[Senate Hearing 113-320]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 113-320

     PENDING LEGISLATION REGARDING SEXUAL ASSAULTS IN THE MILITARY

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

                                HEARING

                               before the

                      COMMITTEE ON ARMED SERVICES
                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              JUNE 4, 2013

                               __________

         Printed for the use of the Committee on Armed Services





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                      COMMITTEE ON ARMED SERVICES

                     CARL LEVIN, Michigan, Chairman

JACK REED, Rhode Island              JAMES M. INHOFE, Oklahoma
BILL NELSON, Florida                 JOHN McCAIN, Arizona
CLAIRE McCASKILL, Missouri           JEFF SESSIONS, Alabama
MARK UDALL, Colorado                 SAXBY CHAMBLISS, Georgia
KAY R. HAGAN, North Carolina         ROGER F. WICKER, Mississippi
JOE MANCHIN III, West Virginia       KELLY AYOTTE, New Hampshire
JEANNE SHAHEEN, New Hampshire        DEB FISCHER, Nebraska
KIRSTEN E. GILLIBRAND, New York      LINDSEY GRAHAM, South Carolina
RICHARD BLUMENTHAL, Connecticut      DAVID VITTER, Louisiana
JOE DONNELLY, Indiana                ROY BLUNT, Missouri
MAZIE K. HIRONO, Hawaii              MIKE LEE, Utah
TIM KAINE, Virginia                  TED CRUZ, Texas
ANGUS KING, Maine

                    Peter K. Levine, Staff Director

                John A. Bonsell, Minority Staff Director

                                  (ii)










                            C O N T E N T S

                               __________

                    CHRONOLOGICAL LIST OF WITNESSES

     Pending Legislation Regarding Sexual Assaults in the Military

                              june 4, 2013

                                                                   Page

Dempsey, GEN Martin E., USA, Chairman of the Joint Chiefs of 
  Staff; Accompanied by BG Richard C. Gross, USA, Legal Counsel 
  to the Chairman of the Joint Chiefs of Staff...................    10
Odierno, GEN Raymond T., USA, Chief of Staff of the Army; 
  Accompanied by LTG Dana K. Chipman, JAGC, USA, Judge Advocate 
  General of the U.S. Army.......................................    12
Greenert, ADM Jonathan W., USN, Chief of Naval Operations; 
  Accompanied by VADM Nanette M. Derenzi, JAGC, USN, Judge 
  Advocate General of the U.S. Navy..............................    23
Amos, Gen. James F., USMC, Commandant of the Marine Corps; 
  Accompanied by Maj. Gen. Vaughn A. Ary, USMC, Staff Judge 
  Advocate to the Commandant of the Marine Corps.................    31
Welsh, Gen. Mark A., III, USAF, Chief of Staff of the Air Force; 
  Accompanied by Lt. Gen. Richard C. Harding, JAGC, USAF, Judge 
  Advocate General of the U.S. Air Force.........................    42
Papp, ADM Robert J., Jr., USCG, Commandant of the Coast Guard; 
  Accompanied by RADM Frederick J. Kenney Jr., USCG, Judge 
  Advocate General of the U.S. Coast Guard.......................    49
Martin, COL Donna W., USA, Commander, 202nd Military Police Group   127
Coughlin, CAPT Stephen J., USN, Commodore, Destroyer Squadron Two   128
King, Col. Tracy W., USMC, Commander, Combat Logistics Regiment 
  15.............................................................   130
Leavitt, Col. Jeannie M., USAF, Commander, 4th Fighter Wing......   131
Parrish, Ms. Nancy, President, Protect Our Defenders.............   163
Bhagwati, Ms. Anu, Executive Director and Co-Founder, Service 
  Women's Action Network.........................................   180
Altenburg, MG John D., Jr., USA, Retired, Chairman, American Bar 
  Association Standing Committee on Armed Forces Law.............   185
Morris, COL Lawrence J., USA, Retired, General Counsel, Catholic 
  University.....................................................   187

                                 (iii)

 
     PENDING LEGISLATION REGARDING SEXUAL ASSAULTS IN THE MILITARY

                              ----------                              


                         TUESDAY, JUNE 4, 2013

                                       U.S. Senate,
                               Committee on Armed Services,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:35 a.m., in 
room SH-216, Hart Senate Office Building, Senator Carl Levin 
(chairman) presiding.
    Committee members present: Senators Levin, Reed, Nelson, 
McCaskill, Udall, Hagan, Manchin, Shaheen, Gillibrand, 
Blumenthal, Donnelly, Hirono, Kaine, King, Inhofe, McCain, 
Sessions, Chambliss, Wicker, Ayotte, Fischer, Graham, Blunt, 
and Cruz.
    Committee staff members present: Peter K. Levine, staff 
director; Travis E. Smith, chief clerk; and Leah C. Brewer, 
nominations and hearings clerk.
    Majority staff members present: Jonathan D. Clark, counsel; 
Jonathan S. Epstein, counsel; Gabriella E. Fahrer, counsel; and 
Gerald J. Leeling, general counsel.
    Minority staff members present: John A. Bonsell, minority 
staff director; Steven M. Barney, counsel; William S. Castle, 
general counsel; Samantha L. Clark, associate counsel; Allen M. 
Edwards, professional staff member; Anthony J. Lazarski, 
professional staff member; Daniel A. Lerner, professional staff 
member; and Natalie M. Nicolas, staff assistant.
    Staff assistants present: Jennifer R. Knowles, Kathleen A. 
Kulenkampff, and John L. Principato.
    Committee members' assistants present: Carolyn Chuhta, 
assistant to Senator Reed; Jeff Fatora, assistant to Senator 
Nelson; Jason Rauch, assistant to Senator McCaskill; Casey 
Howard, assistant to Senator Udall; Christopher Cannon, 
assistant to Senator Hagan; Mara Boggs, assistant to Senator 
Manchin; Chad Kreikemeier, assistant to Senator Shaheen; Moran 
Banai, Brook Gesser, Brooke Jamison, and Kathryn Parker, 
assistants to Senator Gillibrand; Ethan Saxon, assistant to 
Senator Blumenthal; Marta McLellan Ross, assistant to Senator 
Donnelly; Nick Ikeda, assistant to Senator Hirono; Karen 
Courington, assistant to Senator Kaine; Steve Smith, assistant 
to Senator King; Paul C. Hutton IV and Elizabeth Lopez, 
assistants to Senator McCain; Lenwood Landrum, assistant to 
Senator Sessions; Todd Harmer, assistant to Senator Chambliss; 
Joseph Lai, assistant to Senator Wicker; Brad Bowman, assistant 
to Senator Ayotte; Peter Schirtzinger, assistant to Senator 
Fischer; Craig Abele, assistant to Senator Graham; Charles 
Prosch, assistant to Senator Blunt; and Jeremy Hayes, assistant 
to Senator Cruz.

       OPENING STATEMENT OF SENATOR CARL LEVIN, CHAIRMAN

    Chairman Levin. Good morning, everybody. The committee 
meets today to receive testimony on pending legislation 
regarding sexual assaults in the military.
    Before we begin our hearing, we note with sadness the 
passing of our friend Frank Lautenberg, who was the last World 
War II veteran serving in the Senate.
    Seven bills relating to sexual assault have been introduced 
in the Senate beginning in March and are now pending before the 
committee.
    Senate bill 538, introduced by Senator McCaskill and others 
on March 12th.
    Senate bill 548, introduced by Senator Klobuchar and others 
on March 13th.
    Senate bill 871, introduced by Senator Murray and others on 
May 7th.
    Senate bill 964, introduced by Senator McCaskill and others 
on May 15th.
    Senate bill 967, introduced by Senator Gillibrand and 
others on May 16th.
    Senate bill 992, introduced by Senator Shaheen and others 
on May 21st.
    Senate bill 1041, introduced by Senator Blumenthal on May 
23rd.
    More than 40 Senators have sponsored or cosponsored one or 
more of these bills. There is good reason for this legislative 
activity. The problem of sexual assault is of such scope and 
magnitude that it has become a stain on our military.
    Last year, for the fourth year in a row, there were more 
than 3,000 reported cases of sexual assault in the military, 
including 2,558 unrestricted reports and an additional 816 
restricted reports. Restricted meaning that in accordance with 
the victim's request, they were handled in a confidential 
manner and not investigated.
    A recent survey conducted by the Department of Defense 
(DOD) indicates that the actual number of sexual offenses could 
be considerably higher, as 6.1 percent of active duty women and 
1.2 percent of active duty men surveyed reported having 
experienced an incident of unwanted sexual contact in the 
previous 12 months.
    Even one case of sexual assault in the military is one too 
many. No one who volunteers to serve our country should be 
subjected to this kind of treatment by those with whom they 
serve. The problem is made much worse when the system fails to 
respond as it should, with an aggressive investigation that 
brings the perpetrators to justice.
    The recent documentary ``The Invisible War'' has provided 
tragic and heartbreaking examples of some of these system 
failures. Every member of this committee wants to drive sexual 
assault out of the military. The question for us is how can we 
most effectively achieve this objective?
    We have previously--in some cases as recently as last 
year's National Defense Authorization Act (NDAA)--taken a 
number of steps to address the problem of sexual assault in the 
military to ensure the aggressive investigation and prosecution 
of sexual offenses and to provide victims of sexual assault the 
assistance and support that they need and should have.
    For example, in the area of training, we have required 
sexual assault training for servicemembers at each level of 
military education, sexual assault training of new recruits 
within the first 2 weeks after entrance on active duty, and 
enhanced training for new and prospective commanders.
    In the area of prevention, we have required regular 
assessments of command climate and regular surveys of gender 
relations, and we have prohibited the military from granting 
waivers to individuals with criminal convictions for sexual 
offenses to allow them to serve in the military.
    In the area of victim protection, we have established 
requirements for legal assistance for victims of sexual 
assault, provided for expedited transfers for victims of sexual 
assault, and required general or flag officer review of any 
involuntary separation of a victim of sexual assault when 
requested by the victim to ensure that the victim is not 
victimized a second time.
    In the area of reporting, we have authorized restricted 
reporting of sexual assaults that enables victims to maintain 
confidentiality when they choose to do so. We have required 
that each brigade or equivalent unit have its own full-time 
trained and qualified Sexual Assault Response Coordinator 
(SARC) and sexual assault victim advocate. We have established 
strong recordkeeping requirements for reports of sexual 
assault.
    In the area of investigation, prosecution, and penalties, 
we have required DOD investigative agencies establish special 
capabilities for investigating and prosecuting sexual offenses, 
and we have required that any servicemember convicted of a 
sexual offense be processed for administrative separation when 
the court-martial punishment does not include a discharge.
    Some of these steps being recent, their effectiveness is 
not yet determined. But we know more needs to be done. The 
bills now before the committee propose a wide variety of 
additional actions for us to consider.
    These include the following: amending the Uniform Code of 
Military Justice (UCMJ) to limit the authority of a convening 
authority to modify the findings and sentence of a court-
martial, requiring that special victims' counsel be provided to 
victims of sexual assault, as the Air Force has been doing on a 
test basis since January.
    Bills before us would put into statute the existing 
regulatory requirement that commanders who receive reports of 
sexual misconduct offenses submit them to criminal 
investigators.
    Bills before us would require commanders who receive 
reports of such sexual misconduct to submit them to the next 
higher officer in the chain of command, would direct the 
Secretary of Defense to establish a separate legal authority 
outside the chain of command to determine whether and how to 
proceed with a case. That would take the place of the 
commander, who now serves as the initial disposition authority 
under current law.
    Bills before us would amend the UCMJ to establish a 
separate convening authority outside the chain of command to 
appoint courts-martial for serious offenses.
    Bills before us would modify the manual for courts-martial 
to remove the character of the accused as one of the factors to 
be considered in deciding how to proceed with a case and would 
require that all substantiated sexual-related offenses be noted 
in the personnel records of the offender.
    Now as important as some of these additional protections 
and procedural changes may be, we cannot successfully address 
this problem without a culture change throughout the military. 
Discipline is the heart of the military culture, and trust is 
its soul. The plague of sexual assault erodes both the heart 
and the soul.
    We expect our men and women in uniform to be brothers and 
sisters in arms, to be prepared to take care of each other in 
the toughest of situations in the face of the enemy. That 
requires a level of trust that is rarely matched in civilian 
life, trust sufficient that our soldiers, sailors, airmen, 
marines, and Coast Guard personnel are ready to put their lives 
in their comrades' hands.
    That trust is violated when one servicemember sexually 
assaults another and can only be restored when we have 
decisively restored discipline and addressed this plague.
    The key to cultural change in the military is the chain of 
command. The Military Services are hierarchical organizations. 
The tone is set from the top of that chain. The message comes 
from the top, and accountability rests at the top.
    But addressing a systemic problem like sexual assault 
requires action by all within that chain and especially by the 
commanders of the units. Only the chain of command can 
establish a zero tolerance policy for sexual offenses. Only the 
chain of the command has the authority needed to end problems 
with command climate that foster or tolerate sexual assaults.
    Only the chain of command can protect victims of sexual 
assaults by ensuring that they are appropriately separated from 
the alleged perpetrators during the investigation and 
prosecution of a case. Only the chain of command can be held 
accountable if it fails to change an unacceptable military 
culture.
    The chain of command has achieved cultural change before. 
For example, two generations ago when we faced problems with 
racial dissension in the military and, more recently, with the 
change to the ``don't ask, don't tell'' policy. The chain of 
command can do it again.
    The men and women of our military deserve no less. Our sons 
and daughters contemplating a career in the military and their 
parents also deserve that commitment.
    We have today three panels of witnesses to help us in our 
review of these issues. We have asked each of them for their 
views on the bills that are before us. We are very appreciative 
of their presence here today.
    I will introduce our first panel after Senator Inhofe makes 
his opening statement.
    Senator Inhofe.

