whom I 
know well from the multiple assignments he has had, we didn't 
have to go beg them to do that. We didn't have to ask them. 
They just came to us because they--it was a testament to the 
value they placed on the role--they place on the role of JAGs 
in their responsibilities.
    Senator Webb. Thank you, Senator Brown.
    Just as an observation from General Osman's comment about 
the different functions of the JAGs in different disciplinary 
environments in the Service, if you look at this data sheet 
that we have here, the Marine Corps had six times as many 
courts-martial as the Navy did last year. If you figure that 
the manpower is about two-thirds, that that force has about 
two-thirds, that means the Marine Corps had nine times the rate 
of court-martial as the Navy did last year.
    Senator Ayotte?
    Senator Ayotte. Thank you, Mr. Chairman.
    I want to thank both of you for coming here today. This is 
a very important issue. It is so important that we respect the 
rule of law and that particularly those who serve are afforded 
the presumption of innocence.
    It is a fundamental of our constitutional rights. I think 
that the JAG Corps performs such an important function in our 
armed services. So I really appreciate the analysis that both 
of you have done.
    Can you help me understand the Foster case, an 
understanding that that was just an egregious situation. Are 
there proper systems in place to avoid that happening again, in 
your opinions?
    Colonel Dell'Orto. I think the Navy and Marine Corps have 
certainly taken steps to correct the failures in that. We 
outlined several things in the report that have already been 
done to take into account an administrative responsibility for 
watching these cases as they move through the system.
    I think more is being done. The Navy, I know, is having a 
study done that will take a look at what the Army and the Air 
Force have done over the years with respect to tracking cases 
from cradle to grave, if you will.
    I know my experience, when I was a trial counsel, I had a 
retired E-9 as my paralegal. When I was the chief of military 
justice, and if we didn't move a case quickly, he was getting a 
call from Washington and the clerk's office about where this 
case is, why isn't it moving more quickly?
    This was prior to the computer age, with databases and 
systems that would automatically trigger a request for 
information. There were people literally looking at the reports 
and asking questions if a case didn't appear to be moving 
quickly.
    As a military judge in Korea in the 1990s, I had to fill 
out a report at the conclusion of every case I tried that 
triggered the tracking of that case back in Washington. So, you 
had parallel paths for reporting of the cases taking place. 
Judiciary was tracking the case, and certainly, the command had 
responsibilities coming back into the Army Legal Services 
Agency for tracking a case.
    I always felt that system held up pretty well. I can't say 
that the Army was immune from having a Foster-like case.
    But I have commended that to Vice Admiral Houck, and I 
know--and his response to me is that they are already looking 
at that and looking at the systems in place in the other 
Military Departments and Services to see whether they can learn 
from those and adapt some of those systems. Because there are 
systems that work, in my view.
    Senator Ayotte. Particularly, as you point out, in the Army 
and the Air Force and then also, obviously, on the civilian 
side of how things are tracked. How far off are they from 
implementing an actual system that would be similar or have 
similarities to what the Army and the Air Force have in place?
    Colonel Dell'Orto. Senator, as we point out in the report, 
certain things have already taken place. They are not 
necessarily tied to, I think, the assessment or review of what 
the other Services are doing. That piece is underway right now, 
and I don't know how close they are to completing that 
assessment to determine whether those systems are transferable 
into the Navy-Marine Corps situation.
    Senator Ayotte. Did you get a good sense of urgency? 
Because this seems like a very urgent situation, in my opinion.
    Colonel Dell'Orto. I did. But I will let General Osman 
speak for himself on that.
    General Osman. As Colonel Dell'Orto said, both Services 
have taken some initiative with respect to tracking. The Navy 
has their court-martial tracking and information system that 
they are utilizing now, and the Marine Corps has a case 
management system that they are using to help track cases.
    I think the panel would say that both of those still need 
some work. They would not stand alone as they are. But 
nonetheless, DOD is looking at what the Air Force and Army do; 
so they are pursuing alternative case tracking systems that 
will assist them in this.
    Senator Ayotte. Can I ask you both about the military 
commission system? I am a strong supporter particularly of 
using the military commission system to try individuals at 
Guantanamo. I am very pleased that the administration, for 
example, has changed their position on individuals like Khalid 
Sheikh Mohammed because I think it is important for the 
security of the American people.
    What is your assessment of the litigation teams with 
respect to handling military commissions? Again, I want to also 
emphasize the importance of the military commissions points out 
the importance of having a robust and sufficient JAG Corps 
because it shouldn't just be the military commissions. We don't 
want our soldiers to be given short shrift because we have to 
focus all the resources there. Sufficient resources have to be 
there to cover all of this.
    Colonel Dell'Orto. As one who was there at the inception of 
military commissions and has been part of the effort to help 
get the right staffing in place for military commissions, I 
strongly support the view that we need to put first-class 
talent in the roles of prosecutors, defense counsels and 
judges. I similarly believe that for our courts-martial, 
regardless of the number, we need to ensure that we have first-
rate lawyers as prosecutors, as defense counsels, and as 
judges.
    We face an interesting dilemma at this point. As the 
numbers that the chairman has requested are examined, you see 
that the numbers of courts-martial that are being tried 
continues to decline. Certainly from my time as a prosecutor 
and defense counsel in the 1970s and 1980s, in both the 
continental United States (CONUS) assignments and in European 
assignments, our numbers were significantly higher.
    All of us who were military justice practitioners then 
tried a lot of cases. Our predecessors who served in Vietnam, 
Germany, Europe, and overseas assignments during that era and 
immediately following tried far more cases than I did and my 
contemporaries.
    You get better as a military justice practitioner the more 
you practice that craft, whether you are a trial counsel, a 
defense counsel, or even a judge. That is not to say every case 
you try needs to be a general court-martial to get better.
    An Article 15 turndown where both sides are going at each 
other tooth and nail is a great opportunity to learn your craft 
as a trial counsel, whether you are trying or prosecuting or 
defending. You learn that in series of plateaus.
    You may try your first 20 cases, and the bulk of them as a 
trial counselor are guilty pleas. You go in there and you are 
sweating that that defendant is going to bust providency on 
that case, and you are scared to death you are going to have to 
try that case.
    By the time you get to that 40th or 50th case--and I don't 
want to be cynical about this--but you are almost hoping that 
he busts providency because you can't wait to try that case.
    I will confess that I sort of went kicking and screaming to 
be a defense counsel. But once you get in the saddle and you 
get the hang of it, you appreciate, as you go through a series 
of plateaus in your development as a counsel and get 
significant numbers of cases under your belt, you gain a full 
appreciation for the importance of that role not only for the 
client, but also the importance of the role for that system of 
justice.
    So how do we handle this now? How do we handle the needs to 
have highly qualified, skilled counsel trying cases where there 
aren't that many cases to be tried?
    How do we ensure that we have the right set of trial 
counsel, defense counsel, and judges to be thrown into military 
commission mix, when perhaps they are still not quite done 
developing that skill set in the court-martial realm?
    We have struggled with that. We struggled through it the 
whole time, as post-September 11, 2001, when the President's 
order on military commissions came out. It was a constant 
battle, particularly with the lurching back and forth about 
whether we were going to try cases at military commissions.
    We took testimony from retired Vice Admiral MacDonald, who 
is now the convening authority for military commissions. He 
told the panel that he has been assured by each of the Judge 
Advocates General that he will get first-rate counsel to fill 
those billets as we go forward, if and when the decision was 
made to go forward with military commissions, as that decision 
has since been made.
    He is also counting on support from the Department of 
Justice, where, presumably, you have people who have spent a 
little bit more time in the courtroom, who will also fill in 
and be part of the mix of attorneys on the trial counsel side, 
on the prosecution side.
    Certainly, my experience, when I was there, the defendants 
were getting a lot of highly skilled lawyers from the defense 
bar stepping forward, as we expected and hoped they would, to 
step forward and defend people in the military commission.
    So I don't know that we will ever be completely satisfied 
that we have all the right people, but I know a lot of 
commitments have been made to ensure that the right people are 
there.
    Senator Ayotte. Thank you.
    Senator Webb. Thank you, Senator Ayotte.
    Gentlemen, thank you for appearing before us today. We 
appreciate your work in this vital area. Again, I apologize for 
having been late in opening this hearing.
    I will now welcome our second panel, consisting of 
Lieutenant General Dana Chipman, JAG of the Army; Vice Admiral 
James Houck, JAG of the Navy; Lieutenant General Richard 
Harding, JAG of the Air Force; and Major General Vaughn Ary, 
Staff Judge Advocate to the Commandant of the Marine Corps.
    We look forward to your assessment of and response to the 
DOD IG's report and the independent panel's review of JAG 
issues and your assessment of the manning and structure of your 
respective JAG Corps.
    Without objection, again, your full written statements will 
be included in the record of the hearing. We will ask each of 
you to make an oral statement of your choosing once you get 
seated.
    General Chipman, we will start with you and move across the 
table. Welcome.

  STATEMENT OF LTG DANA K. CHIPMAN, JAGC, USA, JUDGE ADVOCATE 
                    GENERAL OF THE U.S. ARMY

    General Chipman. Thank you, Senator Webb.
    Mr. Chairman, members of the subcommittee, thank you for 
the opportunity to discuss the provision of legal services by 
the outstanding members of the Army JAG's Corps--Active, Guard, 
Reserve, and civilian--both in deployed environments and at 
home station.
    Before I begin, I would like to thank you and the members 
of this body for your support of the men and women of our Armed 
Forces. I note that everyone in this room uniquely exemplifies 
our joint team commitment.
    Sir, you served on Active Duty. We have members of the Air 
Reserve, the Army Guard, the JAG Corps. We have the military 
spouses, because we recruit individuals and yet we retain 
families.
    I would like to thank all of you for your service to our 
joint team.
    The Army JAG Corps is comprised of about 1,900 judge 
advocates, 100 warrant officers, and 1,800 enlisted paralegals. 
Currently, we have in excess of 140 Army judge advocates 
deployed to Afghanistan, in excess of 100 in Iraq, and 300 more 
serving in 19 other countries overseas.
    We have five Active component general officers providing 
strategic oversight of our corps, while ensuring that the 
Army's most senior leadership receives the trusted and 
experienced counsel it demands. On a temporary basis, we have a 
sixth general officer. He serves in a joint billet in 
Afghanistan, providing support to rule of law operations.
    In addition, we have two brigadier generals in the Army 
Reserve and one in the Army Guard. They play an essential role 
in ensuring the effective integration of approximately 5,000 
Reserve and Guard legal personnel into a unified team, without 
which we could not provide the support we give to our 
commanders, soldiers, and their families.
    Army commanders expect our judge advocates to be highly 
versatile and proficient in the core legal disciplines and, 
when deployed, to be fully competent in a variety of subjects 
ranging from detainee operations, foreign claims, to 
interagency collaboration in support of rule of law operations.
    When they return to home station, the focus shifts, and our 
judge advocates are called upon to advise on such diverse 
matters as disability evaluation system, Federal litigation, 
environmental law, and civilian personnel law.
    To improve the responsiveness of our legal support, judge 
advocates are now embedded at the brigade level and, in some 
cases, even at battalion level. Army judge advocates are 
committed members of the joint team. There is no doubt in my 
mind that serving alongside our colleagues from the Air Force, 
Navy, Marine Corps, and Coast Guard makes us more effective.
    Military justice remains our core competency. Although our 
court-martial rates have remained relatively stable in recent 
years, with the exception of summary courts-martial, which have 
decreased substantially in the last year, the complexity of 
those cases we try is increasing.
    We have invested considerable resources in training our 
trial counsel and our prosecutors, to better prosecute cases 
involving crimes of sexual assault. This has included the 
appointment of 15 special victim prosecutors (SVP), with 
another 8 on the way, and 5 highly qualified experts training, 
coaching, and teaching those SVPs. While much work clearly 
remains to be done in this area, I firmly believe we are now on 
the right track.
    I am also committed to improving the training of our 
defense counsel to ensure that the soldiers they represent 
receive effective representation.
    Finally, our appellate docket is carefully managed to 
ensure that we timely dispose of those cases, those courts-
martial on appeal. The success of our legal operations depends 
heavily on the support of our warrant officers and our enlisted 
paralegals.
    I would also like to highlight the phenomenal work being 
done by our civilian attorneys and paraprofessionals, who 
provide essential continuity and subject matter expertise to 
our home station legal offices.
    In conclusion, the state of the Army JAG Corps is strong. 
Recruiting and retention are at all-time highs. Morale remains 
high, in spite of the fact that the Army is well into its 10th 
year of sustained combat operations.
    Commanders have great confidence in their judge advocates 
and value the contributions they make to mission 
accomplishment. I am confident in our ability to meet the 
changing needs and requirements of our Army.
    I am pleased to submit a more detailed written statement 
for the record. Again, thank you, and I would be pleased to 
answer any questions you may have.
    Senator Webb. Thank you, General. Your full written 
statement will be entered into the record at this point.
    [The prepared statement of General Chipman follows:]

          Prepared Statement by LTG Dana K. Chipman, JACG, USA

                              INTRODUCTION

    Mr. Chairman and members of the subcommittee: Thank you for the 
opportunity to discuss the provision of legal services by the 
outstanding members of the Army Judge Advocate General's Corps--Active, 
Guard, Reserve, and civilian--in deployed locations and at home 
station. Before I begin, I want to thank you and members of this body 
for your support of the men and women of our Armed Forces.

                           PERSONNEL OVERVIEW

    The Active Army JAG Corps is comprised of 1,870 Judge Advocates, 99 
warrant officers, and 1,831 enlisted paralegals. The number of Judge 
Advocate position allocations has increased by 329 since September 11. 
This is the result of an unrelenting demand for legal support from 
commanders who operate in an increasingly complex and legally intensive 
environment. Currently, there are 142 Army Judge Advocates deployed to 
Afghanistan and 113 Army Judge Advocates still serving in Iraq. In 
addition, there are 304 Judge Advocates serving in more than 19 other 
countries in support of our Army deployed overseas.
    The JAG Corps continues to attract talented lawyers through its 
aggressive on-campus recruiting program, and recruited at 199 of the 
American Bar Association (ABA) accredited law schools during the fiscal 
year 2010 and fiscal year 2011 on-campus recruiting seasons. In fiscal 
year 2010, we welcomed 164 attorneys into the Regular Army, 94 
attorneys into the Army Reserve, and 93 attorneys into the Army 
National Guard. As of July 15, 2011, we have accessed 151 attorneys 
into the Regular Army, 79 attorneys into the Army Reserve, and 74 
attorneys into the Army National Guard.
    Diversity in the JAG Corps has continued to remain at high levels, 
with women now accounting for approximately 25 percent of all Active 
Duty Judge Advocates. Minority officers comprise about 15 percent of 
the JAG Corps' active duty strength.
    We have five Active component general officers providing critical 
strategic oversight of our Corps while ensuring the Army's senior 
leadership receives the trusted and experienced counsel it demands. On 
a temporary basis, we have a sixth general officer serving in a joint 
billet in Afghanistan as the Deputy Commander, Combined Joint 
Interagency Task Force 435 and Commander, Rule of Law Field Force, 
Afghanistan. He will soon assume new duties as the Chief Prosecutor, 
Office of Military Commissions. In addition, we have two Brigadier 
Generals in the Army Reserve and one in the Army National Guard. They 
play an essential role in ensuring the effective integration of 
approximately 5,000 Reserve and Guard legal personnel into a unified 
team without which we could not provide the support we give to our 
commanders, soldiers, and families.