              STATEMENT OF SENATOR JAMES M. INHOFE

    Senator Inhofe. Thank you, Mr. Chairman.
    Today, we will address the legal and moral foundation of 
our Nation's military readiness, the UCMJ. Under the 
Constitution, Congress has the unique responsibility to make 
rules to govern and regulate our military. This responsibility 
is particularly important as we evaluate the effectiveness of 
the UCMJ in the context of combating sexual assault.
    Last year, we created the Independent Panel to Review the 
UCMJ and Judicial Proceedings of Sexual Assault Cases, under 
section 576 of the NDAA for Fiscal Year 2013. This panel was 
tasked with assessing the response systems used to investigate, 
prosecute, and adjudicate crimes involving sexual assault and 
related offenses, and to develop recommendations on how to 
improve the effectiveness of those systems. The work of that 
commission, as I said yesterday on the Senate floor, has only 
just begun, and we have to allow it an opportunity to do what 
it was created to do.
    Over the last decade, Congress has passed a number of laws 
to better equip the Services to combat sexual assault, 
including 10 provisions in last year's NDAA alone. I am not 
going to read those and I ask that they be included in the 
record as part of my statement.
    Chairman Levin. They will be.
    [The information referred to follows:]
  subtitle h--improved sexual assault prevention and response in the 
                              armed forces
    Sec. 570. Armed Forces Workplace and Gender Relations Surveys.
    Sec. 571. Authority to retain or recall to Active Duty Reserve 
component members who are victims of sexual assault while on active 
duty.
    Sec. 572. Additional elements in comprehensive Department of 
Defense policy on sexual assault prevention and response.
    Sec. 573. Establishment of special victim capabilities within the 
military departments to respond to allegations of certain special 
victim offenses.
    Sec. 574. Enhancement to training and education for sexual assault 
prevention and response.
    Sec. 575. Modification of annual Department of Defense reporting 
requirements regarding sexual assaults.
    Sec. 576. Independent reviews and assessments of Uniform Code of 
Military Justice and judicial proceedings of sexual assault cases.
    Sec. 577. Retention of certain forms in connection with Restricted 
Reports on sexual assault at request of the member of the Armed Forces 
making the report.
    Sec. 578. General or flag officer review of and concurrence in 
separation of members of the Armed Forces making an Unrestricted Report 
of sexual assault.
    Sec. 579. Department of Defense policy and plan for prevention and 
response to sexual harassment in the Armed Forces.

    Senator Inhofe. Our commanders haven't had time right now 
to implement the most recent changes, and some think we need to 
change things again. I guess what I am saying here is we have 
made these suggestions. We have 10 changes that are out there 
that we are evaluating right now. They are doing it as we 
speak, Mr. Chairman, and they have time to get this done.
    As we consider additional changes to the law in this year's 
NDAA, we should keep three things in mind. First, and 
fundamentally, we cannot abolish sexual assault by legislation 
alone. As you point out, eliminating sexual assault requires 
commanders to drive cultural change and achieve accountability.
    Second, we must allow our commanders an opportunity to 
address those recent changes in the law and to monitor and 
assess their effectiveness.
    Third, while I share Chairman Levin's concerns that we 
should not delay considering things that could make immediate, 
positive changes, I strongly believe that we must be deliberate 
in making fundamental changes to the UCMJ. I have had several 
confidential conversations with other members. That is a 
general agreement.
    There is a risk of unintended consequences if we act in 
haste without thorough and thoughtful review. Rushing to change 
the law, yet again, could prove counterproductive to our 
ultimate objective of providing a sound, effective, efficient, 
and fair military justice system.
    Over the past few weeks, several of my colleagues have 
introduced bills that propose significant changes to the UCMJ. 
I thank them for their commitment in combating sexual assault 
in the military and look forward to working collaboratively 
with them on these efforts. I am opposed to any provision that 
would remove commanders from their indispensable role in the 
military justice.
    One of the things, as Senator Ayotte has been talking 
about, is to maintain this authority in the commanders and even 
advance that to a higher command. We must remember that the 
military is, by necessity, uniquely separate from the civilian 
society. Military Service requires those who serve to give up 
certain rights and privileges that civilians enjoy. Those of us 
who have been in the military understand that.
    Those who volunteer to serve must, at times, subordinate 
their will to that of the commanders appointed over them, under 
the authority of the Constitution and the UCMJ. The UCMJ forms 
the foundation of command authority and military readiness.
    Sexual assault is an enemy to morale and to readiness. But 
it is more than just that. It is an affront to the dignity of 
its victims. The men and women of our military must often 
tolerate arduous duty, separations from loved ones, and 
loneliness, but they must not tolerate sexual assault.
    Some have criticized our commanders and the military 
justice system because of a recent case in which a court-
martial was set aside. But if you take time and look at the 
statistics, you will see that commanders have only set aside 
findings of guilt in extraordinarily rare circumstances, in 
about 1 percent of the cases. Again, specific details are in my 
statement.
    There is also a suggestion that commanders haven't done a 
good job of preserving good order and discipline, or 
effectively overseeing the conduct of their forces. But the 
record does not reflect this.
    The Defense Legal Policy Board released a report on 
military justice in combat zones just last week. This is brand 
new. A lot of us haven't had a chance to look at this yet. I am 
encouraged that the main theme of the Defense Legal Policy 
Board report validates my longstanding position concerning the 
central role of the joint commander in the administration of 
justice in deployed theaters of operations.
    It states, and I quote, ``While good order and discipline 
is important and essential to any military environment, it is 
especially vital in the deployed environment. The military 
justice system is the definitive commanders' tool to preserve 
good order and discipline, and nowhere is this more important 
than in a combat zone.''
    Further, still quoting, ``A breakdown of good order and 
discipline while deployed can have a devastating effect on 
mission effectiveness. The joint commander is ultimately 
responsible for the conduct of his forces. As such, the 
subcommittee has determined that the joint commander must have 
the authority and apparatus necessary to preserve good order 
and discipline through the military justice system.''
    My request is for you to respond to this to see if there is 
general agreement to this statement, which I have just quoted 
that just came out last week.
    Just how critical this military justice system is to our 
commanders is demonstrated by the frequency of its use. This 
report states that since 2001, the Army alone has conducted 
over 800 courts-martial in deployed environments. The Navy and 
Marine Corps conducted 8 courts-martial in Afghanistan and 34 
in Iraq. The Air Force conducted three courts-martial in Iraq 
and three in Afghanistan.
    We must never take this vital readiness tool from our 
commanders. It is vitally important that we make sexual assault 
culturally unacceptable, as the chairman said, in our military. 
But no change is possible without commanders as agents of that 
change.
    Mr. Chairman, I look forward to this hearing.
    [The prepared statement of Senator Inhofe follows:]

             Prepared Statement by Senator James M. Inhofe
    I thank Chairman Levin for convening this important hearing.
    Today, we will address the legal and moral foundation of our 
Nation's military readiness, the Uniform Code of Military Justice 
(UCMJ). Under the Constitution, Congress has the unique responsibility 
to make rules to govern and regulate our military. This responsibility 
is particularly important as we evaluate the effectiveness of the UCMJ 
in the context of combating sexual assault.
    Last year we created the Independent Panel to Review the UCMJ and 
Judicial Proceedings of Sexual Assault Cases, under section 576 of the 
National Defense Authorization Act (NDAA) for Fiscal Year 2013. This 
panel was tasked with assessing the response systems used to 
investigate, prosecute and adjudicate crimes involving sexual assault 
and related offenses and to develop recommendations on how to improve 
the effectiveness of those systems. The work of that commission has 
only just begun and we must allow it the opportunity to do what it was 
created to do.
    Over the last decade, Congress has passed a number of laws to 
better equip the Services to combat sexual assault, including 10 
provisions in last year's NDAA alone. Those changes from the NDAA for 
Fiscal Year 2013 include the following:

         Section 523 eliminates accession waivers for 
        individuals convicted of felony sexual offenses, including 
        ``rape, sexual abuse and sexual assault.''
         Section 571 allows continuation of a member of the 
        Reserve component who is an alleged victim of sexual assault 
        while on active duty for the purpose of making a line of duty 
        determination.
         Section 572, requires the Secretary of Defense to 
        modify the revised comprehensive policy for the sexual assault 
        prevention and response program to establish additional 
        requirements to retain records of dispositions of allegations 
        of sexual assault; to require Services to establish policies to 
        require administrative discharge processing for individuals who 
        are convicted of rape, sexual assault and forcible sodomy whose 
        final approved punishment does not include a punitive 
        discharge; to conduct command climate assessments within 120 
        days of assuming command; and at least annually, for the 
        purpose of preventing and responding to sexual assaults, to 
        proactively provide information about resources available to 
        report and respond to sexual assaults; and to establish a 
        general education campaign to notify servicemembers of the 
        authorities available for correction of military records when a 
        member experiences any retaliatory personnel action for making 
        a report of sexual assault or sexual harassment.
         Section 573 requires the Secretary of Defense to 
        prescribe regulations for the Service Secretaries to establish 
        special victim support and defense capabilities for sexual 
        offenses and other offenses.
         Section 574 establishes enhanced commanders' training 
        for sexual assault prevention and response.
         Section 575 modifies annual Department of Defense 
        (DOD) reporting requirements regarding sexual assaults, to 
        include requiring case synopses if an individual is 
        administratively separated or allowed to resign in lieu of 
        court-martial; identify whether a member accused of committing 
        a sexual assault was ever previously accused of a substantiated 
        sexual assault or allowed to enter the service under a moral 
        waiver with respect to prior sexual misconduct, and a statement 
        of the nature of the punishment in cases where a sexual assault 
        case results in nonjudicial punishment.
         Section 576 established a panel to conduct and in-
        depth review and assessment of judicial proceedings under the 
        UCMJ, with focus on sexual assault and related offenses.
         Section 577 establishes retention requirements for 
        restricted reports of sexual assault.
         Section 578, requiring general or flag officer review 
        of proposed involuntary separation of any servicemember who 
        made an unrestricted report of sexual assault, recommended for 
        separation within 1 year of making the report, and where the 
        member believes the involuntary separation was initiated in 
        retaliation for making the report.
         Section 579 modifies DOD policy and plan for 
        prevention and response to sexual harassment.

    Our commanders haven't had enough time to implement the most recent 
changes and now some think we need to change things again. I think that 
would be a mistake to legislate initial demands on the Department and 
the Services until they have had an opportunity to assess the 
effectiveness of these recent legislative requirements.
    As we consider additional changes to the law in this year's 
National Defense Authorization Act, we should keep three things in 
mind: First, and fundamentally, we cannot abolish sexual assault by 
legislation alone. Eliminating sexual assault requires commanders to 
drive cultural change and achieve accountability. Second, we must allow 
our commanders an opportunity to address those recent changes in the 
law and to monitor and assess their effectiveness. Third, while I share 
Chairman Levin's concerns that we should not delay considering things 
that could make immediate, positive changes, I strongly believe we must 
be deliberate in making fundamental changes to the UCMJ. There is a 
risk of unintended consequences if we act in haste without thorough and 
thoughtful review. Rushing to change the law yet again could prove 
counterproductive to our ultimate objective of providing a sound, 
effective, efficient and fair military justice system.
    Over the past few weeks, several of my colleagues have introduced 
bills that propose significant changes to the UCMJ. I thank them for 
their commitment to combating sexual assault in the military and look 
forward to working collaboratively with them on these efforts. But I'm 
opposed to any provision that would remove commanders from their 
indispensable role in the military justice process.
    As we take up our responsibility we must not forget that the 
military is, by necessity, uniquely separate from the civilian society. 
Military service requires those who serve to give up certain rights and 
privileges that civilians enjoy. Those who volunteer to serve must, at 
times, subordinate their will to that of the commanders appointed over 
them, under the authority in the Constitution and the UCMJ.
    The UCMJ forms the foundation of command authority and military 
readiness. The Supreme Court observed that the Armed Forces depend on a 
command structure that at times must send forces into combat, not only 
at risk to their lives but ultimately involving the security of the 
Nation itself. Such a command structure cannot exist and cannot succeed 
without commanders. Our Nation entrusts our commanders to lead our 
forces to fight and win our Nation's wars. Those commanders voluntarily 
take an oath to defend the United States against all enemies, foreign 
and domestic. Sexual assault is such an enemy to morale and readiness. 
But it is more than that: it is an affront to the dignity of those who 
are its victims. The men and women of our military must often tolerate 
arduous duty, separations from loved ones, and loneliness. But they 
must not tolerate sexual assault.
    Some have criticized our commanders and the military justice system 
because of a recent case in which a court-martial was set aside. But if 
you take time to look at the statistics you will see commanders have 
only set aside findings of guilt in extraordinarily rare circumstances, 
about 1 percent of cases. Specifically:

         Marine commanders only set aside findings in 7 cases 
        out of 1,768 or 0.4 percent from 2010 to 2012.
         Air Force commanders only set aside findings in 40 of 
        3,713 cases over 5 years. That is 1.1 percent.
         Army commanders set aside findings in only 68 of 4,603 
        cases since 2008, or about 1.4 percent
         Navy says its commanders only set aside findings in 4 
        of the 16,056 cases they have tried from 2002 to 2012. That 
        would be 0.0001 percent.

    There is a suggestion that commanders haven't done a good job of 
preserving good order and discipline or effectively overseeing the 
conduct of their forces. But the record does not reflect this. The 
Defense Legal Policy Board released a report on military justice in 
combat zones just last week. I am encouraged that the main theme of the 
Defense Legal Policy Boards' report validates my longstanding position 
concerning the central role of the joint commander in the 
administration of justice in deployed theaters of operations. The 
following excerpt from this report is important as we consider 
legislation concerning military justice matters:
    While good order and discipline is important and essential in any 
military environment, it is especially vital in the deployed 
environment. The military justice system is the definitive commanders' 
tool to preserve good order and discipline, and nowhere is this more 
important than in a combat zone. A breakdown of good order and 
discipline while deployed can have a devastating effect on mission 
effectiveness. The Joint Commander is ultimately responsible for the 
conduct of his forces. As such the subcommittee has determined that the 
Joint Commander must have the authority and apparatus necessary to 
preserve good order and discipline through the military justice system.
    Just how critical this military justice system is to our commanders 
is demonstrated by the frequency of its use. This report states since 
2001, the Army alone has conducted over 800 courts-martial in deployed 
environments. The Navy and Marine Corps conducted 8 courts-martial in 
Afghanistan and 34 in Iraq, and the Air Force conducted 3 courts-
martial in Iraq and 3 in Afghanistan.
    We must never take this vital readiness tool from our commanders. 
It is vitally important that we make sexual assault culturally 
unacceptable in our military. But, no change is possible without 
commanders as agents of that change.
    I look forward to our witnesses' testimony today.