                       DELIVERY OF LEGAL SERVICES

    Army commanders expect their Judge Advocates to be highly versatile 
and proficient. They must operate effectively within our six core legal 
disciplines: military justice; international and operational law; 
administrative and civil law; contract and fiscal law; claims; and 
legal assistance. In addition, Army legal personnel, when deployed, 
must be fully competent in a variety of subjects ranging from detainee 
operations and foreign claims to interagency collaboration in support 
of Rule of Law operations. When they return to home station, the focus 
shifts and Judge Advocates are called upon to advise on such diverse 
matters as our disability evaluation system, Federal litigation, 
environmental law, and civilian personnel law.
    To improve the responsiveness of our legal support, Judge Advocates 
are now embedded at the Brigade level and, in some instances, at the 
Battalion level. They are trusted advisors who proactively address 
issues before they become problems. Army Judge Advocates are also 
committed members of the Joint Team. There is no doubt in my mind that 
we are most effective when serving alongside our colleagues from the 
Air Force, Navy, Marine Corps, and Coast Guard, and with our dedicated 
civilian attorneys as well.
    The Judge Advocate General's Legal Center and School (TJAGLCS) 
plays a critical role in preparing Army legal personnel to deliver 
competent legal services across the spectrum of Army operations. 
TJAGLCS' resident program continues to educate almost 5,000 students 
per year and, in combination with non-resident programs, including 
distributed learning, and onsite training for Army Reserve component 
attorneys, TJAGLCS educates an increasing number of lawyers and legal 
paraprofessionals annually, totaling over 18,000 students in fiscal 
year 2010. In addition to teaching three Judge Advocate Officer Basic 
Courses for new Judge Advocates each year, TJAGLCS conducts the ABA 
recognized Graduate Course that awards a Master of Laws degree in 
Military Law to career Judge Advocates, and provides continuing legal 
education in over 70 functional area courses.
    The U.S. Army Litigation Division provides representation to the 
Army and Army officials in four areas of civil litigation: Military 
Personnel Law, General Litigation, Civilian Personnel Law, and Tort 
Litigation. The Army has approximately 925 active civil cases. During 
the first 6 months of 2011, Litigation Division received 170 new cases 
and successfully closed 162 cases. We continue to see a large number of 
cases challenging military personnel decisions, official decisions by 
government officials via Bivens suits, and government information 
practices. The nature of our practice continues to be highly complex as 
we face due process, First Amendment, and equal protection litigation, 
frequent filings for information under government information practices 
statutes, challenges to the Feres doctrine and the Department of 
Defense's Homosexual Conduct Policy, and complicated jury trials in 
employment discrimination law.
    Army legal assistance services remain in high demand. During fiscal 
year 2010, we opened 187,239 cases. Our largest areas of service remain 
in the area of Estate Planning (54,078) and Divorce/Separations 
(33,671). In assisting our clients, Army legal offices prepared a 
significant number of legal documents. Powers of Attorney were the most 
frequently prepared document (324,272). In addition, our legal 
assistance offices prepared 41,482 wills and 2,969 separation 
agreements. They also provided 328,939 notarizations and referred 2,044 
clients to civilian attorneys.
    Army legal assistance personnel, together with unit tax advisors, 
temporary employees, and volunteers prepared and filed 121,834 Federal 
and 76,697 State income tax returns during the tax filing season. More 
than 90 percent of the Federal income tax returns were filed 
electronically. The soldiers, retirees, and family members who visited 
our Tax Assistance Centers saved over $32,750,000 in tax preparation 
and filing fees last year. Every year, legal assistance services 
collectively save our clients substantial fees they would otherwise 
incur if purchasing the advice and services. Using average national 
costs of selected services provided by the ABA Standing Committee of 
Legal Assistance for Military Personnel, legal assistance offices saved 
our clients over $86,250,000 in legal fees (including the above 
mentioned over $32,750,000 in tax return preparation fees) in fiscal 
year 2010.
    Enhancing legal support to soldiers processing through the Medical 
Disability Evaluation System (DES) remains an important focus area. In 
fiscal year 2010, we had 26 counsels serving as Soldier's Physical 
Evaluation Board Counsel and 23 serving as Soldier's Medical Evaluation 
Board Counsel (SMEBC). They were supported by 36 paralegals. Of these, 
27 counsel and 16 paralegals are Reserve component soldiers mobilized 
to support this critical mission. The recent establishment of the SMEBC 
function has been extremely successful. By providing counsel earlier in 
the DES process, we more clearly identify the medical conditions to be 
addressed in the process, ensure appropriate documentation of the 
conditions, assist Soldiers in better understanding the system and help 
them have reasonable expectations of the likely results of their case. 
This has resulted in more complete case files moving forward for 
adjudication, better results for soldiers and a reduction in the number 
of formal Physical Evaluation Boards being requested by soldiers.
    The U.S. Army Claims Service (USARCS) and claims offices worldwide 
continue to vigorously examine and settle meritorious claims against 
the U.S. Army brought under the Federal Tort Claims Act, the Personnel 
Claims Act, the Foreign Claims Act, and other statutory authority. In 
fiscal year 2010, USARCS oversaw payment of over $8.6 million in claims 
to Iraqi civilians under the Foreign Claims Act, a $31 million decrease 
from the previous year. In fiscal year 2010, USARCS administered the 
payment of over $3.1 million in claims to civilians in Afghanistan 
under the Foreign Claims Act, a significant increase from the previous 
year when less than half this amount was paid. Also during fiscal year 
2010, USARCS paid more than $5 million in household goods claims and 
over $21 million in tort claims. Army claims offices also processed a 
total of $22.4 million in medical care recovery claims in fiscal year 
2010.

                            MILITARY JUSTICE

    Military justice remains our core competency. During fiscal year 
2010, there were 620 trials by general court-martial and 454 trials by 
special court-martial. In addition, there were 667 trials by summary 
court-martial. The number of non-judicial punishments completed during 
fiscal year 2010 was 36,624.

----------------------------------------------------------------------------------------------------------------
                                                                              Fiscal Year
                                                     -----------------------------------------------------------
                                                         2006        2007        2008        2009        2010
----------------------------------------------------------------------------------------------------------------
General Court-Martial (CM)..........................         750         811         674         631         620
Special CM..........................................         583         639         488         523         454
Summary CM..........................................       1,160       1,223       1,279       1,040         667
Total CM............................................       2,493       2,673       2,441       2,194       1,741
CM Rate Per 1,000 Soldiers (Not incl SCM)...........        2.64        2.78        2.16        2.11        1.90
Nonjudicial Punishment (NJP)........................      43,813      45,239      46,063      35,210      36,624
NJP Rate Per 1,000 Soldiers.........................       86.69       86.66       85.60       64.37       64.70
Army Active Duty Strength...........................     505,402     522,017     538,128     547,000     566,045
----------------------------------------------------------------------------------------------------------------

    Although court-martial rates have remained relatively stable in 
recent years, with the exception of Summary Courts-Martial, the 
complexity of cases is increasing. We have invested considerable 
resources in training our Trial Counsel to better prosecute cases 
involving crimes of sexual assault. This has included the appointment 
of 15 Special Victim Prosecutors (SVPs), with an additional 8 SVP 
positions recently approved, and 5 highly qualified experts. While much 
work clearly remains to be done in this area, I firmly believe we are 
now on the right track.
    I am also committed to improving the training of U.S. Army Trial 
Defense Service (TDS) counsel so that our soldiers receive the 
effective representation they deserve. Currently, more than 400 Active 
and Reserve component attorneys serve in TDS worldwide, to include over 
20 in U.S. Central Command deployed to Iraq, Afghanistan and Kuwait and 
over 30 mobilized in support of defense operations worldwide. The 
Defense Counsel Assistance Program plays a centralized role in ensuring 
that defense counsel and paralegals have the necessary skills and 
knowledge base to represent their clients in an effective manner.
    Finally, our appellate docket is carefully managed to ensure the 
timely disposition of courts-martial cases on appeal. The Army Court of 
Criminal Appeals post-trial processing systems and those of the 
Government and Defense Appellate Divisions are adequate to comply with 
the standards contained in the Uniform Code of Military Justice and 
applicable case law.

            CONTRIBUTIONS OF OTHER MEMBERS OF JAG CORPS TEAM

    The success of our legal operations relies heavily on the 
outstanding support of our warrant officers and enlisted paralegals. 
Their selfless dedication and commitment are truly impressive. I would 
also like to highlight the phenomenal work of our civilian attorneys 
and legal paraprofessionals who provide essential continuity and 
subject matter expertise in our home station legal offices.

                               CONCLUSION

    In conclusion, the state of the Army JAG Corps is strong. 
Recruiting and retention are at all-time highs. Diversity is expanding 
as more women and minorities serve as Judge Advocates. Morale remains 
high in spite of the fact that the Army is now entering its 10th year 
at war. Commanders have great confidence in their Judge Advocates and 
value the contributions they make to mission accomplishment. We are a 
flexible and adaptive Corps. I am confident in our ability to meet the 
changing needs and requirements of our Army.
    I would like to thank you again for the opportunity to appear 
before you today and your continued support for the soldiers and 
families of America's Army.

    Senator Webb. Admiral Houck, welcome.

  STATEMENT OF VADM JAMES W. HOUCK, JAGC, USN, JUDGE ADVOCATE 
                    GENERAL OF THE U.S. NAVY

    Admiral Houck. Good afternoon, Mr. Chairman and Senator 
Graham, and thank you both for your interest in holding this 
hearing and your concern for our uniformed legal communities.
    Also thank the members of the 506 panel, Chairman 
Dell'Orto, General Osman, and the other members of the panel 
who dedicated pro bono hundreds of hours to the project, and we 
were very grateful for their support.
    I would like to make three points briefly this afternoon. 
The first one being, I think it is imperative that we get the 
right number of judge advocates in all the Services, but in my 
case, in the Navy JAG Corps. I think there are risks if we 
don't. There is a risk if we have too many. In this climate 
today, I know that our Secretary and our Chief of Naval 
Operations (CNO) and many others are working very hard to 
reconcile a lot of competing demands.
    Having said that, I think there are also risks in having 
too few. I think the risks are relatively obvious, and I won't 
belabor those. I see my job, as precisely and carefully as I 
can, to assess the requirement for judge advocates. Then as 
clearly and, when necessary, as forcefully as I can to 
articulate that requirement to decisionmakers to make sure that 
they are aware of that.
    The second area that I think really bears emphasis is not 
only the number of judge advocates we have, but the things that 
go into making up the health of our community--things like the 
recruiting and retention, things like the resources and time 
that we have to do education and training for our judge 
advocates, and as we in the Department of the Navy and as the 
committee may look at various structures for how we address the 
authorities and alignment for the provision of our legal 
services, that whatever option we adjust, that we make sure 
that we maintain a leadership structure in place that is 
adequate for a law firm the size and scope of our Navy JAG 
Corps.
    I think the last thing I would like to touch on is to the 
imperative that we account for and adjudicate in a timely way 
all our courts-martial cases, from the moment charges are 
brought to the very last day of the last appeal. We are doing 
that in the Department of the Navy today. We are doing that 
through case tracking systems that--I would echo General 
Osman's comments--they are working for us today.
    There are things we can improve in them, but the 
combination of these systems, as well as the focused, hands-on, 
eyes-on leadership at senior levels on these cases is--and to 
respond to your question, Senator, there is a sense of urgency 
to make sure that the debacle which was the Foster case never 
happens again.
    We have also made great progress in the time in which we 
adjudicate cases. There are different metrics to look at this, 
but I think one which is significant is that in 2004, which was 
right before the Court of Appeals for the Armed Forces decided 
the Moreno case, it was taking the Department of the Navy over 
800 days from the time somebody was convicted to the time their 
appeal was finished. Today, that number is just above 300 days, 
and that is against a standard that is close to 700 days--about 
690 days as established by the Court of Appeals for the Armed 
Forces.
    So, from a variety of different ways, we could talk about 
the measurements of it. But the point that I want to make is 
that we take in the Navy, and I take personally as the JAG of 
the Navy, our trusteeship of the military justice system 
seriously and personally, and we are very focused on it.
    I guess by way of final note and to just respond to a 
couple of the questions that you all put to the panel that was 
here, I would note that we are looking very carefully at case 
tracking systems and have learned a lot from a study that was 
done for us by the Center for Naval Analysis. We are in the 
process of looking at options right now, but it is very much a 
priority for us to get a common case tracking system in the 
Department of the Navy. I know the Secretary is committed to 
it, and we are looking at it hard and moving forward on that 
front.
    Our courts-martial rate is obviously the lowest of the 
Services. But I think the Foster case taught us, and I agree 
with Mr. Dell'Orto on this point, that it doesn't matter what 
number of cases that you have, if you don't handle one of them 
properly, and Foster is the best object lesson of that that we 
have seen, it casts a shadow over the entire military justice 
system. So, again, we have taken many steps, which I can 
respond to in the questions, to address this issue.
    Thank you, Mr. Chairman.
    [The prepared statement of Admiral Houck follows:]