    Chairman Levin. Thank you very much, Senator Inhofe.
    We now welcome our first panel. General Martin E. Dempsey, 
Chairman of the Joint Chiefs of Staff and the legal counsel to 
the Chairman, Brigadier General Richard C. Gross.
    General Raymond T. Odierno, Army Chief of Staff, and 
Lieutenant General Dana K. Chipman, Judge Advocate General of 
the Army.
    Admiral Jonathan W. Greenert, Chief of Naval Operations, 
and Vice Admiral Nanette M. DeRenzi, Judge Advocate General of 
the Navy.
    General James F. Amos, Commandant of the Marine Corps, and 
Major General Vaughn A. Ary, Staff Judge Advocate to the 
Commandant of the Marine Corps.
    General Mark A. Welsh, Chief of Staff of the Air Force; 
Lieutenant General Richard C. Harding, Judge Advocate General 
of the Air Force.
    Admiral Robert J. Papp, Commandant of the Coast Guard, and 
Rear Admiral Frederick J. Kenney, Judge Advocate General of the 
Coast Guard.
    I have asked the witnesses on this panel for one opening 
statement per Service by the Service Chief, and we have asked 
all of our witnesses to limit their opening statements to 5 
minutes.
    I have asked General Odierno to take a little extra time to 
describe, in some detail, the current process in the Army for 
addressing allegations of serious offenses, including to whom a 
victim can report an offense, who is informed of the offense 
once it is reported, how they are informed, who conducts the 
investigation, who decides what offenses to charge, and who 
decides how to deal with the offenses, whether they are handled 
by court-martial or by some other means.
    I invite our other witnesses in other Services to include 
any clarifying remarks about the process in their own Service 
so that we can all understand how allegations are handled now 
and what could change if some of the proposed legislation under 
consideration by this committee is adopted.
    General Dempsey, again, we thank you and your colleagues 
for being here today, for your service to our Nation, and we 
will start with your opening statement.

       STATEMENT OF GEN MARTIN E. DEMPSEY, USA, CHAIRMAN 
         OF THE JOINT CHIEFS OF STAFF; ACCOMPANIED BY 
BG RICHARD C. GROSS, USA, LEGAL COUNSEL TO THE CHAIRMAN OF THE 
                     JOINT CHIEFS OF STAFF

    General Dempsey. Thank you, Chairman Levin, Ranking Member 
Inhofe, members of the committee. Thank you for this 
opportunity to discuss our commitment to eliminating sexual 
assault from the Armed Forces of the United States.
    The risks inherent to military service must never include 
the risk of sexual assault. It is a crime that demands 
accountability and consequences. It betrays the very trust on 
which our profession is founded.
    We are acting swiftly and deliberately to change a climate 
that has become a bit complacent. We know that lasting change 
begins by changing the behaviors that can lead to sexual 
assault. Therefore, we are taking a comprehensive approach that 
focuses on prevention, victim advocacy, investigation, 
accountability, and assessment. All is part of our solemn 
obligation to safeguard the health of the force.
    But we can and must do more to protect victims while 
preserving the rights of the accused, to prevent and respond to 
predatory and high-risk behaviors, and to ensure a dignified 
and respectful work environment. We remain open to every idea 
and option to accelerate meaningful institutional change.
    Legal reform can and should continue to be part of our 
campaign to end sexual assault. Like my fellow chiefs, I have 
been attentive to every piece of legislation. There are many 
reasonable recommendations on the table. In fact, I recently 
conveyed in writing to the chairman and to the ranking member 
my sincere interest in further considering many of them.
    For example, I see the merit in initiatives to prohibit 
those convicted of sexual assault from joining our ranks in the 
first place, to oblige administrative discharge for those 
convicted of sexual assault, to require commanders to report 
sexual offenses to the next higher commander in a prompt 
manner, and to increase transparency and accountability of 
commanders' actions and decisions.
    It is my expectation that the panel established under 
section 576 of the NDAA for Fiscal Year 2013 will take up these 
and many other initiatives, and we need it to fully assess all 
the options and all the potential consequences, both intended 
and unintended.
    As directed by Secretary Hagel, we need the panel to 
deliberate and to deliver on a more accelerated timeline. We 
won't be idle while giving time for this due diligence. We will 
be actively implementing my strategic direction on preventing 
sexual assault and DOD's new Sexual Assault Prevention and 
Response Plan.
    In addition to completing a force-wide stand-down by the 
1st of July, we are moving out on nearly 90 near-term actions 
to catalyze change. Over the next several months, we will 
assess units for command climate, conduct refresher training 
for response coordinators and victims' advocates, improve 
victim counsel and treatment, and much more. We welcome the 
opportunity to update you regularly on our progress.
    As we consider further reforms, the role of the commander 
should remain central. Our goal should be to hold commanders 
more accountable, not render them less able to help us correct 
the crisis.
    The commander's responsibility to preserve order and 
discipline is essential to effecting change. They punish 
criminals, and they protect victims when and where no other 
jurisdiction is capable of doing so or lawfully able to do so. 
Commanders are accountable for all that goes on in a unit, and 
ultimately, they are responsible for the success of the 
missions assigned to them.
    Of course, commanders and leaders of every rank must earn 
that trust and, therefore, to engender trust in their units. 
Most do. Most do not allow unit cohesion to mask an 
undercurrent of betrayal. Most rise to the challenge of 
leadership every day, even under the most demanding physical 
and moral circumstances.
    Our force has within it the moral courage to change course 
and reaffirm our professional ethos. Working together, we can 
and will restore trust within the force and with the American 
people.
    Thank you.
    [The prepared statement of General Dempsey follows:]
            Prepared Statement by GEN Martin E. Dempsey, USA
    Chairman Levin, Ranking Member Inhofe, members of the committee, 
thank you for giving us this opportunity to discuss our commitment to 
eliminating sexual assault from the Armed Forces of the United States.
    The risks inherent to military service should never include the 
risk of sexual assault. Sexual assault is a crime that demands 
accountability and consequences. It betrays the very trust on which our 
profession is founded.
    The Joint Chiefs and our Senior Enlisted Leaders are committed to 
correcting this crisis. We are acting swiftly and deliberately to 
change a culture that has become too complacent. We know that lasting 
change begins by changing the behaviors that lead to sexual assault.
    The Joint Chiefs have spent the last year leading a campaign 
focused on prevention, investigation, accountability, advocacy, and 
assessment--all as part of our enduring commitment to the health of the 
force. The additional actions recently directed by Secretary of Defense 
Hagel serve to strengthen our efforts.
    We can and must do more. We must protect victims while preserving 
the rights of the accused. We must prevent and respond to predatory and 
high-risk behaviors. We must ensure a professional work environment 
predicated on dignity and respect.
    We must be open to every idea and option to accelerate meaningful, 
institutional change.
    Legal reform has been and should continue to be part of this 
campaign. Previously, we elevated initial disposition authority in 
certain cases to O-6 commanders with Special Court-Martial Convening 
Authority. More recently, I endorsed Secretary Hagel's proposed 
amendments to Article 60 of the Uniform Code of Military Justice.
    Should further reform be needed, I urge that military commanders 
remain central to the legal process. The commander's ability to 
preserve good order and discipline remains essential to accomplishing 
any change within our profession. Reducing command responsibility could 
adversely affect the ability of the commander to enforce professional 
standards and ultimately, to accomplish the mission.
    Of course, commanders and leaders of every rank must earn trust to 
engender trust in their units. Most do. Most do not allow unit cohesion 
to mask an undercurrent of betrayal. Most rise to the challenge of 
leadership even under the most demanding physical and moral 
circumstances.
    Our men and women in uniform have within them the moral courage 
needed to change course and reaffirm our professional ethos. Working 
together, we can and will restore trust within our Force and with the 
American people. Thank you.

    Chairman Levin. Thank you very much, General Dempsey.
    Now let me call on General Odierno.

STATEMENT OF GEN RAYMOND T. ODIERNO, USA, CHIEF OF STAFF OF THE 
  ARMY; ACCOMPANIED BY LTG DANA K. CHIPMAN, JAGC, USA, JUDGE 
               ADVOCATE GENERAL OF THE U.S. ARMY