          Prepared Statement by VADM James W. Houck, JACG, USN

    Thank you for inviting me to testify before your committee on the 
requirements of the Navy Judge Advocate General's Corps, the status of 
implementation of the recommendations of the Independent Review Panel 
to Study Judge Advocate Requirements of the Department of the Navy 
(``the Panel''), and post-trial review processes within the Department 
of the Navy.
    Over the past decade, the Navy JAG Corps has experienced an 
increased demand for our legal services. I believe this is consistent 
with the aggressive operational tempo of our force as well as an 
overall increased sensitivity to legal concerns. In the face of this 
increasing demand, the Navy must have enough judge advocates to meet 
the complete spectrum of legal missions it faces today. Without 
sufficient judge advocates, commanders run the risk of failing to have 
important legal issues recognized and addressed in a timely manner. 
There is also a risk that analysis will lack rigor and ingenuity 
because existing assets are spread too thin, and, that judge advocates 
will not have sufficient time to continue their education and training.
    Based on the Navy JAG Corps' current missions, and, consistent with 
my testimony before the Panel last September, I believe the Navy 
requires a base force of 821 judge advocates, plus, the judge advocates 
necessary to meet the demands posed by assignments to Individual 
Augmentee (IA) missions and the Office of Military Commissions (OMC). 
Currently, 73 Active component and 31 Reserve component judge advocates 
are assigned to IA and OMC missions.
    Today, there are 866 judge advocates on active duty. This consists 
of 835 Active component judge advocates, plus 31 Reserve component 
judge advocates serving under active duty orders in support of IA and 
OMC assignments. Under the current Navy program, the Navy budgeted for 
801 Active component judge advocates on active duty by the end of the 
fiscal year. This is based upon community endstrength as determined by 
the Chief of Naval Personnel through the budget process.
    The Department of the Navy intends to increase the number of Active 
component JAG Corps billets to 821 across the Future Years Defense 
Program (FYDP). This increase does not require statutory authority, 
only funding. In fiscal year 2011, the Navy's program of record was to 
decrease our JAG Corps officers from 801 to 745 by fiscal year 2016. 
Navy leadership has now indicated an intent to fund, within the Navy's 
baseline budget, an additional 31 JAG Corps billets through fiscal year 
2015 which are currently detailed to the OMC at least through the end 
of fiscal year 2012, and to provide the additional increases necessary 
to fund the 821 JAG Corps officers required to meet baseline 
requirements over the FYDP.
    I realize that essential JAG Corps growth must be weighed against 
other important requirements, especially in the current fiscal 
environment. I believe that 821 is the minimum number of officers 
needed to meet emerging requirements and mitigate legal risk to the 
Navy. We continue to look for internal structure changes that will 
allow us to realign resources to meet demand. In addition, we have also 
begun to train enlisted members of the Legalman rating to obtain 
certification through the American Bar Association as paralegals, which 
will gradually ease the administrative burdens currently levied on JAG 
Corps officers. To address the expanded rights to legal assistance for 
wounded, ill, and injured servicemembers processed through the 
Disability Evaluation System, for fiscal year 2012, we are hiring 
permanent civilian attorneys to ensure sustained legal support and 
assistance to our wounded, ill, and injured sailors. These civilian 
attorneys will be augmented by Reserve judge advocates in fiscal year 
2012, but we are working to fully civilianize the support over the next 
several fiscal years. We are focused on making a smooth transition and 
ensuring compliance with the law and Department of Defense direction.
    The Panel commented that maintaining a strong judge advocate 
community will require continued focus on recruiting; continued support 
for Navy Judge Advocate Continuation Pay (JACP); and continued support 
for post-graduate education. Even in a challenging budget environment, 
Navy leadership has strongly supported all of these important programs.
    The JAG Corps received $70,000 in support from Commander, Navy 
Recruiting Command in fiscal year 2011 and our applications for 
commissions have, since fiscal year 2009, remained at historically high 
levels (over 900 annually). I also note that we ask our judge advocates 
to devote a considerable amount of time to personally participate in 
recruiting activities. Law school administrators--and, more 
importantly--law students, tell me our judge advocates are the best 
representation of our Corps.
    The Chief of Naval Personnel approved funding for JACP at existing 
levels through fiscal year 2012. In addition, the Navy will fund 
postgraduate education for 25 judge advocates in the 2011-2012 academic 
year at the very best law schools in the United States. I testified 
before the Panel that increases in JACP and providing postgraduate 
education opportunity for 30 judge advocates annually would be optimal. 
However, the amount of funding for these programs in fiscal year 2012 
is sufficient to meet our immediate requirements. Especially when 
viewed in the context of potential future Navy budgets, I believe the 
amount that will be funded in fiscal year 2012 represents a strong 
commitment from Navy leadership to maintain a first-rate, mission-ready 
JAG Corps.
    For years, we have stressed the value of obtaining Joint 
Professional Military Education (JPME). In the coming months, I intend 
to formalize JPME guidance through JAG Corps Instruction, placing 
emphasis on and strongly encouraging judge advocates to complete JPME 
Phase I as part of JAG Corps training requirements. Our approach will 
be geared toward meeting the Chairman's learning objectives as well as 
assisting Navy leadership in assessing the desire to formalize judge 
advocate participation in the joint officer management program and 
joint qualification system.
    Our Navy JAG Corps has no more important mission than providing a 
fair, effective, and efficient military justice system for our 
commanders and personnel. Military justice is our statutory mission. We 
are intensely focused on upholding this special trust.
    Within the Department of the Navy, effective court-martial post-
trial processing is being fully achieved at the local level in Navy and 
Marine Corps legal offices, and at the appellate level in the Navy and 
Marine Corps Appellate Review Activity, and the Navy Marine Corps Court 
of Criminal Appeals.
    Improvements over the course of the last several years in post-
trial and appellate case processing have been institutionalized in 
standing. On 25 April 2011, the Secretary of the Navy approved 
Secretary of the Navy Instruction 5430.27D, ``Responsibility of the 
Judge Advocate General of the Navy and the Staff Judge Advocate to the 
Commandant of the Marine Corps for Supervision and Provision of Certain 
Legal Services.'' The instruction formalized the requirement for the 
Judge Advocate General to provide an annual report to the Secretary of 
the Navy, the Chief of Naval Operations and the Commandant of the 
Marine Corps on the state of military justice within the Department of 
the Navy. This directive also institutionalized the Military Justice 
Oversight Council, which we initiated in November 2009. The Council is 
chaired and convened by the Judge Advocate General and co-chaired by 
the Staff Judge Advocate to the Commandant of the Marine Corps. The 
Council meets monthly to evaluate the practice of military justice and 
the effectiveness of the military justice system. The Council monitors 
individual cases through reports about any case at risk to exceed 
processing guidelines promulgated by the Court of Appeals of the Armed 
Forces (CAAF). Likewise, we have reinforced this process with a series 
of uniform policies and standards to ensure consistency across the 
force.
    Given the improvements in structure, operating procedures, case 
tracking and oversight, I am confident we have a military justice 
process that works as intended. The Navy and Marine Corps now 
consistently process cases within the CAAF guideline of 150 days from 
sentencing to docketing at Navy-Marine Corps Court of Criminal Appeals. 
Those few cases that have not met that guideline are individually 
tracked and the reasons for delay are documented for consideration by 
the appellate courts. At the Navy-Marine Corps Court of Criminal 
Appeals, no case in fiscal year 2010 exceeded the 18-month appellate 
processing timeline from docketing to decision by that court, and none 
of the cases decided or docketed and pending review in this fiscal year 
exceed that time.
    As a result of the actions we have taken over the past several 
years, I am confident we know the status of all Active Navy and Marine 
Corps court-martial cases in the trial and post-trial process. We are 
successfully tracking all our cases.
    The Navy monitors its post-trial process at the local level through 
the Case Management Tracking Information System (CMTIS). The Marine 
Corps tracks post-trial processing of courts-martial using the Case 
Management System (CMS). The processing of appeals is a departmental 
mission. Both Navy and Marine Corps cases pending appellate review are 
monitored with CMTIS, which tracks each case throughout the appellate 
process, from docketing to final disposition. The overlap of CMTIS and 
CMS provides the department with visibility over all courts-martial 
cases from sentencing to appellate decision, but it is not optimal in 
that these systems do not provide a consolidated view of the status of 
all cases pending within the department.
    The Secretary of the Navy has committed to development of a unified 
case-tracking system for the Navy and Marine Corps. A joint effort is 
currently underway to formally establish a new acquisition program in 
the departmental budget process for a common case-tracking system. On 4 
November 2010, the Assistant Secretary of the Navy (Research, 
Development and Acquisitions) (ASN (RDA)) assigned the Program 
Executive Office for Enterprise Information Systems (PEO EIS) the 
program management and acquisition responsibility for development of a 
web-based information system that includes a single case tracking 
system. ASN (RDA) directed PEO EIS to work with stakeholders within the 
Department of the Navy to validate system requirements; establish roles 
and responsibilities; develop an acquisition timeline and activities; 
conduct market research in support of Business Case Analysis approach; 
and prepare the required acquisition documentation in support of the 
POM 13 budget cycle. I look forward to working with the Marine Corps 
and other stakeholders to achieve the Secretary's goal.
    In summary, we need to ensure sufficient numbers and quality of our 
judge advocates so that we are able to fulfill all our missions 
effectively and efficiently. In particular, we remain steadfastly 
committed to ensuring that our military justice system operates to the 
highest standards. I thank the committee for its continued interest in 
the legal practice within the Department of the Navy, your support of 
our men and women in uniform, and I look forward to taking your 
questions.

    Senator Webb. Thank you, Admiral Houck, and your bold 
statement will be entered into the record at this point.
    General Harding, welcome.

  STATEMENT OF LT. GEN. RICHARD C. HARDING, JAGC, USAF, JUDGE 
             ADVOCATE GENERAL OF THE U.S. AIR FORCE

    General Harding. Thank you, Mr. Chairman.
    Mr. Chairman, members of the subcommittee, thank you for 
the opportunity of testifying this afternoon.
    I am very proud to lead the Air Force JAG's Corps with over 
4,000 outstanding judge advocate, civilian attorney, enlisted 
and civilian paralegals, and civilian support staff. Our 
mission is to deliver professional, candid, and independent 
counsel and full-spectrum legal capabilities to the command and 
commanders and to the warfighter.
    The committee's invitation to testify today asked that I 
offer my opinion on the effect of the recent organizational 
changes eliminating judge advocate brigadier general officer, 
or 0-7, billets in the Air Force. Therefore, I will offer my 
personal opinion regarding the 14 March 2011 the Office of the 
Secretary of Defense-directed elimination of three of our four 
Air Force JAG 0-7 positions.
    My opinion is identical to that of my Service's chief of 
staff. We both believe that the three 0-7 positions in question 
should be held by officers at the grade of brigadier general.
    These three general officers support at a corporate 
leadership level three centers of gravity for our Air Force--
first, the Air Force's logistics and maintenance complex; 
second, its combat air forces; and third, its mobility air 
forces. The three general officer positions are staff judge 
advocates for Air Force Materiel Command, Air Combat Command, 
and Air Mobility Command. Their job descriptions are contained 
in my statement, which was previously submitted to the 
committee.
    These three 0-7s provide more than just routine 
administrative legal advice to their major command commanders. 
They provide corporate legal advice on weighty issues facing 
the Air Force in the three centers of gravity I mentioned 
earlier.
    Their advice shapes strategy and planning at very high 
levels in the Air Force. They sit on their commanders' senior 
staffs, joining between 8 and 11 other general officers and 
civilian equivalents, depending on the major command, in 
corporate leadership settings. Their 0-7 rank assures they have 
a seat at the table during sensitive important deliberations of 
their commanders' senior staff.
    Additionally, the three 0-7 positions provide professional 
supervision to over 1,500 JAG Corps personnel, delivering legal 
services to 300,000 total force personnel assigned to those 
three Air Force centers of gravity.
    The effect of the general officer cuts on the Air Force is 
significant. Career progression opportunities in the Air Force 
JAG's Corps has been significantly degraded by the elimination 
of these three 0-7 billets. As a direct consequence, the cuts 
will increase attrition among our best retirement-eligible 
colonels on whom we must rely to lead significant field legal 
operations.
    As a result of the elimination of these three 0-7 billets, 
Air Force JAG colonels have noted that their chances of making 
0-7 have been reduced by 75 percent, leaving behind a single 0-
7 position to be selected every 4 years as the JAG's and the 
Deputy JAG's statutory tours end. The incumbent brigadier 
general is likely selected for promotion, resulting in a single 
brigadier general vacancy.
    If not selected for the single 0-7 billet, rather than wait 
another 4 years for another opportunity to compete for 
promotion, many of our best JAG colonels will elect to retire, 
leaving the Air Force without the legal leadership it needs 
and, frankly, deserves.
    By having only a single brigadier general position 
remaining in the Air Force JAG Corps, the incumbent in the 
remaining 0-7 billet essentially becomes the TJAG in waiting, 
the heir apparent. Optimal force models are structured like a 
pyramid. They provide competition----
    Senator Webb. General Harding?
    General Harding. Yes, sir?
    Senator Webb. No offense, but let the record show that you 
personally don't like this new policy. Do you have any sort of 
official presentation to give us?
    General Harding. The official presentation was offered in 
my statement earlier, sir.
    Senator Webb. All right. Thank you very much.
    Your official statement will be entered into the record.
    [The prepared statement of General Harding follows:]

     Prepared Statement by Lt. Gen. Richard C. Harding, JAGC, USAF

    I have served as the Air Force's 16th Judge Advocate General since 
23 February 2010. I am pleased to report to you today that the state of 
the Air Force JAG Corps is strong. This past year has been one of the 
most rewarding of my career as I have watched our Corps flourish in the 
execution of our mission for the Air Force.
    The Air Force JAG Corps is currently comprised of 4,390 total force 
personnel. Of this total, 3,126 are either active duty personnel or 
full-time civilian personnel. The remaining 1,264 are judge advocate 
and paralegal members of the Air Force Reserve and Air National Guard.
    The Air Force JAG Corps' mission is to deliver professional, 
candid, independent counsel and full spectrum legal capabilities to Air 
Force and joint commanders and their staffs. Members of the Air Force 
JAG Corps are involved in the full range of operations from peacetime, 
through war, to stabilization and reconstruction efforts. Our varied 
fields of practice demand that we apply the Air Force's traditional 
ability to adapt quickly to changing requirements. Our fields of 
practice include military justice, contract law, environmental law, 
labor law, Federal administrative law, defense of tort and other civil 
suits against the Air Force, legal assistance for airmen and their 
families, international law, and operations law to include the law of 
air, space and cyberspace.
    Today's uncertain international security and evolving legal 
environment requires the Air Force JAG Corps adopt a balance-driven 
approach. We must overcome today's challenges while simultaneously 
preparing for tomorrow's. At present, Air Force judge advocates and 
paralegals are deployed all over the world in support of combatant 
commanders' requirements. We provide timely, responsive, and thorough 
legal advice to Air Force commanders and their airmen whether in 
austere conditions half a world away or at their home stations.
    The Air Force is organized into functional major commands (MAJCOMs) 
led by 0-10 commanders. MAJCOM Staff Judge Advocates (SJAs) serve as 
the most senior, ranking attorney on a MAJCOM Commander's staff. They 
advise on a myriad of legal issues that face the MAJCOM Commander and 
his staff. MAJCOM SJAs are some of our most seasoned legal 
professionals, each possessing 20+ years of JAG experience. Three of 
our four Air Force JAG 0-7s (brigadier general) serve as SJAs in three 
of the Air Force's most vital MAJCOMs: Air Combat Command (our 
functional lead command for combat air forces), Air Mobility Command 
(our functional lead command for mobility air forces) and Air Force 
Materiel Command (our functional lead command for procurement of major 
weapons systems, logistics, and sustainment). These SJAs provide 
valuable legal advice on the most complex legal issues facing the Air 
Force today:
    The ACC SJA advises the ACC Commander, who serves as the combat air 
forces lead agent for all combat forces across the Air Force. Those 
forces are engaged in on-going combat operations; The SJA provides 
counsel on such matters as the law of armed conflict, international 
agreements, disciplinary matters, contract law, environmental law, 
civilian personnel law, and any other legal issue confronting this 
vital command, all while providing professional supervision to over 600 
JAG Corps personnel, who deliver legal services to over 133,000 
personnel assigned to ACC.
    The AMC SJA advises the AMC Commander on joint operational and 
policy matters such as command responsibilities for developing and 
maintaining a national industrial mobilization base for airlift and 
aerial refueling. The AMC SJA also serves as legal advisor to the 
general officer level Commercial Airlift Review Board, which by statute 
is charged with safety oversight and DOD certification of over 150 U.S. 
and foreign carriers under contract with the Department of Defense. In 
addition, the AMC SJA provides professional supervision to over 465 JAG 
Corps personnel, who deliver legal services to over 135,000 personnel 
assigned to AMC.
    The AFMC SJA serves as legal advisor to the AFMC Commander and 
provides legal oversight in the Air Force acquisition process for major 
weapons system procurement, sustainment, and research. It is vitally 
important that the Air Force maintain the highest scrutiny over our 
acquisition processes and programs including international systems 
acquisitions. The AFMC SJA is responsible for providing legal advice on 
the expenditure of enormous financial resources and assists in the 
prevention of fraud, waste, and abuse of resources. In addition, the 
AFMC SJA provides professional supervision to over 448 JAG Corps 
personnel, who deliver legal services to over 75,000 personnel assigned 
to AFMC.
    The fourth Air Force JAG 0-7 is the Commander of the Air Force 
Legal Operations Agency (AFLOA), a worldwide field operating agency. 
AFLOA is comprised of over 800 total force JAG Corps personnel. 
Accordingly, AFLOA is the parent command for approximately 24 percent 
of our worldwide JAG Corps personnel and is responsible for supervising 
the administration of military justice senior trial counsel 
(prosecutors), defense counsel, and appellate counsel; 11 field support 
centers; civil litigation counsel; the Air Force JAG School; and the 
Air Force Legal Information Services Directorate.
    The other seven MAJCOM SJAs are senior JAG colonels. Those MAJCOMs 
are Air Education and Training Command; Air Force Global Strike 
Command, Air Force Reserve Command, Air Force Space Command, Air Force 
Special Operations Command, Pacific Air Forces, and U.S. Air Forces in 
Europe.
    In closing, I would like to emphasize that our Nation has achieved 
much success in international armed conflict because we bring four 
crucial elements to every conflict. First, we recruit some of our best 
citizens into our Armed Forces. Second, we give them the best military 
training available anywhere on the planet. Third, we provide them the 
best available equipment to win in war. But those are only three legs 
of a four-legged table. Without the fourth leg, the table wobbles and 
falls. The fourth leg is discipline. Without discipline, great people, 
great training, and great equipment are not enough to win in war. 
Military discipline is an indispensible element for any effective 
fighting force. As the stewards of the Uniform Code of Military 
Justice, whose purpose is to protect and enhance good order and 
discipline, judge advocates the servicemembers, their training and 
their equipment together with military discipline. The Air Force JAG 
Corps and the JAG Corps of our fellow Services safeguard good order and 
discipline in the U.S. Armed Forces, take care of the legal needs of 
airmen, soldiers, sailors, and marines, and ensure that our Services 
carry the rule of law with them wherever they deploy. In that very real 
sense, we are combat force multipliers, upon whom the Nation's success 
in armed conflict relies.
    Thank you for the opportunity to appear before you today.