    General Odierno. Thank you, Chairman Levin, Ranking Member 
Inhofe, and other distinguished members of the committee, for 
allowing us to testify today.
    As we all know, today the Army has a serious problem. We 
are failing in our efforts to fully protect our people from 
sexual assault and sexual harassment.
    As the Chief of Staff of the Army, as a former commander of 
forces at every level, and as a parent of two sons and a 
daughter, the crimes of sexual assault and sexual harassment 
cut to the core of what I care most about, the health and 
welfare of American sons and daughters. These crimes violate 
everything our Army stands for, and they simply cannot be 
tolerated.
    Our military profession is built on the bedrock of trust, 
the trust that must inherently exist among soldiers and between 
soldiers and their leaders in order to accomplish the difficult 
mission in the chaos of war. Recent incidents of sexual assault 
and harassment demonstrate that we have violated that trust 
because we have failed to address these crimes in a 
compassionate, just, and comprehensive way.
    Two weeks ago, I told my commanders that combating sexual 
assault and sexual harassment within our ranks is our number-
one priority. I said that because, as chief, my mission is to 
train and prepare our soldiers for war.
    These crimes cut to the heart of the Army's readiness for 
war. They destroy the very fabric of our force, soldier and 
unit morale. We will fix this problem.
    Our actions now and in the future will be guided by five 
imperatives. First, we must prevent potential offenders from 
committing sexual crimes. But when a crime has been committed, 
we must provide compassionate care and protect the rights of 
survivors.
    Second, every allegation of sexual assault and harassment 
must be professionally investigated and appropriate action 
taken.
    Third, we must create a climate and an environment in which 
every person is able to thrive and achieve their full potential 
without concern of retaliation or stigma if they report a 
crime.
    Fourth, it is imperative that all entities understand their 
responsibilities--individuals, units, and organizations--and 
specifically, commanders and leaders. We expect them to create 
an environment and uphold standards consistent with our Army's 
and our Nation's values. If not, they will be held accountable.
    Fifth, it is imperative that the chain of command is fully 
engaged and at the center of any solution to combat sexual 
assault and sexual harassment. Command authority is the most 
critical mechanism for ensuring discipline, accountability, and 
unit cohesion.
    Our military justice system was deliberately designed to 
give commanders the tools to reinforce good order by 
prosecuting misconduct with a variety of judicial and 
nonjudicial punishments so that commanders can not only 
prosecute crimes, but also punish minor infractions that 
contribute to indiscipline.
    The UCMJ allows us to punish misconduct on any scale 
quickly, visibly, and locally anywhere in the world, but it is 
clear we must implement a system of checks and balances to 
ensure our commanders and their legal advisers reinforce one 
another's mutual responsibilities to administer the UCMJ.
    Military commanders have a far wider range of options 
available to them than civilian law enforcement, from four 
levels of court-martial, nonjudicial punishment, administrative 
discharge, and nonpunitive measures. These options allow 
commanders to address the entire spectrum of sexual misconduct 
from verbal harassment up to and including rape.
    It allows commanders to prosecute multiple crimes at the 
same time, sexual or otherwise, which is essential to the 
commander's effort to build the right climate within a unit. It 
allows commanders to prosecute crimes with the full backing of 
the U.S. Army.
    Take the recent example of a victim who was sexually 
assaulted by a soldier off post in Colorado. Civilian law 
enforcement conducted an initial investigation but determined 
they did not have enough sufficient resources to investigate or 
prosecute the case.
    The local commander directed Army Criminal Investigation 
Division (CID) to further investigate this dormant case. They 
uncovered three additional victims that were sexually assaulted 
or battered by the accused in several locations across Colorado 
and Texas. The soldier's chain of command referred the case to 
court-martial, where the accused was convicted of numerous 
sexual assault offenses and sentenced to 35 years and a 
dishonorable discharge.
    This case illustrates the flexibility of UCMJ to prosecute 
multiple crimes committed across multiple civilian 
jurisdictions. If the commander had been removed from this, his 
or her central role in administering justice for sexual assault 
case, it could have prevented justice in this particular case.
    If I believed that removing commanders from their central 
role of responsibility in addressing sexual assault would solve 
these crimes within our ranks, I would be your strongest 
proponent. But removing commanders, making commanders less 
responsible and less accountable will not work.
    It will undermine the readiness of the force. It will 
inhibit our commanders' ability to shape the climate and 
discipline of our units. Most importantly, it will hamper the 
timely delivery of justice to the very people we wish to help, 
the victims and survivors of these horrific crimes.
    Let me just take a few moments to explain how the Army 
responds to a sexual assault. Our process consists of five 
basic elements.
    First, the Army offers victims two options for reporting: a 
restricted report, which allows a victim to access counselors, 
medical support, and legal services; and an unrestricted 
report, which triggers an independent law enforcement 
investigation.
    There are nine ways a victim can make an unrestricted 
report outside of the chain of command: to uniformed or 
civilian victim advocates, uniformed or civilian SARCs, 
military or civilian law enforcement to include 911 calls, 
military or civilian hospital staff, chaplains, the Office of 
the Inspector General, Judge Advocates, hotlines managed by DOD 
and local installations, and several Web sites for online 
reporting.
    Following a report, victims are assigned a victim advocate 
and are offered legal services. Commanders are also required to 
protect the care of victims. They must transfer a victim to 
another unit, if requested; keep the victim informed monthly on 
the status of the investigation; and offer support services to 
ensure both victim and unit safety.
    Second, every sexual assault allegation must be subject to 
a thorough investigation. Every allegation must be investigated 
by the CID, the Army's felony-level detectives. Our CID agents 
do not work for the commander, and commanders cannot shape or 
advise an investigation.
    Third, Judge Advocates, including special victim 
prosecutors which were implemented in 2009, provide legal 
advice to the investigators and the commanders. They must track 
every allegation and are responsible for protecting the rights 
of victims.
    When an investigation is complete, a Judge Advocate 
provides a legal opinion on whether an allegation should be 
founded or unfounded based upon the evidence presented. An 
unfounded allegation becomes part of the permanent record, 
while an allegation that is founded is brought to the commander 
to consider the options available.
    Fourth, every allegation must be tracked on a daily crime 
blotter, through the installation's Monthly Sexual Assault 
Review Board, and is provided to Congress in an annual report 
on sexual assault in the military.
    Fifth, the disposition of these cases is reserved for 
senior commanders with the advice of the Judge Advocate. The 
relationship between the commander and legal adviser is unique. 
The commander has the authority to decide the case disposition, 
while Article 34 UCMJ requires the Judge Advocate to provide 
written advice before charges may be referred to a court-
martial.
    If a Judge Advocate encounters a commander unwilling to 
follow his or her advice to take an allegation to trial, the 
Judge Advocate may elevate the case through Judge Advocate 
channels or to the next superior commander.
    Although the Army's process for reporting disposition of 
victim care provides a sound base and although the UCMJ 
provides the commander a powerful tool to shape climate and 
impose discipline, it is obvious that it hasn't been working 
correctly to prevent and prosecute sexual crimes in the Army. I 
am aware of a number of legislative proposals that contemplate 
changes to the role of the commander and to the UCMJ. I welcome 
candid and vigorous discussion about how we can improve our 
military justice system.
    In my written testimony, I offer a number of suggestions on 
how we can improve the UCMJ and DOD policy. My experience leads 
me to believe that the majority of problems we are seeing are 
not the results of failures within our military justice system, 
but rather the failure of some commanders and leaders to 
administer that system correctly, to act in compliance with the 
UCMJ, or current DOD policies.
    We must take a hard look at our system from start to finish 
to ensure that commanders and Judge Advocates are subject to 
appropriate checks and balances, all while protecting the 
interests of the victim and due process rights of accused 
soldiers. I propose a number of such checks and balances in my 
written statement.
    If we find these checks and balances to be insufficient and 
determine that changes to the UCMJ are required, we must move 
in a very deliberate fashion to preserve what is good with the 
system while correcting inadequacies. I am in full support of a 
response systems panel to determine what changes should be made 
to law and policy.
    I understand that the credibility of the Armed Forces and 
the credibility of the Army are at stake, but we cannot simply 
legislate our way out of this problem. Without equivocation, I 
believe maintaining the central role of commander in our 
military justice system is absolutely critical to any solution.
    The Army and the military, working with Congress, have 
contributed to positive social changes throughout our Nation's 
history, from racial integration through repeal of ``don't ask, 
don't tell.'' Although we have struggled in our efforts to get 
these issues right in the beginning, we always worked through 
them until we got it right, and commanders were essential to 
that success.
    Sexual assault and sexual harassment are no different. We 
can and will do better. We must take deliberate steps to change 
the environment. We must restore our people's confidence by 
improving our system of accountability.
    It is up to every one of us--civilian, soldier, general 
officer, to private--to solve this problem within our ranks. 
Over the last 12 years of war, our Army has demonstrated 
exceptional competence, courage, and resiliency in adapting the 
force to the demands of war. We will take on this problem and 
adapt as well and with the same resolve, we will fix it.
    Thank you, Mr. Chairman and distinguished members of the 
committee, for the opportunity to speak with you today.
    [The prepared statement of General Odierno follows:]
           Prepared Statement by GEN Raymond T. Odierno, USA
    Thank you, Chairman Levin, Ranking Member Inhofe, and other 
distinguished members of the committee for allowing us to testify 
today.
    It is clear to me that the Department of Defense and specifically 
the Army has a serious problem. We have failed in our efforts to date 
to fully protect our soldiers, civilians, and family members from 
sexual assault and sexual harassment within our ranks. Sexual assault 
and harassment are like a cancer within the force--a cancer that left 
untreated will destroy the fabric of our force. It's imperative that we 
take a comprehensive approach to prevent attacks, to protect our 
people, and where appropriate, to prosecute wrongdoing and hold people 
accountable. This is about inculcating a culture that is in line with 
our Army values, specifically treating all with dignity and respect.
    In 1976, I entered into an Army that was rife with disciplinary 
problems across the force. Over the course of my 37-year career, I have 
commanded at every level, including division, corps, and theater 
command in combat. I know what it takes to prepare this Nation's sons 
and daughters for war and the discipline that must exist at every level 
of command to ensure an effective fighting force. As the Chief of Staff 
of the Army, as a commander of forces at every level, and as a parent 
of two sons and a daughter, sexual assault and harassment cut to the 
core of what I care most about--the health and welfare of America's 
sons and daughters.
    Our profession is built on the bedrock of trust--the trust that 
must inherently exist among soldiers, and between soldiers and their 
leaders to accomplish their mission in the chaos of war. Recent 
incidents of sexual assault and sexual harassment demonstrate that we 
have violated that trust. In fact, these acts violate everything our 
Army stands for and they will not be tolerated.
    On May 16, I sent a message to our 1.1 million soldiers and 266,000 
Department of the Army civilians via email and several social media 
channels to address the issue of sexual assault and harassment within 
our ranks. Since its release, I have been taken aback by the emotional 
responses I have received--hundreds of messages from victims, from 
sexual assault response coordinators, and from leaders about their 
personal experiences dealing with sexual assault and harassment. It is 
clear that we have lost the confidence of some of our people because we 
have failed them--we have failed to address previous incidents in a 
just, compassionate, and comprehensive way.
    In a video conference with Army commanders on May 17, I told my 
commanders that combating sexual assault and sexual harassment within 
our ranks is now the Army's #1 priority. The actions we will take to 
get after this problem will be guided by five imperatives.
    First, we must prevent potential offenders from committing sexual 
crimes and when a crime has been committed, we must provide 
compassionate care and protect the rights of survivors, particularly 
their right to privacy.
    Second, we must ensure that every allegation of sexual assault and 
harassment is thoroughly and professionally investigated and that 
appropriate action is taken.
    Third, we must create a climate and an environment in which every 
person is able to thrive and achieve their full potential. Leaders must 
take action to establish and sustain standards at every level. Leaders 
must develop systems to ``see'' their units and themselves in order to 
understand the extent to which their leadership promotes a positive 
command climate. Every soldier must believe that when they report an 
incident of sexual assault or harassment the chain of command will 
respond quickly and will protect the victim. Part of building a 
positive command climate is reducing the stigma associated with 
reporting these crimes.
    Fourth, it is imperative that we hold individuals, units and 
organizations, and commanders accountable for their behavior. 
Commanders are ultimately responsible for ensuring an environment of 
mutual respect, trust and safety. We must take a deliberate approach to 
implementing the necessary checks and balances that will ensure 
commanders and their legal advisors reinforce their mutual 
responsibilities to administer the Uniformed Code of Military Justice. 
At the same time every individual--leaders, peers, and subordinates 
alike--must be compelled to report sexual misconduct to eliminate the 
bystander mentality.
    Fifth, it is imperative that we keep the chain of command fully 
engaged and at the center of any solution to combat sexual assault and 
sexual harassment. Command authority is the most critical mechanism for 
ensuring discipline and accountability, cohesion and the integrity of 
the force. Increased commander involvement and accountability is 
essential to instituting a change of culture in our Army, restoring the 
trust of our soldiers, and is necessary to comprehensively solve this 
problem.
                      the military justice system
    It is my belief that soldier discipline is the foundation of any 
well-trained force capable of winning our Nation's wars. Discipline is 
built, shaped and reinforced over a soldier's career by commanders with 
authority. The commander is necessarily vested with ultimate authority 
because he or she is responsible for all that goes on in a unit--
health, welfare, safety, morale, discipline, training, and readiness to 
execute a mission in wartime and in times of peace. The commander's 
ability to punish quickly, visibly, and locally is essential to 
maintaining discipline in all its forms within a unit. The Uniform Code 
of Military Justice (UCMJ) is the vehicle by which commanders can 
maintain good order and discipline in the force. Without equivocation, 
I believe maintaining the central role of the commander in our military 
justice system is absolutely critical.
    I also believe that the military justice system, based upon the 
UCMJ, is well equipped to meet the challenges of crime and indiscipline 
in the Army, to include the crimes of sexual assault and sexual 
harassment. Commanders have a wide range of disposition options 
available to them, from four levels of court martial, non-judicial 
punishment, punitive administrative discharge, adverse administrative 
action, to imposing non-punitive measures. This toolbox of disposition 
options allows commanders to address the entire spectrum of sexual 
misconduct, from precursor behaviors of verbal harassment up to and 
including a rape. Civilian systems do not provide a corresponding range 
of disposition options. At the same time, I also believe that there are 
additional checks and balances that can be added to the UCMJ that will 
both assist commanders and ensure that they are following the 
appropriate procedures. This is where we must work together.
    Sexual assault and harassment are unacceptable problems within our 
military and our society. We cannot, however, simply prosecute our way 
out of this problem. Sexual assault and harassment are issues of 
discipline that require a change in our culture. I need our commanders 
to instill that culture change as they continue to train our soldiers 
to prevent and to respond to issues of sexual assault and harassment. I 
am certain that removing a commander's role in military justice will, 
unfortunately, undermine a commander's ability to effect these culture 
changes. It will adversely affect discipline, and may result in an 
increase to the problems we seek to resolve.
 the army's sexual assault reporting, response, and disposition process
    The Army's system for receiving and processing reports of sexual 
assault consists of five basic elements: reporting options and victim 
care, independent investigation, legal review, tracking mechanisms, and 
the disposition decision. As detailed in our regulations, the Army's 
policies regarding sexual assault are intended to provide a series of 
checks and balances to ensure that once a report of sexual assault is 
made, there is accountability, visibility, and transparency in our 
system. We are taking a hard look at each of the steps detailed here so 
that we ensure we have the tools in place to ascertain full compliance 
with Army policies, and identify any gaps and areas for improvement.
    First, victims must have a variety of options by which they can 
reach out for help and make a report. Understanding the intensely 
personal nature of these crimes, the Army provides victims with two 
types of reports for sexual assault victims in the Army. An 
unrestricted report, preferred by Army policy, can be made to any 
source and triggers immediate victim support and an independent law 
enforcement investigation. A restricted report can be made only to 
select individuals, and will allow a victim to obtain counseling, 
medical and advocacy services. Restricted reports may be made only to a 
Victim Advocate, Sexual Response Coordinator, and healthcare personnel, 
and this is commonly known to our soldiers. A restricted report does 
not trigger a law enforcement investigation; however, a victim who 
chooses to make a restricted report is able to convert to an 
unrestricted report at any time. The choice to make a restricted or 
unrestricted report is left to the discretion of the victim.
    Soldiers may make unrestricted reports to multiple sources, 
including: uniformed or civilian victim advocates, uniformed or 
civilian Sexual Assault Response Coordinators, military or civilian law 
enforcement (including 911), military or civilian hospitals, chaplains, 
the inspector general's office, judge advocates, hotline numbers 
managed by the Department of Defense and local installations that 
accept phone calls and texts, websites for on-line reporting and any 
member of the victim's chain of command. These sources are considered 
`first responders' and are specially trained to respond and support 
victims. A friend or family member of the victim may report to any of 
these sources which may also trigger a law enforcement investigation if 
the report is unrestricted. Every officer or noncommissioned officer 
within the chain-of-command who receives or learns of an allegation of 
sexual assault in their unit is obligated to report that crime to law 
enforcement. Failure to do so may be considered a dereliction of duty.
    As soon as a report is made, victim care responsibilities are 
triggered. Throughout the reporting, investigative and prosecution 
process, victim care is an essential and ongoing element of the 
program. Victims are assigned a victim advocate, their primary point of 
contact, from the initial report. Victims are offered the services of 
legal assistance attorneys, who provide confidential advice within the 
privileged context of an attorney-client relationship, on victim's 
rights, options and the military justice system. Victim witness 
liaisons assist with educating victims about their rights and the 
military justice process and provide compassionate, direct assistance 
that includes accompanying victims to interviews and proceedings.
    In addition to victim service providers, commanders are required to 
protect and care for victims. Commanders must transfer a victim to 
another unit if requested; must keep the victim informed monthly about 
the status of the investigation; must ensure that victim afforded 
support services; and must take action to ensure victim and unit safety 
are maintained, to include issuing a no-contact order. The commander's 
role in protecting and caring for the victim is integral to promoting 
faith and trust in the military justice system and is another reason 
why commanders must be involved in the process. Victim support services 
continue until he or she elects to reduce or change support 
requirements.
    Second, every sexual assault allegation must be subject to a 
thorough and professional investigation. Every source that receives an 
unrestricted report of sexual assault is required to notify law 
enforcement immediately. Every sexual assault allegation, from an 
unwanted touch over the clothing to rape, is required to be 
investigated by the specially-selected and trained agents of the 
Criminal Investigation Division (CID), the Army's felony level 
detectives. CID agents do not work for the commander, and the commander 
has no role in shaping or advising the investigation. CID agents 
receive some of the best and most extensive training in sexual assault 
investigations of any investigative agency, including their initial 
training, annual refresher training, and an in-depth 80-hour Special 
Victim Unit (SVU) Investigation Course. Further, CID has hired civilian 
sexual assault investigators (SAIs) to supervise their SVUs and sexual 
assault investigative teams. The sexual assault investigators bring, on 
average, 16 years of experience and expertise from civilian State and 
Federal law enforcement agencies.
    Third, qualified judge advocates, including our specially trained 
and selected special victim prosecutors (SVPs), provide legal advice to 
the investigators and the commanders and protect the rights of victims. 
SVPs are hand-selected at the Department of the Army level for their 
skill and experience in the courtroom and their ability to work with 
victims. SVPs receive an intense 3-month training prior to assuming 
their duties that includes on-the-job experience with a civilian 
Special Victim Unit in a major metropolitan city and the National 
District Attorney's Association Career Prosecutor's course. The SVP 
works hand-in-hand with the CID agents to develop these investigations. 
SVPs are notified of and track every allegation of sexual assault. The 
SVP trackers are provided monthly to the Office of The Judge Advocate 
General Criminal Law Division and the Trial Counsel Assistance Program 
for oversight. SVPs are also trained to meet with the victim as soon as 
practicable after the report, to establish rapport and begin the 
relationship that will serve as the foundation of every case.
    When the CID investigation is complete, a judge advocate must 
provide a legal opinion that the allegation should be ``founded'' or 
``unfounded'' based on the requirement that there be evidence of every 
element of the offense. This process, an agreement between the 
investigator and the prosecutor, comports with civilian jurisdiction 
practice, in which the police and district attorney make collaborative 
decisions about the sufficiency of evidence. If the allegation is 
determined to be ``unfounded,'' the commander is notified and the 
record becomes a permanent law enforcement record. If the allegation is 
determined to be ``founded,'' the judge advocate will take the case to 
the commander for discussions and recommendations on disposition 
options.
    Fourth, every allegation is tracked using several reporting methods 
to provide visibility and transparency. Every sexual assault allegation 
is entered on the daily crime blotter that is circulated to all 
leadership personnel with a need to know on that military installation, 
to include each level of command up to the Commanding General, usually 
within 24 hours of the initial report. Every investigation is evaluated 
by a judge advocate for the sufficiency of evidence. Every 
investigation, no matter the outcome, results in a permanent law 
enforcement record associated with the offender. The progress of the 
investigation and the disposition of every case is monitored by the 
installation and unit Sexual Assault Response Coordinators and 
discussed monthly at the Sexual Assault Review Board, chaired by the 
senior commander on the installation. Finally, the disposition and 
description of every allegation of sexual assault is provided to 
Congress in the Annual Report on Sexual Assault in the Military.
    Fifth, the disposition of sexual assault allegations are Reserved 
for senior, seasoned and trained commanders relying on the advice of 
judge advocates. Due to the complexities of sexual assault crimes, the 
disposition of the most serious, penetrative offenses is withheld to 
the Special Court Martial Convening Authority, a brigade commander 0-6 
(colonel) with a dedicated legal advisor. These officers have over 20 
years of experience in the Army, command units of approximately 3,000-
5,000 soldiers and have been trained in their responsibilities under 
the military justice system repeatedly, to include a specialized, sex 
assault focused Senior Officer Leader Orientation at the Army Judge 
Advocate General's Legal Center and School. The non-penetrative sexual 
assault offenses are withheld for disposition to the Summary Court 
Martial Convening Authority, a battalion commander with an average of 
20 years of experience who commands a unit of approximately 500 
soldiers.
    The disposition process is a continuation of the investigative 
process in that the same people are advising the command: the 
investigator and the legal advisor. The relationship between the judge 
advocate legal advisor and the commander is unique. The commander has 
the authority, but that commander relies on his or her judge advocate 
for advice and recommendation. Commanders do not make disposition 
decisions without judge advocate advice, and Article 34, UCMJ, requires 
that the judge advocate provide written advice before charges may be 
referred to a court-martial. In the event that a judge advocate 
encounters a commander unwilling to follow advice to take an allegation 
to trial, the judge advocate may take the same allegation to the 
superior commander, who can essentially pull the case up to the next 
level.
    Although these policies for reporting, disposition and victim care 
provide a sound base, I believe the Army must take a hard look at our 
system, from start to finish to ensure that the central role of the 
commander is subject to appropriate checks and balances, all while 
protecting the interests of the victim and the due process rights of 
accused soldiers.
                  military justice system improvements
    I am aware of a number of legislative proposals that contemplate 
changes to the role of the commander and to the UCMJ. I welcome candid 
and vigorous discussion about how we can improve our military justice 
system. Below are detailed some of the changes we should consider to 
improve our current system:

         Commander Response Certification. I believe we should 
        implement a process of checks and balances to ensure commanders 
        and their legal advisors are reinforcing their mutual 
        responsibilities to administer the UCMJ properly. Although our 
        commanders participate in our monthly Sexual Assault Review 
        Boards held at the local level to review sexual assault cases 
        and ensure effective victim support is provided, we believe the 
        Army can do more to improve our response services and 
        responsibilities. For example, we are considering whether to 
        create a new system to formally track all commanders' actions 
        after a report of sexual assault has been received. Army 
        Regulation 600-20 lists the actions required by the commander, 
        as well as the actions that must be taken by Sexual Assault 
        Response Coordinators, CID, and staff judge advocates in the 
        event of a reported sexual assault. These actions apply equally 
        to reports made through the chain of command and those made 
        outside the chain of command. However such actions are not 
        formally tracked until an investigation is initiated by 
        military law enforcement. In order to ensure the proper 
        responsibility for and accountability of all command actions, 
        we will consider the best ways in which to strengthen and 
        codify these checks and balances.
         Article 60, UCMJ Limitations. I support the Secretary 
        of Defense's position and the DOD's proposed amendment to 
        Article 60 which would limit a commander's ability to 
        disapprove a finding of guilt and would require a commander to 
        justify any sentence reduction in writing. I also believe that 
        the commander's role in the post-trial process should generally 
        be preserved, particularly for the purpose of ensuring fairness 
        to an accused when an appellate process may not be available.
         Trainee Sexual Abuse. I support proposals that would 
        criminalize sexual activity between trainers and trainees as 
        well as recruiters and recruits. I also believe that the 
        definition of a ``trainer'' should be interpreted broadly to 
        include training cadre and other supporting personnel.
         General Court Martial Referral for Rape. I support 
        proposals which would require that all penetrative sexual 
        offenses (for rape, sexual assault, forcible sodomy and 
        attempts to commit those crimes) be referred to a General Court 
        Martial only, rather than a Special Court Martial or a Summary 
        Court Martial, due to the severity of these crimes. To 
        implement this proposal, however, we will need to consider 
        several technical amendments to ensure the UCMJ functions 
        properly in practice.
         Bar to Service. I support a bar to service for any 
        person who has been convicted of a sexual offense or who has 
        been separated from military service due to any previous sexual 
        misconduct.
         Mandatory Administrative Separation. I support the 
        mandatory administrative separation of any person required to 
        register as a sex offender. Registration requirements for sex 
        offenders are already set forth in Federal law, State law, and 
        Department of Defense policy, and the Army is in compliance.
         Expanded Legal Assistance Training. The Army has 300 
        well-trained legal assistance attorneys in the field right now. 
        We are carefully watching the Air Force pilot program and 
        adopting their best practices by incorporating specialized, 
        victim-oriented training for our counsel. Along with this 
        effort, we are fielding the National Defense Authorization Act 
        (NDAA) for Fiscal Year 2013-mandated ``Special Victim 
        Capability'' (SVC) which includes the following four specially 
        trained personnel: Special Victim Prosecutor (SVP), Sexual 
        Assault Investigator, Victim-Witness Liaison, and Paralegal.

    The Army's SVP program, in place since 2009, has dramatically 
improved the overall handling and prosecution of sexual offenses. For 
the past 3 years, the feedback we have received from victims and their 
families attest to the dedicated, compassionate assistance provided by 
the specially-selected and trained Special Victim personnel. In 
addition, the number of courts-martial for sexual assault and domestic 
violence has steadily increased, reflecting a justice system that is 
increasingly focused on this problem. The robust training programs 
created to support that mission are now being multiplied to specially 
train the rest of the Special Victim Capability personnel. In addition, 
our legal assistance attorneys are receiving similar training so they 
are prepared to adequately represent victims' needs and privacy 
interests.

         Response System Panel. I am in full support of the 
        NDAA for Fiscal Year 2013, section 576, creation of a Response 
        Systems Panel (RSP) and the Judicial Proceedings Panel (JPP) to 
        study the reporting, investigating, and prosecuting of sexual 
        offenses under military and civilian jurisdictions and to 
        determine what changes should be made to law and policy.

    It is my view that any changes to the UCMJ--even if we agree that 
change is required--not be made in a piecemeal fashion. I agree that 
improvements can and should be made, but I recommend a measured 
approach. The UCMJ system created in 1950 was carefully crafted by 
Congress over the course of 2 years after numerous hearings, testimony 
from lawyers and non-lawyers, and carefully drafted legislation. Since 
that time, Congress has made major changes to the Code on only one 
occasion, when it enacted the Military Justice Act of 1968 after months 
of hearings and testimony. Any proposed statutory and policy changes 
should be made as part of RSP panel and not implemented until the panel 
is complete.
    By taking a deliberate and thoughtful approach, we can ensure that 
the UCMJ remains a first class piece of legislation, but also ensure 
that unforeseen or unanticipated consequences do not adversely affect 
our military legal system. Any changes to our system must be done with 
a full appreciation for the second- and third-order effects on our pre-
trial, post-trial, and appellate process.
                addressing sexual assault and harassment
    There are a number of existing and new initiatives underway at the 
institutional level and across our operational force, and within our 
military justice system to get after the problems of sexual assault and 
sexual harassment.
Institutional Initiatives
    The Army's Sexual Harassment/Assault Response and Prevention 
(SHARP) program takes a comprehensive approach to preventing and 
responding to both sexual assault and harassment because research 
demonstrates that sexual assault is often preceded by sexual 
harassment. The Army's SHARP strategy is consistent with the Strategic 
Direction to the Joint Force on Sexual Assault Prevention and Response 
Memorandum dated 7 May 2012, DOD policy, and it is being updated to 
meet NDAA for Fiscal Year 2013 legislative requirements.
    Due to the criticality and priority of this mission, I support 
exempting all SHARP program personnel from the civilian furlough and 
the hiring freeze so that we may continue to interview and hire 
additional Sexual Assault Response Coordinators (SARC), Victim 
Advocates, investigators, lab examiners and trainers through the end of 
fiscal year 2013.
    On 10-11 June 2013, I will host a 2-day SHARP Summit with all of 
the Army's senior commanders and command sergeants major. The 
conference will bring together Army leaders, Congressional 
representatives, and civilian subject matter experts to discuss sexual 
assault and harassment related concerns. For example, conference 
participants will discuss the status of compliance with Army policies 
and any challenges implementing the current Army SHARP Campaign Plan 
and new requirements as outlined by the Secretary of Defense in his 6 
May 2013 Sexual Assault Prevention and Response and 17 May 2013 Stand-
down directives. The conference will provide the opportunity for Army 
civilian and military leaders and survivors to share their lessons 
learned and develop best practices across the force.

         CSA SHARP Panel. I am in the process of establishing a 
        SHARP panel of experts to provide Army senior leaders with a 
        critical, independent review of the Army's current programs 
        that will be used to inform any changes to the Army's policies 
        and procedures. The panel will be composed of civilian 
        government, legal, and academic experts, military commanders, 
        and sexual assault survivors so that they can share their 
        experiences and help to identify areas for improvement and 
        increased responsiveness. In addition, the Sergeant Major of 
        the Army will chair a junior enlisted SHARP panel to provide a 
        more diverse view from across the force on sexual assault and 
        harassment issues.
         Department of Defense Standards for SHARP Personnel. 
        The Army oversees 32 SHARP training courses that span from 
        initial entry up through command sergeants major and pre-
        commissioning to general officer. For example, the Army created 
        and runs the SHARP 80-hour certification course which has been 
        approved by the National Organization for Victim Assistance and 
        is required for all personnel who respond to victims of sexual 
        assault. To date, more than 20,000 Army personnel have 
        completed the course.

    In support of Army commanders, the Army will resource 902 military 
and civilian full-time positions, which includes 829 full-time Sexual 
Assault Response Coordinators (SARC) and Victim Advocates (VA) at 
brigade level as well as 73 full-time SHARP 80-hour Certification 
Course Trainers at Division level and higher Army organizations. Army 
Command and Headquarters Department of the Army level organizations. 
There are approximately 9,010 personnel with collateral duty positions 
at battalion and below units.
    The Army also continues to increase its number of female drill 
sergeants. As of 22 May 2013, the Army is authorized 494 female drill 
sergeants, currently has 478 on hand and expects to add an additional 
51 personnel (for a total of 529) within the next 3 months.

         Training and Education Programs. We are in the process 
        of updating all Professional Military Education training 
        programs on sexual assault and harassment from new recruit 
        through general officer level and the Civilian Education System 
        training. Program updates are based upon new legislation, 
        revised DOD guidance, and changes to the Army's sexual 
        harassment/assault prevention campaign efforts.

    At their pre-command course, commanders receive mandatory SHARP 
training modules on current trends, cultural considerations, and the 
commander's role in establishing a climate and culture that does not 
tolerate sexual misconduct. In addition, an Army sexual assault Highly 
Qualified Expert (HQE) instructs commanders on their roles and 
responsibilities as Special/General Court Martial Convening 
Authorities.
    Consistent with the NDAA for Fiscal Year 2013, the Army 
indoctrinates new recruits and first-term soldiers on SHARP training 
with in the first 14 days of basic combat training and offers support 
to soldiers who self-disclose a pre-service history of sexual assault. 
In training facilitated by sexual assault subject matter experts, 
recruits participate in a second course consisting of interactive skits 
dealing with dating, consent, and sexual assault to foster 
understanding about the nature and impact of interpersonal violence. 
Reserve Officer Training Corps (ROTC) cadets receive a 3 hour 
introductory course on SHARP early in their common core training 
program. A comprehensive curriculum at the U.S. Military Academy 
includes lessons on sexual harassment and sexual assault topics during 
the cadets' basic training as well as additional SHARP instruction 
throughout the 47-month cadet experience.

         Increasing Investigator, Lab Examiner, and Prosecutor 
        Capacity. Since 2012, the Army has served as the Executive 
        Agent for the Special Victims Unit Investigation 80-hour Course 
        that trains all the Military Services' investigators and 
        prosecutors at the U.S. Army Military Police School. 
        Approximately 250 personnel were trained in fiscal year 2012. 
        The U.S. Army Criminal Investigation Laboratory supports all 
        Military Services and the laboratory's DNA processing meets all 
        Congressionally mandated timelines of under 60 days. The Army 
        maintains a Special Victims Unit capability through 70 CID 
        units worldwide, which includes 22 Sexual Assault Investigators 
        at 19 Army installations; an additional 8 Sexual Assault 
        Investigators will be hired in fiscal year 2014.