    Senator Webb. General Ary, welcome.

    STATEMENT OF MAJ. GEN. VAUGHN A. ARY, USMC, STAFF JUDGE 
         ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS

    General Ary. Good afternoon, Mr. Chairman, Senator Graham, 
and distinguished members of the subcommittee.
    Thank you for the invitation to testify this afternoon. I 
am happy to be here representing our corps and the over 1,400 
remarkable men and women who make up our Active, Reserve, and 
civilian Marine legal community.
    In the summer of 2009, Congress expressed serious concerns 
about the Navy-Marine Corps legal community, directed the DOD 
IG to evaluate our post-trial processes and procedures, and 
directed the convening of the independent panel, the 506 panel.
    The Marine Corps interpreted your concerns as a call to 
action. We immediately began a hard, honest assessment of our 
legal community, who we are, how we lead and are organized, and 
how we deliver legal services to commanders, marines, sailors, 
and families.
    Our assessment validated that the most effective legal 
model for our corps relies on marine judge advocates and legal 
service specialists who are marines first, fully integrated 
into the marine ethos and culture. Our basic model for the 
provision of legal support is strong, but we identified 
challenges that needed to be addressed.
    We continue to believe in a command-driven system, but 
recognized that complete decentralization poses unacceptable 
risk. To reduce that risk, we need unified direction for our 
practice, striking a balance between uniformity of policies and 
procedures and decentralized execution. We have chosen to 
emphasize efficiency, with a focus on institutional processes 
and supervision that will produce enduring results.
    To accomplish this, we also needed to adapt our 
organizational leadership model. We accepted responsibility for 
what the DOD IG found to be ``failures in leadership, 
supervision, and oversight at all organizational levels.''
    For the Marine Corps, the Staff Judge Advocates (SJA) to 
Commandant, U.S. Marine Corps (CMC) could no longer act simply 
as a staff judge advocate to a Service Chief. The billet had to 
take on a greater role leading the Marine legal community.
    As part of assuming that role, my office published a 
strategic action plan in July 2010, setting a course to elevate 
the practice of law throughout the Marine Corps. We set five 
strategic goals: set standards, train to those standards, 
inspect to those standards, examine and adapt the force to 
achieve those standards, and memorialize what we have learned 
in doctrine.
    Our goals were designed to achieve our essential mandate--
to provide quality legal services to every commander, marine, 
sailor, and family member and, in particular, to ensure that 
every marine who enters our military justice system receives 
the due process to which they are entitled.
    Over the past 18 months, the Marine Corps has implemented a 
number of initiatives that are designed to accomplish these 
five goals. There are four that best illustrate our direction: 
our case management system, an enhanced inspection program, a 
military justice counsel assistance program, and doctrine 
development.
    We first set out to guarantee accountability for each 
military justice case. We developed a case management system 
over the course of 6 months, at a cost of roughly $60,000. We 
implemented it Marine Corps wide in February 2010.
    Our case management system provides a secure, Web-based, 
real-time case tracking database that has produced immediate 
results by providing a common operating picture, with complete 
visibility over every case at every stage of the service level 
process and by eliminating gaps previously caused by a variety 
of incompatible systems.
    To enhance transparency and accountability, we created a 
more robust inspections regime. We developed more exacting 
Article 6 inspection requirements, and for the first time, we 
instituted a legal office inspection program into the 
Commanding General's Inspection Program (CGIP).
    The CGIP inspections, conducted by subject matter experts, 
provide commanders and their staff judge advocates metrics by 
which to gauge the performance of their legal organizations. By 
the end of this year, I will have personally inspected almost 
every Marine legal office worldwide.
    We focused another initiative on strengthening our courts-
martial practice in our primary statutory mission. Declining 
numbers of special courts-martial and competing operational 
demands have degraded this core competency as the complexity of 
the cases we are trying continues to increase.
    Our chief defense counsel responded to this trend by 
leveraging technology to establish a worldwide virtual law firm 
and create a community of practice that has elevated the 
defense organization.
    On the prosecution side, we followed suit, and by using the 
Army's TCAP as a guide, we stood up a Trial Counsel Assistance 
Program. Our TCAP provides training and resources to assist 
Marine prosecutors using a number of tools, including onsite 
training, video teleconferencing, and a SharePoint litigation 
support Web site.
    Lastly, to ensure that we institutionalize the lessons 
learned and best practices in all legal services areas, we 
began the process of updating our doctrine for the provision of 
legal services in the Marine Corps. Concurrent with our 
assessment of legal services, we continued to assess our 
manpower requirements, including realigning and increasing 
structure and shaping and increasing inventory.
    The independent panel recommended a target total Active 
component inventory of 550 judge advocates. That includes both 
certified judge advocates and our student judge advocates.
    Today, our total Active component inventory of certified 
and student judge advocates exceeds the panel's recommended 
target and includes 508 certified judge advocates, the largest 
number we have ever had.
    We have taken the initiative within the Service to address 
deficiencies that required immediate attention. If these and 
other initiatives are to endure, I believe there must be 
institutional reform.
    In the future, it should be clear who is accountable for 
supervising the provision of legal support in the U.S. Marine 
Corps, and the accountable officer should be the SJA to CMC. 
This billet must be clearly assigned responsibility and 
authority for supervising the service legal mission.
    In closing, I would say that the future of our Marine legal 
community is bright. The current generation of judge advocates 
and legal service specialists is uniformly better qualified 
than we were a generation ago.
    I believe we owe it to them to maintain a professional 
legal community dedicated to meeting the high standards of our 
corps with strong, enduring mechanisms for responsibility and 
accountability. Moreover, we owe our commanders and marines the 
best possible advice, representation, and legal services.
    Based on the direction we are taking, I am firmly convinced 
that we are positioning ourselves to best serve the Marine 
Corps, the Department of the Navy, and DOD.
    I have submitted a more detailed statement for the record, 
and I look forward to any questions that you might have.
    Senator Webb. Thank you very much, General. Your full 
written statement will be entered into the record at this 
point.
    [The prepared statement of General Ary follows:]

                           EXECUTIVE SUMMARY

A Call to Action
    In August 2009, Congress's direction to convene an Independent 
Panel to Review Judge Advocate Requirements in the Department of the 
Navy (``506 Panel'') and a contemporaneous Department of Defense (DOD) 
Inspector General's (IG) inquiry served as a clear call to action for 
the Marine Corps. In response, we conducted a comprehensive study of 
the provision of legal support within the Service, leading to several 
overarching conclusions.
    First, the Marine Corps needs command-oriented, organic legal 
support, provided by Marine judge advocates, who are integrated, 
unrestricted Marine Air-Ground Task Force officers. As uniformed legal 
support requirements are command-driven, and execution is command-
oriented, there is an inherent, intangible benefit to having a legal 
organization of Marines providing legal support that is responsive to 
the Service's unique history, leadership philosophy, and operational 
characteristics. Second, over the past two decades our legal mission 
has evolved in scope, intensity, and complexity. Legacy structure and 
doctrine, a philosophy of maximum decentralization, and a limited role 
for the Staff Judge Advocates (SJA) to Commandant, U.S. Marine Corps 
(CMC) have limited our ability to adapt and respond to evolving 
requirements. Third, to meet the challenges of a more complex, future 
legal environment, we need to develop higher levels of individual 
proficiency and organizational efficiency, which in turn requires a 
greater degree of supervision, centralization and uniformity.
    The conclusions of our assessment are captured in our July 2010 
Strategic Action Plan, which establishes a series of initiatives to 
accomplish five overarching goals: (1) set standards, (2) train to 
those standards, (3) inspect to those standards, (4) examine and adapt 
the force to achieve those standards, and (5) memorialize what we have 
learned in doctrine.

                          THE 506 PANEL REPORT

    The conclusions in the 506 Panel's report of 22 February 2011 are 
largely consistent with our own determinations. To the extent the Panel 
recommended action at the Service level, the recommended reforms are 
underway in the Marine Corps. Implementation of the remaining 
recommendations require Departmental action.

Manpower Requirements
    The 506 Panel concluded that ``[t]he Marine Corps' programmed 
target inventory of approximately 550 judge advocates over the next 5 
years will be sufficient to fulfill the legal requirements of the 
Marine Corps, as well as to preserve the ability of Marine judge 
advocates to serve in non-legal billets, maintaining their role as 
well-rounded Marine Air-Ground Task Force officers and contributing to 
the broader Marine Corps mission.''

JAG Authority over USMC Manpower Policies and Assignments
    The Marine Corps concurs with the 506 Panel's recommendation 
against providing additional authority for the JAG over manpower 
policies and assignments of judge advocates in the Marine Corps.

Court-Martial Case Tracking System
    The DOD IG and the 506 Panel each concluded that the DoN should 
employ a single case tracking system that can track cases from the 
preferral of charges or imposition of pretrial restraint through 
appellate review. The Marine Corps currently has a single, Service-wide 
case tracking system that effectively accomplishes its singular goal--
to protect the due process rights of every accused Marine through 
accurate and reliable case tracking. Although currently limited to 
Marine Corps cases (75 percent of DON total), the Marine Corps Case 
Management System (CMS) could be adapted to track all DON cases through 
completion of appellate review. CMS was developed in 6 months and 
implemented at a total cost of $60,000. Its use was mandated Service-
wide on 1 February 2010 CMS effectively and efficiently accomplishes 
the purpose for which it was designed. Since implementation, the 
average processing time for Marine Corps cases from date of sentencing 
to receipt of the record of trial by the appellate court has gone from 
119 days to 87 days, and the number of cases in the post-trial process 
that exceeded 120 days from the completion of trial to convening 
authority's action has dropped from 41 cases in February 2010 to less 
than a handful today.

Military Justice Oversight
    The Secretary of the Navy signed SECNAVINST 5430.27D on 25 April 
2011 institutionalizing the annual military justice report requirement 
and the Military Justice Oversight Council, consistent with the 506 
Panel's recommendation.

Requirements for Complex Cases
    The Marine Corps stood up the Trial Counsel Assistance Program 
(TCAP) in May 2010, and has since sponsored three regional TCAP 
Training Conferences. Since fiscal year 2010, the SJA to CMC has 
sponsored an annual Victim-Witness Assistance Program (VWAP) Training 
Conference, attended by VWAP representatives from every Marine Corps 
base. JAD is actively involved in developing policy and advising and 
training judge advocates with respect to the prevention of and response 
to allegations of sexual assault.

Operational Law Requirements
    The 506 Panel concluded that operational law requirements can be 
expected to double over the next decade, and recommended that the 
Marine Corps consider measures to expand opportunities for senior 
Marine judge advocates to compete for senior legal positions within the 
joint community. The SJA to CMC is proposing measures within the Marine 
Corps to enhance the joint experience base and, thus, create greater 
opportunities for senior Marine judge advocates to compete for senior-
level joint billets.
Support to the Office of Military Commissions
    The Deputy Secretary of Defense directed the extension of Office of 
Military Commissions (OMC) manning requirements through the end of 
fiscal year 2015. By September 2011, there will be 13 Active and 
Reserve Marine Corps judge advocates at the OMC, including one of our 
most experienced colonels who is serving as the Chief Defense Counsel 
for OMC.

Support to the Disability Evaluation System
    The Marine Corps has mobilized eight Reserve component Marine judge 
advocates to support Disability Evaluation System (DES). In conjunction 
with Navy JAG, we are currently examining a long-term plan for 
providing DES support. The Navy JAG anticipates hiring civilian 
Informal Physical Evaluation Board attorneys. Additionally, the SJA to 
CMC is proposing the addition of five permanent structured billets at 
wounded warrior regiments.

Clarifying and Strengthening the Role of the SJA to CMC
    The 506 Panel recommended providing the SJA to CMC ``authority to 
supervise the administration of military justice and the delivery of 
legal assistance services within the Marine Corps''; providing the SJA 
to CMC ``authority to exercise professional and technical supervision 
over all Marine judge advocates''; and establishing a ``direct 
relationship between the SJA to CMC and the SECNAV.''
    The 506 Panel concluded that these measures ``will improve the 
delivery of legal services within the Marine Corps, and in particular 
post-trial processing at the Service level, by institutionalizing clear 
lines of authority and accountability.'' The 506 Panel recommended a 
dual statutory and regulatory approach, noting that ``legislation would 
provide the more enduring, institutional basis for clarifying and 
strengthening the role of the SJA to CMC.''
    The challenges in accomplishing the DON's legal mission are about 
far more than the number of judge advocates. The greatest obstacles are 
decades-old systemic lack of Service-level leadership and supervision, 
as well as deficiencies in Departmental oversight, which stem from gaps 
inherent in the DON's unique uniformed legal organization.
    By positioning the respective Judge Advocate Generals (JAGs) within 
the Service military staffs, Congress provided the Army and Air Force 
with Service-level legal leadership positions with commensurate 
supervision authority and accountability. Congress simultaneously 
provided for a direct relationship between the Service JAGs and the 
Department Secretaries. The dual-Service DON does not readily lend 
itself to the efficient construction of the Army and Air Force. A 
single JAG was placed at the Department level, presumably to provide 
for efficiency and integration. To this end, Congress legislated that 
the DON JAG and DJAG would be selected from officers of both the Navy 
and Marine Corps, and provided for two AJAGs--one Navy, one Marine 
Corps. While this statutory construct accounted for the requirement for 
Departmental oversight, it did not provide for the requisite Service-
level leadership position and authorities.
    As recommended by the DOD IG and the 506 Panel, and as articulated 
by the Secretary of the Navy, strengthening and clarifying the role of 
the SJA to CMC will provide this requisite Service-level leadership.

Assistant Judge Advocate Generals
    The 506 Panel recommended that two of the Department's four 
Assistant Judge Advocate General (AJAG) positions be filled by marines 
and two be filled by the U.S. Navy. We have recommended that the AJAG 
billets be re-examined, and in the interim, the existing regulatory 
AJAG billets be filled in a manner that ensures departmental balance 
and integration.
                                 ______
                                 
          Prepared Statement by Maj. Gen. Vaughn A. Ary, USMC

                              INTRODUCTION

    Thank you for the opportunity to speak with you today about the 
requirements for your Marine Corps' uniformed legal mission. I would 
like to first take this opportunity to recognize the many men and women 
wearing the eagle, globe, and anchor today performing that mission. 
Currently we have 508 active duty Marine judge advocates serving around 
the globe; the largest number we have ever had. In addition, there are 
19 legal administration officers and 542 enlisted legal services 
specialists in the Active component, and another 328 Marine judge 
advocates and 167 enlisted legal services specialists in the Reserve 
component. They have responded to the increased demand for legal 
services across the spectrum of traditional and nontraditional legal 
missions. We are extremely proud of the job they are doing for our 
Corps and our Nation.
    We believe in command-oriented, organic legal support, provided by 
Marine judge advocates, who are integrated, unrestricted Marine Air 
Ground Task Force (MAGTF) officers. There is an inherent, intangible 
benefit of providing legal support that is responsive to the Service's 
unique history, leadership philosophy, and operational characteristics. 
These strengths are indispensible to our continued success.
    We recognize, however, that some characteristics of our model 
(e.g., legacy organizational structures and legal services doctrine, a 
philosophy of maximum decentralization, and a limited role for the 
Staff Judge Advocate to the Commandant) have limited our ability to 
respond to the evolving requirements of our legal mission. Over the 
past 20 years, and more acutely in this past decade of war, our legal 
mission has evolved in scope, intensity, and complexity. If we are to 
effectively address challenges associated with increased courts-martial 
complexity, post-trial processing of courts-martial, and sustained 
levels of deployments, we need higher levels of individual proficiency 
and organizational efficiency, which in turn require a greater degree 
of supervision, centralization and uniformity.

                            A CALL TO ACTION

    In August 2009, Congress directed the convening of the Independent 
Panel to Review Judge Advocate Requirements in the Department of the 
Navy (hereinafter ``506 Panel'') and a contemporaneous Department of 
Defense (DOD) Inspector General's (IG) inquiry. These Congressional 
directives were the result of appellate court decisions addressing 
delays in post-trial processing. In directing these inquiries, Congress 
expressed a concern that:

        . . . cognizant legal authorities in the Department of the Navy 
        have not taken necessary and appropriate steps to ensure that 
        the resources, command attention, and necessary supervision 
        have been devoted to the task of ensuring that the Navy and 
        Marine Corps post-trial military justice system functions 
        properly in all cases.

    These congressional directives served as a clear call to action for 
the senior leadership within Headquarters, Marine Corps. I want to 
assure this subcommittee that the Commandant and the rest of the senior 
leadership in our Corps have heard this call, and have moved forward 
with genuine resolve to address the challenges you have identified.
    In late 2009, the Marine Corps began addressing these challenges by 
conducting a comprehensive study of the provision of legal support 
within the Service (e.g., training, organization, leadership, 
authorities, et cetera). Our study led us to two overarching 
conclusions.
    First, we concluded that aspects of our historical approach to 
providing legal support, including a philosophy of maximum 
decentralization and a limited role for the Staff Judge Advocate (SJA) 
to the Commandant, U.S. Marine Corps (CMC), had created gaps in our 
practice and degraded unity of effort. Over time, outdated doctrine, a 
lack of policy and procedural guidance, and limited professional 
supervision had rendered performance standards unclear or unenforced. 
Simply stated, we did not have the accountability to ensure proficiency 
in our core legal competencies.
    Second, we concluded that to meet the ever-increasing scope, 
intensity, and complexity of the legal mission, the philosophy of 
maximum decentralization had to evolve, in a reasonable and balanced 
way, to greater supervision and uniformity in policies, practices, and 
processes. In a word, we needed to establish relevant common standards 
of practice, ensure all of our marines were trained and equipped to 
those standards, and then inspect and enforce those common standards. 
This would ensure:

         effective professional supervision,
         transparency and accountability,
         unity of effort,
         training efficiencies, and
         proper apportionment of resources.

    We remained acutely aware that uniformed legal support requirements 
are largely command-driven, and execution is largely command-oriented. 
Therefore, centralized solutions must remain responsive and relevant to 
the particular needs of the individual commands, and should reflect the 
history, leadership philosophy, and operational characteristics of the 
Service. Accordingly, the Marine Corps determined that any such 
solutions require supervision by a Service-level senior officer who is 
best positioned to provide efficient and responsive leadership, has 
authority commensurate with his responsibility, and who can be held 
accountable for the performance of the legal mission.
    Thus, while proceeding to address the deficiencies in our approach 
to the supervision of the administration of military justice and the 
delivery of legal services, we decided to seek specific responsibility 
and authority for the SJA to CMC for those functions. We recognized 
that this would dictate changes in the Department of the Navy's (DON) 
unique legal organization, which invests the specific responsibility 
and authorities for supervising the legal mission in a single 
Department-level Judge Advocate General (JAG), rather than in a 
Service-level officer as in the Army and the Air Force. While seeking 
this responsibility and authority, we stepped out, relying on de facto 
responsibility.
    The conclusions of our study, and our way ahead, are captured in 
our Strategic Action Plan (SAP) 2010-2015. Published in July 2010, the 
SAP establishes five overarching goals, and describes specific Service-
wide initiatives intended to implement these goals. Although they are 
addressed more robustly in the SAP report itself, the goals can be 
distilled down to the following five principles:

    (1)  set standards,
    (2)  train to those standards,
    (3)  inspect to those standards,
    (4)  examine and adapt the force to achieve those standards, and
    (5)  memorialize what we have learned in doctrine.

    Over the past year, we have focused on addressing those goals and 
creating new initiatives. We continue to use these five principles to 
ensure that we are directing our resources and energy precisely to the 
requirements identified in the SAP.

                    THE DOD IG AND 506 PANEL REPORTS

    The findings, conclusions, and recommendations in the DOD IG Report 
of 10 December 2010 and the 506 Panel Report of 22 February 2011 were 
largely consistent with our own determinations. These reports tended to 
validate that the Marine Corps was moving in the right direction with 
appropriate alacrity.
    The DOD IG report, released in December 2010, found:

          There have been consistent failures in leadership, 
        supervision and oversight at all organizational levels, 
        impacting military justice in both the Navy and Marine Corps. 
        The failures resulted in inadequate institutional vigilance to 
        ensure process health and, in many instances, failures to 
        exercise the diligence and competence required of legal 
        professionals. Serious post-trial processing problems persisted 
        for at least the last two decades.

    The 506 Panel's final report included over forty separate 
conclusions and recommendations. Addressing its primary statutory 
mandate--manpower requirements--the Panel favorably noted the Marine 
Corps' efforts to increase judge advocate structure and inventory. The 
Panel opined that the Marine Corps' bottom-up, top-down, requirements-
driven manpower determinations were realistic and useful, and agreed 
that a target inventory of 550 judge advocates over the next 5 years 
was sufficient.
    Moving beyond manpower requirements, the 506 Panel found it 
necessary to focus primarily on senior-level leadership, authority, and 
oversight within the DON`s uniformed legal communities. Notably, the 
506 Panel echoed findings contained in the DOD IG Report, opining that:

        . . . the challenge presented to the leaders of the Navy and 
        Marine judge advocate communities, with respect to their core 
        military justice function, has as much to do with ensuring 
        engaged leadership and effective oversight as it does with 
        numbers of judge advocates.

    The 506 Panel's conclusions and recommendations also addressed 
operational law support, support to the Disability Evaluation System 
and the Office of Military Commissions, community health, and the 
assignment of Marine judge advocates to non-legal billets.
    To the extent the 506 Panel recommended action at the Service 
level, the recommended reforms are underway in the Marine Corps. These 
include a deliberate and responsible realignment and increase in judge 
advocate force structure and inventory, the institution of a cost-
effective, rapidly-fielded, and proven case tracking system, and the 
establishment of a Corps-wide inspection standard for the delivery of 
legal services. These and other Service-level initiatives are discussed 
in greater detail below. Implementation of the remaining 
recommendations, the most important of which would address the lack of 
Service-level supervision and accountability, would require 
departmental action, including legislative proposals and implementing 
regulations. Increased personnel inventories and focused initiatives 
are partial, often temporary solutions. Enduring solutions require an 
institutional mechanism for holding leaders accountable for the 
mission.
    Below I will discuss the major areas of concern from both the DOD 
IG report and the 506 Panel's report, and how the Marine Corps is 
seeking to address them.

Military Justice Requirements
    Court-Martial Case Tracking System
    The DOD IG recommended that ``the Department of the Navy develop 
and field a single Navy and Marine Corps military justice case 
processing and tracking system that satisfies user requirements and 
achieves system-wide visibility over the entire court-martial process, 
including capability for an accused to monitor his/her appellate case 
status directly through web access.''
    The 506 Panel noted recent significant improvements in post-trial 
processing of courts-martial within the DON, and concluded that for 
such improvements to continue ``it is critical that the DON employ a 
single case tracking system.'' The requirement for any system, as 
identified by the 506 Panel, is to ``track cases from the preferral of 
charges or imposition of pretrial restraint at the Service level 
through the appellate review at the Department level.''
    The Marine Corps currently has a single, Service-wide case tracking 
system that effectively accomplishes its primary goal: to achieve 
complete and expeditious processing of every Marine Corps case from a 
command's Request for Legal Services to arrival at the appellate courts 
in order to ensure the due process rights of each and every Marine. 
Although limited to those cases referred to courts-martial by Marine 
Corps commands, those cases represent 75 percent of all courts-martial 
processed by the Navy and Marine Corps Trial Judiciary in fiscal year 
2010. The Marine Corps Case Management System (CMS) could be adapted to 
track the remaining 25 percent of cases originating within the U.S. 
Navy, as well as tracking all cases through completion of appellate 
review at little cost and without significant delay.
    Development. Conceptually, a single DON-wide case tracking system 
is an attractive goal. As yet, a single system has not been fielded or 
developed. Recognizing the urgency identified by the appellate courts, 
and that the Marine Corps' then existing methodology for courts-martial 
tracking was inadequate, the SJA to CMC began identifying the 
requirements for an effective case tracking and management system 
within the Marine Corps in the summer of 2009.\1\ With the singular 
goal of ensuring the due process rights of every accused Marine through 
accurate and reliable case tracking, SJA to CMC sought a case 
management system that would:
---------------------------------------------------------------------------
    \1\ To minimize the demands on the case management system, SJA to 
CMC chose to use SharePoint for the Marine legal community's knowledge 
management platform, simplifying the evaluation criteria for potential 
case management systems.

         provide a cradle-to-grave common operating picture for 
        military justice practitioners and supervisors to manage and 
        oversee case processing at all levels of the Marine Corps;
         provide easy, non-redundant data entry, retrieval, and 
        report generation capability for military justice clerks;
         generate multiple views and reports;
         use affordable, off-the-shelf technology supportable 
        by Marine Corps IT systems;
         allow expeditious implementation throughout the Marine 
        Corps;
         provide total visibility of inbound cases from the 
        Marine Corps to the Navy and Marine Corps Appellate Review 
        Activity (NAMARA);
         accommodate expanding requirements; and
         provide up-to-date real-time data for commanders and 
        legal leadership to identify trends.

    Several systems were evaluated, including the Federal Case 
Management/Electronic Case Filing system (CM/ECF) and the Navy JAG 
Corps' Case Management, Tracking and Information System (CMTIS). CMS, a 
Lotus Notes-based, web-enabled software application, was ultimately 
selected.\2\
---------------------------------------------------------------------------
    \2\ Lotus Notes is the same software application the Army uses to 
track its military justice and administrative law matters.
---------------------------------------------------------------------------
    After successfully testing CMS at various Marine legal offices, the 
SJA to CMC mandated its use in MARADMIN 062/10 of 1 February 2010. The 
implementation of a common, integrated, real-time case tracking 
database produced immediate results by providing complete visibility 
over every case at every stage of the Service-level process and 
eliminating gaps caused by a variety of incompatible systems throughout 
the Marine Corps. CMS is currently being expanded to provide a separate 
module for administrative law (i.e. review of administrative 
separations and command investigations) and legal assistance (i.e. case 
management and client conflict checks).
    Notably, CMS went from development to Marine Corps-wide 
implementation in 6 months (August 2009-February 2010) at a total cost 
of $48,480. (contracted database development and training). Since 
February 2010, the Marine Corps has spent approximately $10,250 on CMS 
training ($5,250 on technical support training for personnel of the 
Judge Advocate Division, Headquarters Marine Corps (JAD) and 
approximately $5,000 on fleet-wide user training conducted by JAD 
personnel). There are two full-time DOD civilian IT professionals and 
one Marine Staff Sergeant (MOS 4421) currently administering all legal 
IT requirements for the Marine Legal Community, including centralized 
administration of CMS.
    The DOD IG Report noted:

          The recently-fielded Marine Corps CMS appears to have 
        substantially greater potential than the Navy CMTIS. 
        Specifically, CMS appears to offer better and more complete 
        capability for management to maintain visibility over 
        individual case processing and status in the field, including 
        post-trial processing in the field. However, CMS is still new, 
        relatively untested and has yet to develop all the needed 
        capabilities.

    Effective vs. Exquisite. It is worth noting the DOD IG Report was 
issued in December 2010 and based on evaluations of CMS the previous 
May. Since then, JAD has made significant upgrades and revisions to 
CMS, such as the addition of data fields, validation of required 
fields, capturing VWAP information, and updating reports and views. The 
majority of these upgrades were based on user feedback. Admittedly, CMS 
reflects the austere and expeditionary character of the Marine Corps. 
It lacks the appearance and feel of a more expensive software solution 
that one might associate with, say, an ``iPad.'' CMS also does not 
track cases from the inception of a command or law enforcement 
investigation. However, such capabilities do little to ensure effective 
courts-martial processing, and ultimately only serve to add cost, 
complexity, and delay in delivery of any case tracking system.
    Initial Results. CMS effectively and efficiently accomplishes the 
purpose for which it was designed. United States v. Moreno \3\ 
established a presumption of unreasonable delay where the convening 
authority's action is not taken within 120 days of the completion of 
trial or when the record of trial is not docketed by the Service Court 
of Criminal Appeals within 30 days of convening authority's action. 
This presumption may be rebutted by the government with evidence 
showing the delay was reasonable under the circumstances. As depicted 
in the graph below, since the implementation of CMS the average 
processing time for Marine Corps cases from date of sentencing to 
receipt of the record of trial by NAMARA has gone from 119 days in 
fiscal year 2009 to 83 days in fiscal year 2010 and is currently 78 
days for fiscal year 2011.\4\
---------------------------------------------------------------------------
    \3\ U.S. v. Moreno, 63 M.J. 129, 142 (2006).
    \4\ Receipt by NAMARA marks the conclusion of the service-level 
post-trial processing mission. On average, those cases that are 
ultimately docketed with NMCCA, are docketed 1-3 days from the date 
NAMARA receives the record.
---------------------------------------------------------------------------
      
    
    
      
    In addition, on 24 February 2010, 1 week after the effective date 
of implementation of CMS, 41 of the 121 total cases in the post-trial 
process exceeded 120 days from the date of trial (sentencing) to 
convening authority's action. As depicted in the graph below, on 12 
July 2011 none of the 175 total Marine Corps cases in the post-trial 
process violate the presumption of delay standards created in Moreno.
      
    
    
      
    The institutionalization of active monitoring at all supervisory 
levels, through a single database real-time tracking system ensures 
that every law center, LSSS, and SJA office consistently meets timely 
post-trial processing requirements. The decrease in post-trial cases 
over the Moreno time limit is largely the result of this increased 
oversight. Cases that are over 90 days are flagged on CMS via an 
automatic alert system and reported to the SJA to CMC. Because CMS is a 
real-time case tracker, JAD is able to identify issues as they occur 
and to offer assistance as the need arises.

    Military Justice Oversight Council and Annual Military Justice 
        Report
    The 506 Panel recommended that the current annual military justice 
report requirement and the Military Justice Oversight Council (MJOC), 
created in 2010, be institutionalized in a Secretary of the Navy 
Instruction. This was accomplished in SECNAVINST 5430.27D, signed by 
Secretary of the Navy on 25 April 2011.
    In making this recommendation, the 506 Panel noted that the 
military justice mission remained the core statutory mission for the 
uniformed legal community, and that the requirement for this mission is 
not just about numbers of judge advocates. The 506 Panel stated `` . . 
. more accurately, engaged leadership and effective oversight are the 
keys . . . .''
    Case Load
    As depicted below, over the past decade there has been a 
significant decline in general and special courts-martials from 1,802 
total cases tried in fiscal year 2000 to 846 total cases tried in 
fiscal year 2010. The majority of the decline is attributable to a 
reduction in the number of special courts-martial, from 1,626 in fiscal 
year 2000 to 649 in fiscal year 2010. The general courts-martial 
caseload has remained more constant, from 176 cases tried in fiscal 
year 2000 to 197 in fiscal year 2010. As of 12 July 2011, the Marine 
Corps has tried 129 general courts-martial and 355 special courts-
martial this current fiscal year. At the current rate, the Marine Corps 
is on pace to try approximately 600 total cases in fiscal year 2011, 
with the general courts-martial numbers again remaining steady and 
another decrease in the total number of special courts-martial cases.
      
    
    
      
    Although the number of courts-martial has continued to decline, the 
demand for military justice support has not declined. Allegations of 
misconduct have remained steady, with an average of approximately 
12,000 allegations reported annually from fiscal year 2000 through 
fiscal year 2008, reflecting a continued trend in the disposition 
philosophy of our commanders to dispose of less serious misconduct at 
alternative forums (e.g. summary courts-martial, nonjudicial 
punishment, et cetera). Historical data and local assessments indicate 
that the court-martial caseload is sufficient to provide Marine judge 
advocates and support personnel the opportunity to gain proficiency and 
build an experience base for the development of a professional military 
justice practice.
    Requirements for Complex Cases
    Trial Counsel Assistance Program. The increasing complexity of 
courts-martial requires today's judge advocates to have a greater 
breadth and depth of knowledge while still remaining proficient in the 
basics. Based on the success of the Defense Counsel Organization 
supervised by the Chief Defense Counsel of the Marine Corps, the Marine 
Corps stood up the Trial Counsel Assistance Program (TCAP) in May 2010 
within Judge Advocate Division. The TCAP is comprised of one field 
grade officer and one company grade officer. The TCAP provides training 
and resources to assist Marine prosecutors using a number of tools, 
including onsite training, video teleconferencing, and the TCAP 
SharePoint litigation support Web site that contains practice 
advisories, a military justice blog, a motions bank, and other useful 
documents and links. In fiscal year 2011, the SJA to CMC sponsored 
three regional TCAP Training Conferences at Camp LeJeune, Camp 
Pendleton, and Kaneohe Bay.
    Victim Witness Assistance Program. The Military Justice Branch 
(JAM) within JAD oversees the Victim Witness Assistance Program (VWAP) 
for the SJA to CMC in his role as the Marine Corps' responsible 
official for VWAP. Beginning in fiscal year 2010, the SJA to CMC 
sponsors an annual VWAP Training Conference, hosted by JAM and attended 
by VWAP representatives from every Marine Corps base. The training is 
tailored to provide the base program managers (Victim Witness Liaison 
Officers) with the tools to manage their respective programs and 
provide local training to their installation VWAP personnel. The 
conferences featured briefs from nationally recognized victim 
assistance and advocacy trainers, DON and Marine Corps agency heads, 
Naval Criminal Investigative Service agents, Family Advocacy Program 
victim advocates, and law enforcement and corrections personnel.
    Sexual Assault Prevention and Response Program. JAM continues to be 
actively involved in assisting Headquarters Marine Corps in developing 
policy and advising and training judge advocates with respect to the 
prevention of and response to allegations of sexual assault. The policy 
focuses primarily on providing a robust support system for victims of 
sexual assault. JAM is responsible for ensuring that all judge 
advocates receive initial and periodic refresher training on sexual 
assault response policies, victim rights, victimology, sex offenders, 
current scientific standards for evidence, recantations and false 
information, and deployment issues, including remote location 
assistance.

Overall Number Of Judge Advocates Required
    The 506 Panel concluded that ``[t]he Marine Corps' programmed 
target inventory of approximately 550 judge advocates over the next 5 
years will be sufficient to fulfill the legal requirements of the 
Marine Corps, as well as to preserve the ability of Marine judge 
advocates to serve in non-legal billets, maintaining their role as 
well-rounded MAGTF officers and contributing to the broader Marine 
Corps mission.''
    The Marine Corps will continue to ensure that judge advocate 
structure, inventory and assignments are effectively managed to meet 
evolving mission requirements. As the 506 Panel noted:

          A review of internal Marine Corps studies, as well as a CNA 
        study of Marine Corps manpower systems, reflects favorably on 
        the Marine Corps' efforts to actively manage legal 
        requirements, including: its use of a ``bottom-up'' structure 
        review, careful assessment of increasing demands from 
        operations and force growth, effective incorporation of the SJA 
        to CMC as the Occupational Field Manager into the manpower 
        process, and building active-duty judge advocate inventory in 
        support of approved structure increases.
          . . .

          [The] Marine Corps has an effective manpower management 
        system that deliberately and systematically identifies legal 
        requirements within the organizational structure of the Marine 
        Corps, then funds and builds an active duty inventory to 
        support those requirements.
      
    
    
      
      
    
    
      
    Operational Law Requirements
    The 506 Panel concluded that ``permanent operational law billets 
can be expected to approximately double over the next decade for the 
Navy and Marine Corps, and there will likely be continued growth in the 
demand signal for judge advocates in contingency operations.'' The 506 
Panel recommended that the Marine Corps consider measures to expand 
opportunities for senior Marine judge advocates to compete for senior 
legal positions within the joint community.
    Permanent Operational Law Assignments. Within the Marine Corps, 
operational law advice and services have been, and continue to be, 
provided primarily by SJAs permanently assigned to the command elements 
of the MAGTFs and the headquarters of the Marine Forces component 
commands (e.g., Marine Forces Europe, South, Central, et cetera).\5\ 
Additionally, there are structured requirements for Marine judge 
advocates to be permanently assigned to operational law billets at 
service headquarters,\6\ Office of the Judge Advocate General 
(OJAG),\7\ Joint Staff,\8\ and training commands.\9\ Marine judge 
advocates also compete for permanent assignment to joint operational 
law billets on the staff of the combatant commands that are not 
structured and aligned to be filled by any particular Service. The 
requirements for permanently assigned judge advocates to provide 
operational law support has steadily increased over the years, rising 
135 percent from 2000 through 2012, as portrayed below.
---------------------------------------------------------------------------
    \5\ The MAGTF is the Marine Corps' principle organization for all 
missions across the range of military operations. MAGTFs are general 
purpose combined arms units that can be tailored (task-organized) to 
the requirements of a specific situation. Regardless of size or 
mission, each MAGTF has four core elements: a command element (i.e., 
headquarters), ground combat element (e.g., units of infantry, 
artillery, or tanks), aviation combat element, and logistics support 
element. The command element provides the command and control for 
planning and executing all military operations, and as such serves as 
the headquarters. Id. There are both standing MAGTFs (e.g., Marine 
Expeditionary Units (MEU) and Marine Expeditionary Forces (MEFs)) and 
mission-specific, contingency MAGTFs (e.g., Marine Expeditionary 
Brigade-Afghanistan (MEB-A)). There are three standing MEFs (I, II, and 
III MEF), and seven standing MEUs (11, 13, 15, 22, 24, 26, and 31st 
MEU).
    \6\ E.g., Branch Head, Operational and International Law Branch 
(Code JAO), Judge Advocate Division (JAD), Headquarters, Marine Corps.
    \7\ E.g., International Law Officer, Code 10, Office of the Judge 
Advocate General.
    \8\ E.g., Non-Proliferation Planner, Office of Legal Counsel, 
Chairman of the Joint Chiefs of Staff.
    \9\ E.g., Instructor/Trainer/Advisor at Naval War College, Marine 
Corps University, The Army Judge Advocate General's Legal Center and 
School (TJAGLCS), and Marine Air Ground Combat Center (MCAGCC), 
Twentynine Palms.
---------------------------------------------------------------------------
      
    
    

    These numbers include seven Marine judge advocates assigned to 
Marine Expeditionary Units. These rotational units have traditionally 
served as the ``first responders'' to regional crises, such as aviation 
support to combat operations in Libya and humanitarian assistance to 
Pakistan. Further, our judge advocates serving at Marine Forces 
component commands, which are assigned to the geographic and functional 
combatant commands, provide the most senior Marine operational 
commanders with legal advice concerning international agreements, 
security cooperation, and contingency operations. We are proposing 
measures within the Marine Corps to enhance the joint experience base 
and, thus, create greater opportunities for senior Marine judge 
advocates to compete for senior-level joint billets.
    Marine Judge Advocate Support to Deployed Marine Units. In addition 
to the judge advocates permanently assigned to deploying Marine Corps 
units, there is a significant requirement to temporarily augment these 
units with additional judge advocates for deployments. There are 
currently 39 Active and 8 Reserve Marine judge advocates forward 
deployed with Marine units in support of combat and other contingency 
operations around the world. These deployed judge advocates provide 
critical operational legal advice to commanders. While future manning 
requirements for judge advocates assigned to our traditional legal 
functions, such as military justice and legal assistance, are more 
easily projected, aligning our judge advocate manning requirements to 
support contingency operations is more complicated due to the 
unpredictable nature of global crises.
      
    
    
      
    Marine Judge Advocate Support to Joint Task Forces. There are 
requirements for individual augments (IA) to provide legal services to 
various Joint and Combined Task Forces, Joint forces and NATO commands. 
Marine Corps judge advocates currently serve as IAs with NATO's 
International Security Assistance Command-Afghanistan, U.S. Forces-
Afghanistan, Combined Joint Interagency Task Force - 435 in 
Afghanistan, Combined Joint Task Force-Horn of Africa in Djibouti, and 
Joint Task Force Guantanamo Bay. One high-profile example of the 
importance of IAs was the selection of a Marine colonel to serve as the 
senior legal advisor to General Petraeus in Afghanistan. While there 
has been no shortage of active duty volunteers, IA billets are also 
being filled with volunteers from the Marine Corps Reserve. Currently 
there are four Active component, and three Reserve component judge 
advocates serving in IA billets.
    Support to the Office of Military Commissions (OMC)
    The 506 Panel noted the requirement for support to the OMC. This 
requirement was formally revalidated by the Deputy Secretary of Defense 
in April 2011. Specifically, the Deputy Secretary of Defense directed 
the extension of OMC manning requirements through the end of fiscal 
year 2015. The 506 Panel also anticipated that if the majority of 
pending cases are referred to military commissions, the OMC would 
request more experienced and accomplished litigators.
    By September 2011, there will be 13 Active and Reserve Marine Corps 
judge advocates at the OMC, including one of our most experienced 
colonels who is serving as the Chief Defense Counsel for OMC. Each 
judge advocate at OMC is screened on the basis of their military 
justice skills and experience prior to being assigned to the OMC.
    Support to the Disability Evaluation System (DES)
    The Wounded Warrior Act of 2008 and the DOD implementing memorandum 
provide that government legal counsel shall be made available:

         on a discretionary basis prior to the servicemember's 
        receipt of the decision of an Informal Physical Evaluation 
        Board (IPEB),
         on a mandatory basis, to consult about rights and 
        elections, after receipt of the decision of the IPEB, and
         on a mandatory basis, for full representation at the 
        Formal Physical Evaluation Board (FPEB).

    The 506 Panel noted that the Services differ in exercising the 
discretion to provide legal counsel to wounded, ill, and injured (WII) 
servicemembers prior to the decision of the IPEB. The 506 Panel 
recommended that this difference in approach be examined by the DOD and 
DON.
    IPEB Representation. Currently, Reserve Navy JAG attorneys provide 
IPEB legal advice to WII sailors and marines at the following 
locations: Bethesda, Norfolk, Jacksonville, Pensacola, San Diego, 
Bremerton, and Great Lakes. The Marine Corps has mobilized five Reserve 
judge advocates to support both mandatory and discretionary IPEB 
counseling requirements. Three are located on the East coast (Camp 
Lejeune and Bethesda Naval Hospital/MCB Quantico) and two are on the 
west coast (Camp Pendleton and Naval Hospital San Diego), fully devoted 
to pre and post-IPEB consultations.
    FPEB Representation. An additional two mobilized Marine judge 
advocates are representing both marines and sailors at the FPEBs 
alongside their Navy JAG counterparts. They are operationally assigned 
to the Navy Legal Services Office-North Central (NLSO-NC). NLSO-NC is 
tasked with all Navy FPEB representation. The need for these additional 
judge advocates became apparent when in March 2011 the Navy's Physical 
Evaluation Board (PEB) increased the number of scheduled weekly formal 
PEB (FPEB) hearings from 16 to 24. Continued funding for all seven 
(IPEB and FPEB counsel) Marine Reserve mobilizations is expected 
through fiscal year 2012 and is likely to be continued through fiscal 
year 2013.
    Long-Term Solution. In conjunction with Navy JAG, we are currently 
examining the DES architecture, including civilian and military 
counsel, to develop a way ahead on providing legal counsel to our WII 
marines and sailors. An additional Marine Reserve judge advocate serves 
within the JAD's Legal Assistance Branch to supervise Marine IPEB 
counsel and coordinate with OJAG (Code 16) in developing the 
Department's DES program. The Navy JAG anticipates hiring civilian IPEB 
attorneys to provide a long-term solution for representation to the 
WII. Additional civilian IPEB counsel are contemplated to ultimately 
replace the mobilized Reserve judge advocates by fall of 2013. As part 
of the FSRG, the SJA to CMC is proposing the addition of five permanent 
structured billets at wounded warrior regiments. The requested 
structure includes one Major (O-4) and one Captain (O-3) on each coast, 
with another Captain in the National Capital Region. The proposal is 
based on IPEB counsel field experience, which continues to demonstrate 
that the provision of legal counsel earlier in the process than the 
release of a member's IPEB results reduces processing time, produces 
more accurate IPEB results, and then reduces the number of formal 
hearings.
    JAG Authority over USMC Manpower Policies and Assignments.
    The Marine Corps concurs with the 506 Panel's recommendation 
against providing additional authority for the JAG over manpower 
policies and assignments of judge advocates in the Marine Corps, and 
agrees with the 506 Panel that additional authority is neither 
``necessary nor warranted.'' The 506 Panel provided several compelling 
bases for their recommendation, stating:

          [t]he Commandant, with the assistance of the SJA to CMC, is 
        effectively managing judge advocate manpower (i.e., structure, 
        inventory, and assignments) to meet Service, Departmental, and 
        joint legal requirements; and to ensure community health (i.e., 
        recruiting, retention, and education) and proper career 
        progression (i.e., promotions) for Marine judge advocates. 
        Moreover, the JAG is not in the best position to exercise 
        additional authority in these areas within the Marine Corps, 
        given the Marine Corps' unique requirements for community 
        health and career progression of Marine judge advocates. 
        Lastly, transferring authority from the Commandant to the JAG 
        could marginalize the SJA to CMC as a legal voice within his 
        Service, contrary to the 506 Panel's view that the role of the 
        SJA to CMC needs to be clarified and strengthened.
Enduring Institutional Accountability
    The DOD IG Report of 10 December 2010 concluded that:

          Longstanding process failures stemmed from inadequate 
        leadership, supervision and oversight in organizations 
        suffering from many policy and structural impediments . . . . 
        Overall, the Navy JAG and senior leadership did not 
        satisfactorily identify, address, or fix the severe post-trial 
        processing problems that recurred over two decades despite many 
        warnings and trouble signs.

    The DOD IG Report recommended the SJA to CMC be given greater 
authority to conduct Article 6, UCMJ, inspections and to exercise 
professional supervision over Marine judge advocates. The 506 Panel 
echoed findings contained in the DOD IG Report, opining that:

          the challenge presented to the leaders of the Navy and Marine 
        judge advocate communities, with respect to their core military 
        justice function, has as much to do with ensuring engaged 
        leadership and effective oversight as it does with numbers of 
        judge advocates.

    The 506 Panel recommended clarifying and strengthening the role of 
the SJA to CMC, by:

         providing the SJA to CMC ``authority to supervise the 
        administration of military justice and the delivery of legal 
        assistance services within the Marine Corps'',
         providing the SJA to CMC ``authority to exercise 
        professional and technical supervision over all Marine judge 
        advocates'', and
         establishing a ``direct relationship between the SJA 
        to CMC and the SECNAV.''

    The 506 Panel concluded that these measures ``will improve the 
delivery of legal services within the Marine Corps, and in particular 
post-trial processing at the Service level, by institutionalizing clear 
lines of authority and accountability.'' The 506 Panel recommended a 
dual statutory and regulatory approach, noting that ``legislation would 
provide the more enduring, institutional basis for clarifying and 
strengthening the role of the SJA to CMC.''
    Both the DOD IG and the 506 Panel reports, as well as our internal 
study, suggest that the challenges facing the DON in the delivery of 
uniformed legal support are about far more than the number of judge 
advocates in the Navy and Marine Corps. Their conclusions suggest that 
the greatest obstacles to accomplishing the DON's legal mission are 
decades-old systemic lack of Service-level leadership and supervision, 
as well as deficiencies in Departmental oversight.
    Over the past few decades, several JAGs have implemented measures 
and dedicated precious time and resources to address these unique DON 
challenges. However, as the DOD IG noted, ``[w]hen curative measures 
were taken, they were often short-lived or insufficiently 
institutionalized to endure past the incumbency of individuals who 
resolved problems at the time.'' This suggests that systemic 
deficiencies stem not from personal leadership failures but rather from 
gaps inherent in the DON's unique uniformed legal organization.
    By positioning the respective Judge Advocate Generals within the 
Service military staffs, Congress provided the Army and Air Force with 
Service-level legal leadership positions with commensurate supervision 
authority and accountability. Congress provided for a direct 
relationship between the Service JAGs and the Department Secretaries. 
In a single-Service Department, the JAGs can seamlessly provide 
Service-level leadership and supervision while remaining accountable to 
their Secretaries to facilitate Departmental oversight.
    The dual-Service Department of the Navy does not readily lend 
itself to the efficient construction of the Army and Air Force. A 
single JAG was placed at the Department level, presumably to provide 
for efficiency and integration. To this end, Congress legislated that 
the DON JAG and DJAG would be selected from officers of both the Navy 
and Marine Corps, and provided for two AJAGs--one Navy, one Marine 
Corps. While this statutory construct accounted for the requirement for 
Departmental oversight, it did not provide for a Service-level officer 
within each of the naval Services to exercise responsive Service-level 
leadership and supervision.
    As recommended by the DOD IG and the 506 Panel, and as articulated 
by the Secretary of the Navy, strengthening and clarifying the role of 
the SJA to CMC will provide this requisite Service-level leadership.
    In the meantime, we have begun providing Service-level leadership 
and supervision based on de facto responsibility. We have used the 
authority vested in the SJA to CMC through the Commandant of the Marine 
Corps to reorganize and reorient the Judge Advocate Division to 
effectively lead and supervise our legal community. That orientation is 
illustrated in the changes depicted below.
      
    
    
      
    Assistant Judge Advocate Generals (AJAGs). The 506 Panel recognized 
that, while the statutory scheme provided for only two AJAG positions, 
to be balanced with one position filled by a U.S. Navy JAGC officer and 
the other a Marine judge advocate, the regulatory scheme provides for 
four AJAGs, with three positions filled by U.S. Navy JAGC officers and 
one filled by a Marine judge advocate. As a result, the current 
regulatory scheme only allows for one Marine to serve among the six 
Departmental JAG-related flag and general officer positions. The 506 
Panel recommended that two of the Department's four AJAG positions be 
filled by Marine judge advocates and two be filled by U.S. Navy judge 
advocates, using the rotational process now being used by the U.S. Navy 
so that the four regulatory AJAG positions rotate through the two 
statutory positions.
    We have recommended to the Secretary of the Navy that the AJAG 
billets and their responsibilities and authorities be re-examined. In 
the interim, I have recommended to the Secretary that the existing 
regulatory AJAG billets be filled in a manner that ensures departmental 
balance and integration as recommended by the 506 Panel.

                               CONCLUSION

    Again, I would like to thank Congress for its interest in the 
health and well-being of our mission. Congress's interest in our 
mission was received as a call to action by our community and the 
leadership within our Corps and I am proud of our response. More 
importantly, as I travel around to our bases and stations visiting and 
inspecting our legal services community, the officers and Marines, both 
senior and junior, are excited about the direction in which our legal 
community is headed.
    The future of our Marine judge advocate community is bright. 
Recruiting trends indicate that incoming judge advocates and legal 
service specialists are uniformly better qualified than we were a 
generation ago. I believe we owe it to them to maintain a professional 
legal community dedicated to meeting the high standards of our Corps, 
with strong, enduring mechanisms for responsibility and accountability. 
Moreover, we owe it to our commanders and individual marines to ensure 
they continue to receive the best possible advice, representation, and 
legal services.
    Based on the direction we are taking in our SAP and in response to 
the DOD IG Report and the 506 Panel, I am firmly convinced that we are 
positioning ourselves to best serve the Marine Corps, the Department of 
the Navy, and DOD.

    Senator Webb. I appreciate all of your testimony.
    General Ary, let me just start by asking if you could give 
us a rundown on this Foster case, I mean, the chronology of it, 
how it got so out of synch.
    General Ary. I would say that it is hard to assess one 
single event. In most of these things, it is a cascade of 
events, and it usually starts with leadership and ends with 
leadership.
    I can tell you that the U.S. Marine Corps, the service-
level mission, from date of trial and the post-trial processing 
until arrival at the court, took 739 days, a completely 
unacceptable length of time.
    Today, we are tracking 164 cases. We have total visibility 
of them in the post-trial process. There are 25 over 90 days, 
and none of those have exceeded 120-day timeline of the Moreno 
standard.
    We also provide the Navy and Marine Corps appellate review 
activity with an account receivable of cases that are inbound 
to that court. They have total visibility of cases from date of 
trial. So it is a push-pull system in the Department of the 
Navy, as far as the Marine Corps side in our case management 
system.
    This is not hard, but it requires an attention to detail 
that just did not exist at the time Foster occurred.
    Senator Webb. I am going to just ask you as a former 
Marine. How did something like that get lost for 9 years? At 
least that is the word that we have here, that it languished 
for 9 years.
    Was this systemic? Was it somebody sticking it in a drawer? 
I just don't understand it.
    General Ary. I would not say that it was unique, sir. I 
would say that there was an institutional--I think the DOD IG 
was right on when they talked about failure of oversight at all 
levels, about lack of proper visibility and case tracking 
systems.
    We just lost sight of the accountability that we needed, 
and it was inexcusable, sir.
    Admiral Houck. Sir, if I may join General Ary, because this 
wasn't an exclusively Marine Corps problem. This was a Navy and 
Marine Corps problem.
    The problem, as he alluded to, started at the Service level 
in the Marine Corps, but it continued when it reached the Navy-
Marine Corps Court of Appeals.
    I agree with General Ary. First and foremost, I think it 
was a management-leadership issue. I also think it was a 
resourcing issue. I think that the court was not adequately 
resourced at the time, and I think the people that were on the 
court did a poor job of managing the resources that they had.
    We have today, as I mentioned earlier, by any measure, by 
several different measures, most of which are set by the Court 
of Appeals of the Armed Forces, we are meeting their gates and 
then some. We have done that, I think, through three ways.
    We have, first of all, it starts with the two of us. We are 
personally focused on this problem. We meet in a military 
justice oversight council once a month. The two of us are 
always there and with several of our assistants to talk about 
case tracking in the department.
    We have also put good qualified, motivated military justice 
people on our courts and within the system, I mean, from the 
appellate court to the trial level. The judiciary is no longer 
a place, as it was sometimes in the past the Navy and the 
Marine Corps, where people go because there is no other good 
place for them to go. We have a judicial screening board, and 
we don't pick everybody that applies to be a judge these days.
    We, because of our small number of cases in the Navy, have 
set up a military justice career track, which is designed to 
ensure that for the cases that we have, that we get our 
experienced prosecutors and defense counsel on those cases, and 
that they continue to work cases so they can build their 
experience within the caseload that we have.
    So there are a number of people in JAG Corps alumni that 
said we would never do that and never make that work, and it is 
working today. It is fully populated and operational.
    So I think the third thing that General Ary has alluded to 
are systems that we have in place that we did not have and 
weren't overseeing adequately back in the day. So I just wanted 
to join in.
    Senator Webb. I thank both of you. It is refreshing to see 
people just kind of step up and accept responsibility. I think 
the numbers that you both gave in terms of where you are now on 
timelines is really encouraging. So I thank you for that.
    Senator Graham.
    Senator Graham. Mr. Chairman, I want to thank you for 
having the hearing because let it be said that Congress cares. 
We watch. We follow, and the Foster case was the reason for us 
to have the independent panel review.
    We now have a better understanding of what the many 
requirements are for the Navy and the Marine Corps, and I think 
we have two people in positions of leadership for the Navy and 
Marines that are not going to let this ever happen again. For 
that, I thank you.
    From the Army's point of view, Lieutenant General Chipman, 
what happens? We are trying to figure out what force we need, 
what we can afford, and how the Defense Department fits in the 
overall budget woes of the country.
    If we reduce the Army by 49,000 people, how does that 
affect the JAG Corps? Do you have any idea how this will affect 
your ability to perform?
    General Chipman. Senator Graham, I think it would affect us 
in a couple of different ways that I can identify in 
particular. First, many of our judge advocates now are embedded 
in the units they advise. For example, to the extent that we 
take down 49,000 soldiers in force structure, we will lose the 
corresponding judge advocate billets that accompany those 
formations.
    We have two judge advocates assigned to every brigade in 
the Army. When they deploy, typically, there is a third judge 
advocate because of the need to conduct rule of law operations, 
as you saw in your own deployments at U.S. Central Command 
(CENTCOM).
    Second, if we take down 49,000 soldiers overall, I see more 
focus on the headquarters-level functions to deal with how do 
we respond to surge requirements that may accompany different 
and evolving missions. BRAC has increased our legal workload. 
That turbulence in taking 49,000 soldiers out of our inventory, 
I can imagine, will generate another set of legal issues, as we 
figure out the authorities and the personnel actions needed to 
effect that reduction.
    Senator Graham. So we just need to know that as you draw 
down the Army, your workload probably goes up.
    General Chipman. Senator, I think that is an accurate 
statement.
    Senator Graham. Now, Admiral, I am very confident after 
this hearing, that you have a grip on what needs to happen in 
terms of monitoring military justice activity, particularly 
appellate review. The 950 number, is that the right number, and 
are you going to get the people?
    Admiral Houck. Sir, the way that I arrived at my estimate 
for--I think it is the right number. It is close to the right 
number.
    The way I arrived at my assessment last year before the 506 
panel met was very simply to look at what I believe to be the 
needs of our base force for judge advocates would be, and that 
would be the people to do the traditional things that judge 
advocates do.
    I also recognize that we have the missions right now of 
individual augmentees in the global war on terror that you 
spoke of earlier, as well as the Office of Military 
Commissions.
    Senator Graham. Do you know how many Navy personnel have 
been assigned to Iraq or Afghanistan as individual augmentees 
(IA)?
    Admiral Houck. It is close to 500 judge advocates, Active 
and Reserve. Our Reserve component has been spectacular in 
helping us meet these demands.
    I looked at our base force, did a lot of shoe leather, a 
lot of phone calls, a lot of travel, a lot of discussions, and 
came to a number. Then adding on top of that base force number, 
which I judged to be and still judge to be about 820 judge 
advocates in the Active component, add to that number those 
necessary to fulfill the IA and Office of Military Commission 
numbers.
    Today, July 20, that number adds up to be 925 people, by 
coincidence, as it was about a year ago. The Navy program for 
this year has us at 801. That delta between 925 and 801 is 
mitigated by a couple of things.
    The first one is we are being allowed to over execute, 
which is to say we probably will carry about 30 extra attorneys 
beyond that 801 number by the end of the fiscal year. We have 
done that 13 out of the past 20 years.
    The second thing is our Reserve component, reservists that 
are mobilized, where they have come on for Active Duty for 
special work. That is about another 60 attorneys. So that 
begins to close that gap. To be precise, it is 895 today versus 
what I believe is a requirement of 925.
    Is there some risk that is still in that delta? I think 
there is. But I think it is----
    Senator Graham. My question is, is it going to close?
    Admiral Houck. Judging by the Navy program, the Navy 
program is designed to get lower over the next couple of years 
and then to build back up toward that number across the Future 
Years Defense Program of 821. I think the delta is going to 
depend a lot on what we see real time in the demand for the IA 
mission and the Office of Military Commissions.
    Senator Graham. Okay.
    Admiral Houck. It is difficult for me to predict what that 
is going to be going forward.
    Senator Graham. Okay. Lieutenant General Harding, can you 
tell us what effect being a three-star has had in terms of your 
ability to do your job versus two stars?
    General Harding. Yes, sir. It has had a huge effect. Again, 
it is all about a seat at the table, and it has produced a seat 
at the table.
    Now, I had not served earlier as a two-star, had served as 
a one-star and was promoted to three. I will tell you the 
difference between those two worlds is huge. It is galactic, 
and as is the difference between serving as a one-star and a 
colonel.
    Progressively, you are in a situation, certainly as a judge 
advocate, where you can hear planning and strategizing ongoing. 
If legal advice is required--and you may be the only one in the 
room that understands that there is a legal issue that has now 
been raised--you are present to do so.
    So it is awfully important to have a seat at those tables.
    Senator Graham. If we have too many generals, I want to 
know about it. I want to make the Pentagon more efficient.
    Mr. Chairman, the reason I wanted to have this hearing not 
only because of the Navy-Marine Corps problem, it is because I 
have been in the Air Force, and consider my interest parochial, 
I can't imagine combat commanders at the level we are talking 
about not having access to general officer legal advice. I 
mean, it is just not the Air Force that I know.
    I guess I maybe am biased here. I just know what rank means 
when it comes to having entre. I just wanted the committee to 
understand that this is a major change. I mean, this is a 
fundamental, seismic change in terms how the Air Force delivers 
legal advice.
    I have a letter from the Air Force Chief of Staff who 
recommended not to go this way when it came to replacing these 
three stars. I would like to introduce that in the record.
    I just appreciate my colleagues listening. With that, I 
will turn it over to anyone else.
    Senator Webb. Your letter will be put in the record at this 
point.
    [The information referred to follows:]
      
    
    
      
    
    
      
    Senator Webb. I, also for purposes of objectivity here, 
would like to emphasize the chart that we showed at the 
beginning of this hearing. If you look at the Army with 569,000 
Active Duty people, they have a total of 6 JAG general 
officers.
    The Navy has 328,700. They have a total of two.
    The Marine Corps has 202,000 people. They have one and he 
is sitting at our table.
    The Air Force has 332,000 people, and they have 6.
    So, General, I appreciate your adamant belief in this 
point. But at the same time, I think there is a decision that 
has been made over in DOD, and at least from my perspective, it 
will take a lot to turn it around.
    General Harding. Yes, sir. May I comment about the chart, 
sir?
    Senator Webb. Is this your personal opinion again?
    General Harding. No, sir. This is, I think, documented in 
the 506 panel as well. I know for a fact it is.
    Senator Webb. All right. By all means.
    General Harding. To a degree, to ensure that we are 
comparing apples to apples, I think it is important to take a 
look at the various mission sets of those three JAG Corps. They 
are not coterminous. They are not equal.
    For example, in the 506 panel, they depict the Senior 
Executive Services (SES) billets for the Army Materiel Command, 
which is separate and apart from the Army JAG Corps. In the Air 
Force, the Air Force Materiel Command is supported legally with 
one of those one-stars that we are talking about today.
    If you take a look at the Navy side, you will see that 
their model is very different, far afield from the Army's and 
the Air Force's model. Their Navy Legal Services largely is run 
by their Navy general counsel. In fact, there are 22 SES 
equivalent positions there.
    So I think it is important to look at mission as well as--
--
    Senator Webb. General, I take your point. I am sorry to 
interrupt, but you have taken a lot of time on this.
    For the record, let me just say I grew up in the Air Force. 
I know where you are coming from here.
    Senator Hagan.
    Senator Hagan. Thank you, Mr. Chairman.
    I think this is very interesting, and I appreciate you all 
having this hearing today.
    I just wanted to talk a little bit about the expansion of 
services. As many of our troops are returning home after 
deployment, after a year's deployment, they are welcomed home 
to a life they didn't leave, that is very different from the 
year prior before they left.
    Some of them are facing divorce. Some of them are facing 
custodial battles. Some are challenged by financial issues, 
such as bankruptcy. These legal issues can also be the cause of 
so much stress and financial complications, which ultimately 
will be distracting to their ability to perform their mission.
    Although military members can receive legal assistance on 
post, many military attorneys, from what I understand, are 
recent law school graduates who are licensed in States other 
than where they actually are assigned for duty. Understandably, 
the JAG Corps is not equipped to handle the scope and the 
breadth of attention for each of these personal matters.
    I am from North Carolina, and our State bar association has 
a standing committee on legal assistance for military 
personnel, whose Web site, it is actually North Carolina Legal 
Assistance for Military Personnel (NCLAMP). They have valuable 
legal information available for military servicemembers.
    This initiative provides a network of legal assistance 
attorneys to provide prompt and professional advice. Since 
1983, they have also produced handouts to educate clients and 
military legal assistance teams on the relevant areas of law, 
of North Carolina law. The committee also keeps tracks of 
unique problems that are primarily military in nature to inform 
the North Carolina bar about these particular issues.
    I believe this initiative offers a template for a 
successful integration between local and State communities 
around military installations, and I understand that many 
States have similar programs like this NCLAMP for military 
personnel.
    Do you know if any evaluation has been done to look at 
formal partnerships at the local and State levels to complement 
gaps in legal care for our servicemembers?
    General Chipman. Senator, I would like to start with that 
question.
    Senator Hagan. Okay.
    General Chipman. But first, I would like to say that Mark 
Sullivan is not just a North Carolina asset. He is a national 
asset, and he has greatly affected our legal practice 
nationwide with his devotion to legal assistance needs of our 
servicemembers.
    There are, in fact, partnerships. There are places where we 
have what is called an expanded legal assistance program. 
Georgia comes to mind. Texas, in particular, is very aggressive 
in supporting soldier and veterans' needs for legal assistance 
services.
    I don't know of any formal institutional framework by which 
those have been pursued. But I can say that I and my colleagues 
will be in Toronto in a couple of weeks for the American Bar 
Association (ABA) convention, and it is certainly a topic we 
could raise with the LAMP Committee, as well as the Standing 
Committee on Armed Forces Law. I think that would be a great 
topic to look at their expertise in.
    Senator Hagan. Great. Anybody else?
    Admiral?
    Admiral Houck. No, ma'am. I was just going to make the ABA 
point before General Chipman did. They have taken a pretty 
active role in the pro bono business and in trying to get us 
linked up with local bar associations and pro bono efforts.
    General Harding. I would throw my hat in the ring with the 
ABA. They have done superb work, and we have supported them 
wherever we can. They don't supplement, they augment what we do 
in our legal assistance program. So it is important that that 
program remain.
    To the extent that we can expand legal assistance with our 
meager resources, we would. But, frankly, we are a little 
resource constrained on legal assistance.
    General Ary. I might add that legal assistance has always 
sort of been viewed as a luxury, that that is where you put 
your excess capacity. Our Commandant has a priority that we 
keep faith with all marines. He has made that a priority and 
that is the piece, the one piece, that we are concerned about.
    I know we have spent a lot of time talking about military 
justice, but we look at the legal community as an area in which 
we need balanced excellence across all of the areas. It is a 
bit of a challenge, especially when you have new missions, like 
the disability evaluation system. But it is something that we 
have to position the legal communities across the board to 
cover those and make sure that we execute in a proper manner.
    So, thank you.
    Senator Hagan. Thank you.
    Senator Webb. Thank you, Senator Hagan.
    Senator Brown.
    Senator Brown. Thank you, Mr. Chairman.
    General Chipman, as the Army actually draws down, I agree 
the workload will definitely increase. The Guard seems to be a 
unique investment in today's force. Do you think the Guard will 
play an expanded role in helping reduce the actual workload?
    General Chipman. Senator, I do. We have actually recently 
resourced a Guard trial defense service initiative. It is in 
its first year of operation. We have about 100--in excess of 
100 National Guard judge advocates performing trial defense 
service in support of that new team.
    But we have more than 50 National Guard judge advocates 
mobilized right now in support of various requirements and have 
had that number over the last several years. In fact, we have 
nearly 5,000 individual augmentee and unit mobilizations since 
September 11. So we have gotten great support from both the 
Army Reserve and National Guard.
    I certainly see the Guard assisting as we transition--
whatever change we effect within the Army, I see the Guard 
playing an integral role there and not the least of which is 
their role in our civil support operations, which we have so 
many guardsmen mobilized right now with the Southwest border 
mission and with natural disaster response.
    Senator Brown. Do you think that we have enough 
commissioned officers in the Guard who are qualified in the 
legal profession? Do you think there is a breakdown there at 
all?
    General Chipman. Senator, that is an interesting question, 
because I look at the relative size of our two components. For 
an Army Reserve of roughly 205,000, we have about 1,800 judge 
advocates. For a National Guard of about 360,000 or a little 
bit more than that, we have around 800 National Guard judge 
advocates.
    So I think there is perhaps some room to grow our Guard 
legal capacity more.
    Senator Brown. General Harding, do you have any thoughts on 
that?
    General Harding. We are 80 percent manned in our Reserve 
category B, those are our individual mobilization augmentees. 
We try mightily to get closer to 100 percent, but I think the 
economy has driven some of the folks to kind of stay at home.
    Having said that, the rest of our Air Reserve component is 
very strong. In fact, they are taking a substantial part of the 
burden of deployment for JAG billets in the CENTCOM area of 
responsibility off the shoulders of their Active Duty brethren. 
They are backfilling the home station and by way of home 
station support those that do deploy forward.
    As a matter of fact, one of our brigadier generals is 
deployed forward in Afghanistan right now, has been there for 
almost a year, and backfilled with an Air Force reservist. So 
we rely on them heavily.
    Senator Brown. Thank you.
    Admiral, I am just trying to kind of wrestle a little bit 
with the report that was made about the number and then, the 
fact that you are not near that number. I understand you are 
talking about augmenting, and I am still not quite there, 
though, as to seeing if the Navy actually has enough folks to 
cover their needs.
    Can you just talk a little bit more about that? I am not 
quite clear on it.
    Admiral Houck. Yes, sir. I think two points to start with. 
My estimate, as I said earlier, is that we need about 925 judge 
advocates right now. I mean, I can't sit here and tell you that 
I have a computer or a calculator that gives me that number. It 
is my best estimate.
    Senator Brown. Right. But you only have 800 and something.
    Admiral Houck. Yes, sir, 895 today.
    Senator Brown. So what is the plan, I guess, to get up to 
that number?
    By that I mean to say are you planning on getting up to 
that number?
    Admiral Houck. The Navy's plan would be to--and going back 
to my description of our base force, about 820, which is what I 
need steady state right now, given our force. The Navy's plan 
reaches that, but reaches it in--at the end of the 5-year 
defense plan.
    Senator Brown. So, in the interim, you are going to be 
basically down a fair amount of JAGs?
    Admiral Houck. Yes, sir. The question going forward, I 
think, real time will be how much of that difference I make up 
through over execution, being allowed to keep more people on 
Active Duty than the plan calls for, as well as to augment it 
with reservists, to your earlier point.
    If I was in an ideal world, I would have 925 full-time, 
steady-state, Active Duty judge advocates to meet that demand 
signal. I can't say otherwise.
    Senator Brown. I guess my next question would be then, that 
being said, I think the other question you need to ask yourself 
is, if you don't have a JAG when you need one, are you prepared 
to take the consequences of a poor decision by one of the 
combat commanders?
    I guess that is the balancing act that you have to do, it 
is not dissimilar than our State district attorneys when they 
are understaffed or police forces back home who are being 
reduced and cut. At what point is it hurtful, potentially, to 
the mission and to the safety and security of our soldiers and 
also the political/legal ramifications of that?
    I know you are wrestling with that. Certainly, if there is 
something that we can do in this committee to--is it a resource 
issue? I mean, do you need additional billets?
    I mean, we are not just here to kind of throw bombs, I 
don't think, or get answers. We are here to find out how we can 
help, too, I think. Especially, you have two JAGs right here 
who kind of get it.
    Admiral Houck. I think for our leadership, they are--to 
state the obvious, they are trying to reconcile many demands. 
The Secretary of the Navy is a lawyer.
    Senator Brown. So that is the problem. [Laughter.]
    Admiral Houck. So he understands the value of legal 
services.
    The CNO has served with lawyers at all levels of command, 
and I have met with him many occasions. I have complete access 
to him, and he understands the value of legal services.
    I think all that I can say is that I see my job is to 
assess the requirement and then tell them what I think it is. 
Then they have to reconcile and make the decisions based on the 
larger picture that they have.
    I think that in 99 percent of cases, we will provide a 
legal answer. I don't think having--I don't think we will not 
provide a legal answer.
    I think the risks are a little more subtle. I think they go 
toward the amount of time we are able to devote toward 
maintaining and attending to some of the legal program 
administrative requirements that come up. I think it goes to 
the amount of time we have to devote to education and training. 
Those are more subtle, but I think those are some areas where 
risk comes into not having enough people.
    Senator Brown. Just a final thought, do you anticipate in 
this shortfall you are going to have of making the requirements 
cross-branch requirements, so the Army or Air Force, and 
getting that type of assistance? Is that something that happens 
at all?
    Admiral Houck. We do some of that. My colleagues may want 
to comment on it--but we do it, particularly, obviously, with 
the Marine Corps. Less so with the Army and the Air Force. We 
do it. We have some joint basing initiatives where we work 
together.
    Senator Brown. I would think, especially on the Services in 
CONUS, obviously, when you are dealing with just legal 
assistance issues, I mean, those are pretty standard 
throughout. Take that pressure off.
    I agree with you. Some of the most important and helpful 
cases I have worked on have been in the legal assistance field 
because that is when things are most dire.
    A husband and wife getting divorced. There is so much 
pressure. That is the pressure point, and that is the morale 
issue, quite frankly.
    Take shift resources on those lower type of really not 
high-end appeal cases and technical cases. Just grind them out. 
Get them done.
    Admiral Houck. We routinely see servicemembers from the 
other Services, and I know they do for ours as well. So that is 
a big area of cooperation for us.
    Senator Brown. Well, I can just make one final conclusion. 
One of the biggest challenges that many guardsmen have is the 
length of deployment, in that there are many soldiers in the 
Guard who would be happy to do backfill tours of 3 to 6 months 
voluntarily.
    Is there any effort in that, to reach out to do those types 
of tours and say, ``Hey, listen, we have a guy who has been 
deployed. He needs a break, and he needs 3 months.''
    Do you send those feelers out--because we don't get them 
too much, I know, in our unit. Anybody can comment on that.
    General Harding. We have done that before, daisy-chaining a 
deployment link to send somebody over there for 90 days, in a 
succession of 90 days.
    Senator Brown. Even in CONUS, just to backfill here.
    General Harding. Certainly, yes, Senator, we do bring folks 
in, as I say, home station support to support legal offices 
that are a little shy because they have some folks down range. 
But certainly. Certainly.
    For adjustable periods of time so they can certainly find a 
spot that is right for their employer as well. So we have done 
that.
    Senator Brown. Great. Thank you all.
    Thank you, Mr. Chairman.
    Senator Webb. Thank you, Senator Brown.
    I would like to express my appreciation to Senator Brown 
and Senator Graham for their continued service in uniform, as 
well as here in the Senate, and Senator Graham for having 
recommended this hearing.
    He is one of the great lawyers up here in the Senate. There 
is nobody up here who is better on law of war and those sorts 
of issues. Tremendous admiration and respect for Senator 
Graham, and it is a great pleasure to work with him.
    Senator Graham. Thank you, Mr. Chairman.
    You have been terrific. It has been one of the few 
bipartisan areas left in the Senate, if I could put it that 
way. [Laughter.]
    Senator Webb. I would like to again thank all of you for 
your testimony today and for your continued service to our 
country. Again, I appreciate your having had the patience to 
wait for us, as we got a little bit of a late start.
    But thanks again. This is very valuable testimony not only 
for the Senators who were here, but a lot of staff work goes 
into this, a lot of thought goes in from digesting what came 
out of this testimony. So it has been very valuable to this 
committee, and I thank all of you.
    This hearing is adjourned.
    [Whereupon, at 4:00 p.m., the subcommittee adjourned.]

                                 
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