          In addition to these programs, the Army has hired or assigned 
        the following added personnel to increase capacity for 
        investigations and prosecutions:

                 Four Criminal Investigation Division (CID) 
                highly-qualified experts
                 Six (of seven) civilian lawyers who are 
                highly-qualified experts in the field of sexual assault
                 20 (of 23) Special Victim Prosecutors 
                (remaining filled by summer 2013)
                 32 Lab Examiners whose express purpose and 
                focus is sexual assault

         Medical Command (MEDCOM). Every Army Military 
        Treatment Facility has a Sexual Assault Care Coordinator, 
        Sexual Assault Clinical Provider, and a Sexual Assault Response 
        Coordinator (SARC) who train other healthcare providers and 
        healthcare personnel on their requirements regarding the 
        preservation of restricted reports, in addition to providing 
        support to victims of sexual assault. There are a total of 304 
        designated health care providers and 398 SHARP trained 
        personnel who support MEDCOM efforts.
Actions across the Operational Force
         Unit Training. The Army will continue to require 
        training and improve our ability to conduct realistic, 
        pertinent, interactive training with our operational units. We 
        have mandatory annual training for all personnel, which 
        includes small-group, interactive training and a self-study 
        module on sexual assault and harassment prevention and 
        response. This includes leader and soldier videos as well as 
        scenario-based role playing to discuss how Soldiers, leaders, 
        and commanders make choices in situations dealing with sexual 
        harassment and sexual assault.

    As part of the Army's SHARP Stand-down in June, commanders will 
conduct refresher training for all unit Sexual Assault Response 
Coordinators, Victim Advocates, recruiters, drill sergeants and AIT 
platoon sergeants. Commanders will also lead interactive, discussion-
based unit training on: the duties and responsibilities for SARCs, VAs, 
recruiters, drill sergeants and AIT platoon sergeants; how professional 
ethics, the Warrior Ethos, and the Army Values relate to the subject of 
sexual harassment and sexual assault; and how sexual harassment and 
sexual assault affect Army readiness.

         Commander Review of All SHARP Personnel. Consistent 
        with the Secretary of Defense Memorandum on Sexual Assault 
        Prevention and Response Stand-down dated 17 May 2013, the Army 
        is in the process of conducting a review of all Army Sexual 
        Assault Response Coordinators, Victim Advocates, and recruiters 
        and will initiate a similar review of all drill sergeants and 
        advanced individual training (AIT) platoon sergeants. In 
        addition to the review, the Army is considering methods of 
        enhancing its selection criteria for these positions which may 
        include enhanced background checks and face-to-face, behavioral 
        health screening. The file review will be complete by 1 July 
        2013 in the Active component and 1 September 2013 in the 
        Reserve component.

    As part of our review, the Secretary and I have directed that every 
commander ensure that these positions are filled by the best qualified 
individuals of the highest moral character. We must ensure that every 
soldier or civilian in each of these positions is mature, well-trained 
and passes a rigorous background check, records review and selection 
process.

         Command Climate Surveys. The Army currently meets the 
        NDAA for Fiscal Year 2013 requirement for conducting command 
        climate surveys. Commanders conduct annual organizational 
        climate assessments at 30 days, 6 months and annually 
        thereafter, after assuming command. The Secretary of Defense 
        has directed that the results of command climate surveys be 
        provided up to the next level in the chain of command, which 
        will be implemented by 31 July 2013. We are also considering 
        whether to require that commanders develop an action plan to 
        address any issues or concerns that are discovered during the 
        course of the survey and its resulting analysis.
         Sensing sessions. In support of the Army's SHARP 
        Stand-down, all Army Commands, Army Service Component Commands 
        and Direct Reporting Units will develop a leader engagement 
        plan to discuss sexual assault and harassment with all soldiers 
        and civilians across the Army. These engagements are intended 
        to be commander-led, small-group discussions that facilitate 
        greater understanding among leaders, peers, and subordinates 
        about one another's experiences with sexual assault and 
        harassment. At a minimum, commanders should discuss: the Army's 
        SHARP program and the Army's I. A.M. (Intervene, Act, and 
        Motivate) Strong Sexual Harassment/Assault Prevention Campaign; 
        individual responsibility for maintaining a climate of dignity 
        and respect; the Army values and how they relate to sexual 
        assault and harassment; and how sexual assault and harassment 
        affect the readiness of the Army.

    In this effort, we still have much work to do. I understand that 
the credibility of the Armed Forces and the credibility of the Army are 
at stake. Our soldiers, their families, and the American people are 
counting on us to lead the way in solving this problem within our 
ranks. It is my responsibility; it is our responsibility to ensure that 
every service man, service woman, and civilian is able to serve the 
Nation in an environment of mutual respect, trust, and safety.
    This problem will not be solved quickly because it requires us to 
take deliberate steps to change our culture. It requires that we 
restore our people's confidence by improving our system of 
accountability. It is up to every one of us, civilian and Soldier, 
general officer to private, to solve this problem within our ranks. To 
do so, our commanders must play a central role in changing our culture 
because it is they who are responsible and accountable for every 
soldier's health and welfare, unit discipline, and the readiness of our 
forces in times of war or peace.
    Over the last 12 years of war, our Army has demonstrated great 
competence, courage, and resiliency in adapting to the demands of war. 
The Army and the military have contributed to positive social change 
throughout our history--through racial integration, the integration of 
women across all Services, and the elimination of discrimination on the 
basis of sexual orientation. The Army has faced difficult problems 
before and succeeded. We will put our minds to this task. I am 
absolutely confident that we can and we will ensure will eliminate the 
scourge of sexual assault and sexual harassment within our ranks.
    I am grateful for our continued dialogue and partnership with 
Congress to ensure that together, we identify and implement the best 
ways possible to get after the crimes of sexual assault and sexual 
harassment in our Army, in our military, and in our society writ large. 
Thank you Mr. Chairman and other distinguished members of the committee 
for the opportunity to speak with you today. I look forward to your 
questions.
    The strength of our Nation is our Army
    The strength of our Army is our soldiers
    The strength of our soldiers is our families.
    This is what makes us Army Strong!

    Chairman Levin. General Odierno, thank you so much.
    Admiral Greenert?

  STATEMENT OF ADM JONATHAN W. GREENERT, USN, CHIEF OF NAVAL 
OPERATIONS; ACCOMPANIED BY VADM NANETTE M. DERENZI, JAGC, USN, 
            JUDGE ADVOCATE GENERAL OF THE U.S. NAVY

    Admiral Greenert. Thank you, Chairman Levin, Ranking Member 
Inhofe, and distinguished members of the committee. I want to 
thank you for the opportunity to testify today about addressing 
this deeply troubling issue.
    I am grateful for your involvement and for your continued 
interest in providing our commanders and sailors the tools to 
help stamp out the crime of sexual assault from within our 
ranks. Sexual assault is a serious offense. It is contrary to 
everything that we stand for, and it is not who we are.
    For me, this represents a significant safety issue and is 
an existential threat to our core values. It is a defining 
challenge for our time.
    Our sailors deserve a safe environment in which to serve 
their Nation, and I am outraged and I find it inconceivable 
that a shipmate would assault another shipmate, someone with 
whom they stand watch and trust their lives at sea and with 
whom they will go into combat.
    However, my outrage alone is not enough. We need 
thoughtful, deliberate, relentless, and effective action. We 
need to dig into the root causes and establish and put in place 
sustained improvements that can be institutionalized and 
assessed over the long term. At a minimum, our current and 
future readiness are at stake.
    Three years ago, we began a sustained effort to improve our 
prevention and response programs. One outcome was the 
development and integration of a pilot program that we 
instituted at our training command in Great Lakes, Illinois.
    We chose an environment that we felt we could more readily 
control, a school environment. The results over 2 years have 
been sustained and substantial reduction in the prevalence of 
sexual assaults and conduct violations.
    Based on these positive results, we have instituted similar 
programs at the aviation training command in Pensacola, the 
Naval Academy, and Naval Station San Diego. Further, we will be 
implementing these programs in Naples, Italy, and Yokosuka, 
Japan, within the next 6 months.
    Initial feedback from sailors in San Diego thus far has 
generally been positive. Again, reduction in conduct violations 
and sexual assault reports and more confidence in their 
security environment. The foundation of these pilots has been 
focused and engaged leadership at every echelon of the command.
    Now these are just a snapshot of initiatives to improve 
command climates, to weed out perpetrators, and to create an 
environment that dissuades these crimes from occurring. We have 
much more work to do in this area.
    Our sailors must be confident in our reporting process. 
Sailors inform us that simple, multiple, reliable, and readily 
available means of discreetly reporting a sexual assault imbues 
confidence in the reporting process for sexual assault.
    All our sailors need to know how to do this, and in April, 
we completed the training for every sailor in the Navy. We 
reinforced that there are multiple options available in every 
unit to report an assault.
    For example, sailors can report a sexual assault to victim 
advocates, a SARC, the DOD safe line by Web or phone, medical 
personnel, the chain of command, Judge Advocates, 911 or base 
police, a Naval Criminal Investigative Service (NCIS) agent, or 
the chaplain. We hired additional professional credentialed 
response coordinators and victim advocates to augment the 
existing 3,500 trained active duty advocates that we have 
today.
    In addition to numerous efforts in prevention and victim 
support, we recognize our military justice system and processes 
may need to evolve. Previous challenges, such as drug abuse in 
the 1970s and the early 1980s, demonstrated that the UCMJ must 
be able to adapt to better serve our sailors and to provide 
adequate support for our commanders.
    Accordingly, as with DOD's Article 60 proposal, we have to 
ensure that our proposed modifications to the military justice 
system are deliberate, they consider second-order effects, and 
do not ultimately adversely impact the best interests of 
justice, the victim's rights, and due process rights of the 
accused.
    Further, the unit commander's authority and role as the 
singular individual accountable for the welfare of his or her 
sailors should be preserved such that the commander is able to 
carry out his or her mission. I believe that for complex and 
comprehensive changes, those that propose structural changes to 
the military justice system and the UCMJ, particularly the role 
of the commander, the response systems panel created by section 
576 should be given the opportunity to complete an independent 
assessment.
    It is clear that preventing and responding to sexual 
assault is not just a legal issue. It is assuredly a leadership 
issue and fundamentally embedded in what we call the ``Charge 
of Command.'' The commanding officer is responsible and 
accountable for everything that happens in his or her ship, 
squadron, or unit, and we expect our commanders to create a 
safe environment founded on dignity and respect, one that 
reinforces our core values of honor, courage, and commitment.
    To reinforce this concept, each sexual assault report is 
briefed by the unit commander to the first flag in the chain of 
command, focusing on root causes, location, environment, and 
the means for future avoidance. I review the collation of these 
results quarterly with my Navy four-star commanders, focusing 
on trends, progress, and a framework for further action.
    Now we have found that successful, effective, and permanent 
changes in our military are best done through our commanders, 
the chain of command. I believe this is true for the military 
justice process as well. From initial disposition through 
convening authority to post trial review, the chain of command 
should be involved.
    Recently, in the interest of improving the military justice 
process in cases of the commission of or the attempt to commit 
rape, sexual assault, or forcible sodomy, DOD elevated the 
disposition authority to the O-6 level to enhance seniority, 
experience, and the objectivity in this important element of 
the military justice process.
    Navy commanders are often required to make independent 
decisions far from shore in uncertain or hazardous conditions. 
Given the unique nature of their responsibility and the 
authority and accountability we bestow on them for the welfare 
of their crew and mission accomplishment, I believe it is 
essential that our commanders be involved in each phase of the 
military justice process.
    Mr. Chairman, we know there is more to do. We remain 
committed to preventing these crimes, to weeding out 
perpetrators and to providing compassionate, coordinated 
support for sexual assault victims, to holding commanders 
accountable, and to ensuring that sexual assault cases are 
processed through a fair, effective, and efficient military 
justice system.
    Thank you for the opportunity to testify today.
    [The joint prepared statement of Admiral Greenert and Vice 
Admiral Derenzi follows:]
  Joint Prepared Statement by ADM Jonathan W. Greenert, USN, and VADM 
                        Nanette M. Derenzi, USN
    Chairman Levin, Ranking Member Inhofe, distinguished members of the 
committee; thank you for the opportunity to testify today about our 
efforts to address sexual assault and how we can work together to 
improve our ability to prevent and respond to sexual assaults, support 
victims, and hold offenders accountable.
    Sexual assault is a crime. It is an attack on a shipmate, violates 
the Navy's Core Values and tarnishes everything we stand for. Sexual 
assault threatens the safety of our sailors, and degrades the readiness 
of our ships and squadrons. The Navy and our commanders are committed 
to eradicating this crime from our ranks; we owe this to our people and 
our Nation. I am deeply concerned by the extent to which this crime 
continues impact the Navy and undermine the trust our sailors and the 
American people place in our military. This isn't who we are. However, 
I cannot afford to simply be outraged. I have to, and I am committed 
to, working each and every day to solve this problem.
    We began a sustained and focused effort to improve our prevention 
of and response to sexual assault 3 years ago with the Department of 
the Navy's Sexual Assault Prevention Summit. This effort has expanded 
and evolved as we have learned more, particularly in the past year. We 
started with what became a successful pilot program instituted at our 
training command in Great Lakes, Illinois. Over the last 2 years, this 
initiative substantially reduced the prevalence of sexual assaults 
through a tailored approach combining training, safety and security 
measures in housing areas, peer monitoring, direct engagement with 
local business and civil authorities, and regulated liberty. Armed with 
these insights, we recently implemented regionally-focused pilot 
programs in additional Fleet Concentration Areas--San Diego, Naples, 
Italy and Yokosuka, Japan. So far progress in these areas is positive: 
feedback from sailors; reduction in conduct violations (including 
sexual assault); and increased reporting of past sexual assaults in 
these Fleet Concentration Areas indicates awareness of, and confidence 
in, our reporting processes. The foundation of our efforts is focused 
and engaged leadership at every echelon of command, to include 
quarterly meeting I hold with my Navy four-star commanders.
    We see some clear trends regarding sexual assault in the Navy which 
enable us to focus our efforts. Most sexual assaults are sailors 
assaulting other sailors; most victims and offenders are junior 
sailors; more than half of incidents occur on base or on ship; and 
alcohol is a factor in the majority of sexual assaults that occur 
outside of the workspace. Using these insights I see the greatest 
opportunity for future success in three main areas:

         Disrupting the factors that contribute to sexual 
        assault--We continue to focus, in particular, on alcohol as a 
        factor in sexual assault. This year we fielded alcohol 
        detection devices in the fleet to help educate sailors on their 
        alcohol use. We are also addressing command climate and how it 
        contributes to sexual assault, particularly the impact of 
        sexual harassment and how it contributes to a culture that may 
        enable sexual violence. As described below, we implemented 
        improvements to our leadership development programs and put in 
        place processes to better evaluate and hold leaders accountable 
        for their efforts to keep their sailors safe and for shaping 
        proper command climate--the way their commands treat their 
        people and the environment in which their sailors work. Since 
        most incidents occur in areas we control, our commanders 
        implemented more aggressive security measure in on-base housing 
        areas including patrols by senior personnel, security cameras 
        and improved lighting. Since most victims and offenders are 
        junior sailors, our training is targeted to those sailors, and 
        we support peer groups such as Coalition of Sailors Against 
        Destructive Decisions who train, mentor, and sponsor awareness-
        raising events for fellow junior sailors.
         Fielding A Special Victim Capability--Specially 
        trained investigators, victim advocates, prosecutors, and 
        paralegals form the core of our special victim capability to 
        respond to incidents of sexual assault. We established 
        dedicated Naval Criminal Investigative Service (NCIS) agent-
        teams in Norfolk, San-Diego, Bangor, and Okinawa that 
        exclusively handle adult sexual assault investigations. NCIS is 
        expanding this model during fiscal year 2013 to Yokosuka, 
        Japan, Hawaii and Mayport, Florida. To improve the overall 
        quality of Navy court-martial litigation, the JAG Corps 
        established the Military Justice Litigation Career Track. 
        Military Justice Litigation Qualified judge advocates lead 
        trial and defense departments at Region Legal Service Offices 
        and Defense Service Offices, which provide Navy prosecutors and 
        defense counsel, respectively. These officers provide proven 
        experience in the courtroom, personally conducting, 
        adjudicating, or overseeing litigation in sexual assault and 
        other complex cases. The Military Justice Litigation Career 
        Track program leverages trial counsel, defense counsel, and 
        judicial experience to enhance the effectiveness of complex 
        court-martial practice. We also increased the seniority of 
        commanders authorized to decide the disposition of sexual 
        assault cases and required that commanders consult judge 
        advocates in making disposition decisions. These and other 
        improvements are discussed in further detail below.
         Support for victims--The Navy is in the process of 
        hiring 66 full-time credentialed Sexual Assault Response 
        Coordinators (SARCs) and 66 full-time, professional, 
        credentialed victim advocates (VAs) to augment the 
        approximately 3,000 existing trained active duty command VAs. 
        We will have these SARCs and VAs at every one of our Fleet 
        Concentration Areas and major overseas bases, with additional 
        positions added proportionally to areas with larger 
        populations. Complementing the support provided by SARCs and 
        VAs, Navy prosecutors and legal assistance attorneys provide 
        victims' with an understanding of their rights, the military 
        justice process, and assistance with wide variety of issues 
        related to being the victim of a crime.
            proposed changes to the military justice system
    A critical aspect of our focused efforts is ensuring a fair, 
efficient, and effective military justice system. Consistent with 
previous challenges such as drug abuse in the 70s and early 80s, the 
UCMJ and Manual for Courts Martial (MCM) must be able to evolve. We 
recently endorsed a significant change to Article 60 of the Uniform 
Code of Military Justice (UCMJ) to prohibit a convening authority from 
setting aside the findings of a court-martial except for a narrow group 
of qualified offenses (those ordinarily addressed through non-judicial 
punishment or adverse administrative action) and require a convening 
authority to explain any sentence reduction in writing. The process the 
Secretary of Defense followed in proposing an amendment to Article 60 
of the UCMJ ensured a careful and full evaluation of the proposal both 
in terms of accomplishing intended objectives and avoiding unintended 
second- and third-order effects.
    As with the Department's Article 60 proposal, we must ensure that 
other proposed changes to the military justice system do not adversely 
impact the interests of justice, the rights of crime victims, and the 
rights afforded the accused. To maintain the proper balance of these 
interests and ensure the system remains constitutionally sound and 
responsive in peace and war we must continue to evaluate proposed 
changes to the UCMJ by carefully assessing their overall impact.
    The Response Systems Panel created by section 576 of the National 
Defense Authorization Act for Fiscal Year 2013 should be given the 
opportunity to conduct an independent assessment of the systems used to 
investigate, prosecute, and adjudicate sexual assaults prior to the 
adoption of sweeping structural changes to those systems. I look 
forward to the opportunity to work with Congress now and in the future 
to ensure our commanders have the right tools to help them prevent and 
respond to sexual assault. In addition to the Secretary of Defense's 
proposed amendment to Article 60 of the UCMJ, we should carefully 
consider other proposals, including: enhanced protection for recruits 
and members of the armed forces in entry-level processing and training 
environments; prohibition against military service for any person with 
a conviction for sexual assault; enhanced authority for commanders to 
temporarily reassign or remove from a position of authority a member 
alleged to have committed a sexual assault offense; and elimination of 
the 5-year statute of limitations applicable to sexual assault offenses 
other than rape.
                        sexual assault reporting
    In the Navy, there are two reporting options for victims of sexual 
assault: restricted and unrestricted. There are multiple means 
available for sailors to make reports at all commands--afloat or 
ashore. Sexual assault reports can be made to personnel as described 
below inside or outside the victim's command and can be confidential, 
as desired by the victim.
    Restricted reports are kept confidential; an investigation is not 
initiated, and the command is notified that an assault has occurred 
with no identifying information regarding the victim or suspect. 
Victims can make restricted reports to SARCs, VAs, medical personnel, 
or by contacting the DOD SafeHelpline by phone (877-995-5247) or online 
(https://www.safehelpline.org/), 24 hours per day, 7 days a week. 
SARCs, VAs, and SafeHelpline personnel ensure victims understand their 
reporting options and available resources. Victims who make restricted 
reports will still receive medical treatment, including a Sexual 
Assault Forensic Examination, counseling services, victim advocacy 
support, chaplain support, and legal assistance as they desire.
    Unrestricted reports provide victims the same support services as 
restricted reports. These reports are investigated by the NCIS and 
reviewed for prosecution by a commander with the rank of O-6 or above 
with disposition authority for sexual assault cases. Victims who desire 
to make an unrestricted report are encouraged to report sexual assaults 
to a SARC or VA, medical personnel, command leadership, judge advocate, 
base police, master at arms, NCIS or civilian law enforcement as soon 
as possible after the incident. The decision to make a restricted or 
unrestricted report rests with the victim; a victim can make a 
restricted report and later change to an unrestricted report. Once a 
victim files an unrestricted report, investigation and reporting 
requirements are mandated. The Navy trained every sailor on reporting 
procedures during our Sexual Assault Prevention and Response for 
Leaders and Fleet training completed in April 2013. The Navy also 
implemented policies to ensure victim safety and support following an 
unrestricted report of a sexual assault. For example, victims may 
request an expedited transfer to another command or duty station. 
Additionally, commanders may issue military protective orders to order 
a military suspect to have no contact with the victim, temporarily 
transfer the accused pending resolution of the case, or place the 
accused in pretrial confinement.
    Whether a victim chooses to make a restricted or unrestricted 
report of sexual assault, command SARCs and VAs are specially trained 
to respond quickly to victims; provide information; accompany victims 
to medical, investigative interviews, and legal proceedings as the 
victim desires; make referrals for military and community assistance; 
and help victims through this potentially life altering event. The Navy 
is in the process of hiring 66 full-time credentialed SARCs and 66 
full-time, professional, credentialed VAs to augment the approximately 
3,000 existing trained active duty command VAs. This will be complete 
by June 2013. We will have these SARCs and VAs at every one of our 
Fleet Concentration Areas and major overseas bases, with additional 
positions added proportionally to areas with larger populations. By 
hiring these credentialed professionals, we are improving not only our 
capacity for victim support, but also program continuity and quality.
    The Navy's legal professionals support sexual assault victims. The 
Navy has trained more than 150 Navy and Marine Corps attorneys, 
paralegals, and enlisted personnel to provide legal assistance to crime 
victims in order to ensure victims' rights are understood and 
protected. Navy prosecutors contact victims to provide them with 
explanations of victims' rights; the court-martial process; and 
available Federal, State, or local victim services and compensation. 
Additionally, active-duty and dependent victims are eligible for 
military legal assistance services and may contact or be directed by 
VAs or prosecutors to legal assistance attorneys to receive help 
pertaining to victims' rights, understanding the court-martial process, 
and a wide variety of legal issues related to being the victim of a 
crime.
             sexual assault investigation and adjudication
    Prompt, thorough investigation is critical to the effective 
prosecution of sexual assault cases. Every unrestricted report of 
sexual assault triggers an independent investigation by NCIS. This 
includes sexual contact offenses, such as groping someone over their 
clothes. From the outset of an investigation, NCIS works closely with 
Navy trial counsel (prosecutors) in order to ensure a thorough 
investigation sufficient to make an appropriate charging 
recommendation. To facilitate the prompt collection of evidence, the 
Navy will equip and certify all Medical Treatment Facilities and 
operational units to perform Sexual Assault Forensic Exams by the 
September 2013. To ensure appropriate care, each Navy unit with women 
sailors has at least one female corpsman or physician. In the past 2 
years, NCIS established specially-trained teams around the country and 
overseas that investigate only sexual assault cases. These NCIS agent 
teams better enables NCIS to effectively investigate each case of 
sexual assault. In Norfolk, for example, these teams reduced the 
average time to investigate sexual assaults from 300 days to about 80 
days.
    Once an NCIS investigation is complete, the case is forwarded to 
the accused's commander. In accordance with Secretary of Defense 
policy, the initial disposition decision for reports of rape, sexual 
assault, forcible sodomy, and attempts to commit these offenses must be 
made by Sexual Assault Initial Disposition Authorities (SA-IDAs), who 
are Navy Captains (pay grade O-6) or above designated as Special Court-
Martial Convening Authorities. If the accused's commander is not an SA-
IDA, the commander must forward the case to the appropriate SA-IDA in 
the chain of command for the initial disposition decision. SA-IDAs must 
consult with a judge advocate prior to making disposition decisions, 
ensuring that appropriate legal considerations for these major offenses 
are fully evaluated and balanced with good order and discipline. Having 
received legal advice from a trained and experienced staff judge 
advocate and/or prosecutor, based on the nature of the offenses and an 
analysis of the evidence available, the SA-IDA may recommend that the 
suspect face charges at a general court-martial. The SA-IDA also has 
the option, when appropriate, to send charges to a special court-
martial, summary court-martial, or non-judicial punishment and may also 
process the suspect for administrative separation. If the SA-IDA does 
not recommend general court-martial, the SA-IDA can also return the 
case to the suspect's commanding officer for disposition deemed 
appropriate by that commanding officer, based on the nature of the 
offenses and an analysis of the evidence available, including special 
court-martial, summary court-martial, non-judicial punishment, or 
administrative separation processing.
    Once charges are preferred (sworn to), the suspect becomes ``the 
accused'' and is provided a military attorney. The charges can 
immediately be referred to a summary court-martial or special court-
martial. However, before a case can be referred to a general court-
martial, the accused has the right to have the charges considered at an 
Article 32 pre-trial investigation.
    An Article 32 investigation is similar to a civilian preliminary 
hearing, and a victim may have to appear and testify at the hearing. 
The accused will be present at the Article 32 hearing along with the 
defense counsel who may cross-examine the victim. In the Navy, judge 
advocates serve as Article 32 investigating officers for sexual assault 
offenses. The Article 32 investigating officer will hear the evidence 
and write a report, which will include the investigating officer's 
determination as to whether there are reasonable grounds to believe 
that the accused committed the offenses charged and, if so, a 
recommendation on the forum for disposition of the charges. After 
considering the investigating officer's report and the recommendation 
of a staff judge advocate, the SA-IDA may decide to recommend to a 
general court-martial convening authority (generally an O-7 or above) 
that he or she convene a general court-martial, or the SA-IDA may send 
the accused to a special court-martial, summary court-martial, impose 
NJP or, if appropriate, dismiss the charges. The accused may also be 
processed for administrative separation. In the alternative, the SA-IDA 
may return the case to the suspect's commanding officer for appropriate 
disposition.
    If the charges are referred to a general or special court-martial, 
the accused has the right to choose to be tried by a military judge 
alone or by a panel of servicemembers who serve as jurors (or 
``members'' in a court-martial). To convict a servicemember, a two-
thirds majority of the court-martial panel members, or the military 
judge if the case proceeds with the military judge alone, must be 
convinced of the accused's guilt beyond a reasonable doubt. If the 
accused is found guilty, the case will proceed to the sentencing phase 
and the military judge or members decide what punishment to apply. 
During a sentencing hearing, both sides may again call witnesses to 
help determine an appropriate sentence. The victim can testify about 
the impact of the sexual assault, which may include the emotional, 
physical, and financial suffering the victim experienced.
    Post-trial appeal and review processes under Articles 64, 66, and 
69 of the UCMJ occur after the court martial proceedings. Article 66 
reviews apply to cases in which a punitive discharge or sentence of 
confinement for 1 year or more was approved; those convicted are 
assigned appellate defense counsel, and cases on appeal are decided by 
senior judge advocates serving as Navy and Marine Corps Court of 
Criminal Appeals appellate judges or by civilian judges of the U.S. 
Court of Appeals for the Armed Forces. Article 69 reviews apply to 
general courts-martial where a punitive discharge or confinement for 1 
year or more was not approved; the records of trial are reviewed by the 
Office of the Judge Advocate General. Article 64 reviews are conducted 
for all other courts-martial cases and are submitted to a judge 
advocate who must respond to any allegation of error made by the 
accused.
    Throughout the legal process, the victim has certain basic rights. 
For example, a victim has the right to communicate his or her position 
about the disposition of the case and plea negotiations. Although the 
convening authority is not bound to dispose of the case as the victim 
desires, the victim's views must be carefully considered. In addition 
to the general guidance Navy prosecutors provide, victims can contact 
counsel, and active-duty and dependent victims also have access to 
legal assistance attorneys to provide information on the military 
justice process, victim's rights, and help with a wide variety of legal 
issues related to being the victim of a crime.
    Under the Victim and Witness Assistance Program (VWAP), the victim 
has certain basic rights throughout a court-martial, including:

         Being treated with fairness and respect for the 
        victim's dignity and privacy;
         Being reasonably protected from the accused;
         Being notified of court proceedings;
         Being present at all public court proceedings related 
        to the offense, unless the investigating officer or military 
        judge determines that the victim's testimony would be 
        materially affected if he or she heard other testimony at the 
        pretrial investigation or at trial;
         Conferring with the trial counsel;
         Receiving available restitution, if appropriate; and
         Being provided information about the conviction, 
        sentencing, imprisonment, and release of the offender.
                       the role of the commander
    Preventing and responding to sexual assault is not just a legal 
issue--it is a leadership issue. The performance, safety and climate of 
a unit begin and end with the commander. As described in the ``Charge 
of Command'' that all Navy officers sign in the presence of their 
reporting senior upon taking command, the commanding officer is 
responsible and accountable for everything that happens in their ship, 
squadron or unit. By virtue of experience, skill and training, our 
commanders are the best assessors of their people and are the key to 
sustaining the readiness of their unit. If we want to implement 
effective, permanent change in our military, we must do so through our 
commanders.
    From our analysis of sexual assault reports and cases, we know many 
of the factors surrounding the majority of sexual assaults. The 
commander is responsible to address these factors by fostering an 
appropriate command climate of dignity and respect for everyone and 
ensuring a safe workplace and living areas. Overall, the commanding 
officer is responsible for good order and discipline of the unit and 
the well being of his or her sailors.
    The responsibility, authority, and accountability we repose in the 
commander requires that we provide him or her tools to maintain 
appropriate readiness and safety every day. Military justice is one of 
those tools. The fundamental structure of the military justice system 
and UCMJ, centered on the role of the commander as the convening 
authority, is sound. Navy commanders are often required to make 
independent decisions far from shore, in uncertain or hazardous 
conditions. In this environment, it is essential that our commanders be 
involved in each phase of the military justice process, from the report 
of an offense through adjudication under the UMCJ.
                    the importance of accountability
    The Navy continues to evaluate the tools we provide commanders to 
ensure they can execute their charge of command. In particular, we are 
focused on improving the development of leadership and character in our 
leaders on their way to command. Today, all of our leaders complete 
high-quality, tailored training on sexual assault prevention and 
response. This training, provided by professional mobile training 
teams, is designed to help leaders identify factors and environment 
that surround or contribute to sexual harassment or sexual assault, and 
understand the response requirements when a sexual assault occurs.
    While tailored to sexual assault prevention and response, this 
training is not enough to fully prepare commanders to create an 
appropriate command climate. The Navy recently instituted a concerted 
leader development program to guide young officers and enlisted 
personnel to be effective commanders and senior enlisted leaders. Over 
the next year, we will advance this program as a cornerstone of our 
training for future commanders and Senior Enlisted Advisors and 
leaders.
    Because of the inherent responsibility of our commanders, our 
screening processes to select them are rigorous. They include:

         a formal command qualification program reviewed and 
        approved by each community flag officer leader (normally, a 
        Vice Admiral)
         professional qualification standards for each selected 
        commander
         an oral qualification board for each candidate in 
        front of former commanders
         a command screen board, led by flag officers
         full training on, and acknowledgement of, the ``Charge 
        of Command''

    Despite the rigors of the selection and training process, we 
inevitably have failures and must hold commanders accountable for their 
command climate, their efforts to maintain a safe work environment of 
dignity and respect, and the good order and discipline of their 
commands. Today, we do this by requiring commanders to assess their 
organizational climate at regular intervals, while requiring those with 
multiple commands under their leadership to monitor the climates of 
subordinate commands. We also evaluate our commanders (and all 
officers) in their regular fitness reports (performance evaluations 
used for determination of advancement) in three areas: Command Climate/
Equal Opportunity, Leadership and in written summary, where 
documentation of poor command climates would be listed. We hold our 
commanders responsible and accountable when they do not meet acceptable 
standards.
    There are 1,254 command positions in the Navy. In 2012, Navy 
relieved 11 commanders for personal misconduct and 8 commanders were 
relieved for failure to provide effective leadership; 4 of these 8 were 
relieved for poor command climate. This year, we have relieved five 
commanders for failure to provide effective leadership, two of whom 
were relieved for poor command climate.
    As part of the Navy's accountability process, commanders are 
required to brief their Immediate Superior in Command and the first 
flag officer in the chain of command on each sexual assault incident 
occurring in their command. Commanders evaluate the command climate of 
the suspect's command, as well as the factors surrounding the sexual 
assault, such as location and environment surrounding the incident, 
demographics, and the role of alcohol. Means to prevent further 
incidents are discussed.
    Our Navy four-star flag officers reinforce accountability for 
command climate by reviewing these ``first flag'' reports. I meet with 
my four stars every quarter to review ``first flag reports'': trends, 
demographics, common features and environments and best practices to 
prevent sexual assaults. We apply the insights from the reports to 
ongoing initiatives, particularly our regionally-focused programs in 
Great Lakes, San Diego, Japan and Europe.
                               conclusion
    We remain steadfastly committed to eradicating sexual assault 
within our ranks and ensuring that sexual assault cases are processed 
through a fair, effective, and efficient military justice system.
    Sexual assault is a crime that threatens the safety of our sailors, 
is utterly inconsistent with our Core Values, and impacts the ability 
of the Navy to execute our mission. We must more effectively prevent 
and respond to sexual assault, or our readiness and credibility as a 
fighting force will suffer.
    The Navy is making progress in areas where we empowered commanders 
to undertake regionally-focused approaches that address the factors 
surrounding sexual assault. Our efforts must continue to focus on 
providing commanders the appropriate tools to remain effective, 
accountable leaders, and hold these commanders accountable for the 
safety and well being of all their sailors. I look forward to working 
with Congress on a deliberate, thoughtful review of the systems used to 
investigate, prosecute, and adjudicate sexual assaults.

    Chairman Levin. Thank you very much, Admiral Greenert.
    General Amos.

STATEMENT OF GEN. JAMES F. AMOS, USMC, COMMANDANT OF THE MARINE 
  CORPS; ACCOMPANIED BY MAJ. GEN. VAUGHN A. ARY, USMC, STAFF 
      JUDGE ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS

    General Amos. Chairman Levin, Ranking Member Inhofe, 
members of the committee, thank you for calling today's hearing 
on this most critical issue.
    Let me begin by saying that sexual assault is criminal 
behavior that has no place in your U.S. Marine Corps. It 
violates the bedrock of trust that marines must have in one 
another, the legendary trust that we have always had in one 
another. It is shameful, it is repulsive, and we are 
aggressively taking steps to eradicate it.
    While there are cases of mixed and same-gender attacks, 
sexual assault within the Marine Corps is predominantly a male-
on-female crime. That said, it is important to note that our 
data shows that the crime of sexual assault is being committed 
by roughly 2 percent of our Marine population. Clearly, and 
importantly, the remaining 98 percent of your marines are 
keeping their honor clean.
    Since June of last year, we have tackled the sexual assault 
problem head on and have seen measurable improvements in three 
specific areas: prevention, reporting, and offender 
accountability. I am encouraged by these positive changes and 
believe we have momentum on our side.
    I testify before you today to let you know that eradicating 
sexual assault from within our ranks is a top priority with the 
senior leadership of the entire U.S. Marine Corps. But talking 
about this issue is not enough. Direct action and a uniform 
strategy is required.
    Our history over the last century is replete with examples 
where we have changed the Marine Corps as an institution. 
Following World War II, we knocked down racial barriers, paving 
a clear road of racial equality in our Corps.
    Following Vietnam, as a young lieutenant, I saw firsthand 
how we attacked a rampant drug problem. We solved this 
discipline and illegal behavior problem from the top down. We 
were successful through determined leadership and a combination 
of education and strict legal actions.
    Over time, the Corps changed. Drug users and drug pushers 
became viewed as what they truly were, pariahs. We exiled them 
from our ranks. During that time, we pushed separation 
authority down to commanding officers to enforce discipline 
standards and to effect swift judgment against offenders. It 
was our commanders who drove the change.
    Today, I have seen how the Marine Corps is tackling our 
alcohol problem through leadership and deglamorization of 
irresponsible behavior. While we are far from complete in these 
efforts, DUIs and other alcohol infractions are no longer 
acceptable behavior for a professional corps of marines.
    I have watched us change over the past decades in this 
regard. What was deemed acceptable behavior for Lieutenant and 
Major Amos is simply not condoned today. It is the evolution of 
behavior, and it is good for us.
    Accountability in the Marine Corps begins and ends with me. 
Sexual assault prevention within our ranks is front and center 
with me and at the top of my priorities. Our senior officers 
and staff noncommissioned officers are all in. They are 
focusing on making the necessary changes to prevailing 
conditions and attitudes to create the environment that the 
American people not only expect, but demand from their marines.
    Over the last year, we have implemented an aggressive 
three-phase campaign plan that strikes at the heart of this 
issue. Its goal is complete elimination of sexual assault 
within our Marine Corps.
    As we launched our plan last spring, the Sergeant Major of 
the Marine Corps and I traveled to every base and station 
throughout the world to look our marines in the eye, to remind 
them of their rich heritage, and to remind them who they are 
and who they are not. We spoke of the importance of maintaining 
the spiritual health of the Corps.
    Just as I expect to be held accountable for everything the 
Marine Corps does and fails to do, I, in turn, hold my 
commanding officers accountable for everything their units do 
or fail to do. Our commanding officers are the centerpiece of 
the Marine Corps' effectiveness and professional and 
disciplined warfighting organization.
    Commanding officers are charged with establishing and 
training to standards and uniformly enforcing those standards. 
A unit will rise or fall as a direct result of the leadership 
of its commanding officer. Commanding officers never delegate 
responsibility. They should never be forced to delegate their 
authority.
    As such, as Congress responsibly considers changes to the 
commanders' authority under the UCMJ, I plead with you to do it 
sensibly and responsibly. As strongly as I support the 
authority of the commanding officer, I reject the status quo in 
other areas to military justice and policy.
    I have reviewed current legislative proposals related to 
sexual assault and military justice, and I believe there is 
merit to many of the proposals. I am committed to being an 
equal partner as we engage in serious debate about the best way 
to eliminate sexual assault from within our ranks.
    Thank you again for holding this important hearing on such 
a critical issue. I am prepared to take your questions.
    [The prepared statement of General Amos follows:]
             Prepared Statement by Gen. James F. Amos, USMC
                              introduction
    Sexual assault is criminal behavior that has no place in our Corps 
and my institution is aggressively taking steps to prevent it. Over the 
past 12 months, we have attacked sexual assault and have seen 
encouraging, and in some areas, measurable improvements in three 
specific areas--prevention, reporting, and offender accountability. 
There is more work to do, much more work, but we are seeing indicators 
that tell us we are on the right track.
    Leadership is an essential element of our profession. We must be 
cautious, however, with changes that will undercut a commanding 
officer's ability to ensure obedience to orders. When commanding 
officers lose the ability to take action under the Uniform Code of 
Military Justice (UCMJ), we risk losing the enforcement mechanism 
needed to maintain the world's most effective fighting force.
    My written testimony is composed of three main sections. First, I 
will discuss the importance of the military commanding officer 
generally. Any discussion of the role of the commanding officer in the 
military justice process must start with overall responsibilities and 
duties of a commanding officer to fight and win on the battlefield. 
Second, I will speak to the progress we have experienced in the last 
year under our Campaign Plan in the areas of prevention and response. 
Central to this discussion is the importance of top-down, commanding 
officer leadership that will bring about the culture change necessary 
to end sexual assaults, and the preconditions that lead to it in our 
Marine Corps. Finally, I will discuss our new Complex Trial Teams (CTT) 
that came online and began prosecuting complex cases in October 2012.
                   the role of the commanding officer
    Sexual Assault Prevention within our ranks is ever front and center 
in my mind and at the top of my priorities. Our senior officers and 
staff noncommissioned officers have steadfastly focused on making the 
necessary changes to prevailing conditions and attitudes to create the 
environment that the American people not only expect but demand from 
their marines. Sexual assault is a crime against individual marines 
that reverberates within a unit like a cancer undermining the most 
basic principle we hold dear--taking care of marines. Our unit 
commanding officers are our first line of action in implementing 
aggressive policies and changing the mindset of the individual marine.
    The commanding officer of every unit is the centerpiece of an 
effective and professional warfighting organization. Marine commanding 
officers are chosen through a rigorous selection process, based on 
merit and a career of outstanding performance. They are entrusted with 
our greatest asset, the individual marine. Commanding officers are 
charged with building and leading their team to withstand the rigors of 
combat by establishing the highest level of trust throughout their 
unit. Unit commanding officers set the command climate, one in which 
the spirit and intent of the orders and regulations that govern the 
conduct of our duties will be upheld. There are a number of leadership 
styles, but the result of any of them must be a group of marines and 
sailors that have absolute trust in their leaders, a level of 
professionalism derived from competence and confidence. Trust in the 
commanding officer and fellow marines is the essential element in 
everything we do. Developing this trust, dedication, and esprit de 
corps is the responsibility of the commanding officer. Commanding 
officers do this by setting standards, training to standards, and 
enforcing standards. This defines the good order and discipline 
required by every Marine unit. Marines expect this.
    Whether it is rewarding success or correcting failure, the 
commanding officer remains the common denominator. Commanding officers 
may delegate certain tasks, but they can never delegate their 
accountability for their unit. This is the essence of good order and 
discipline. A unit with good order and discipline meets and exceeds 
standards, works together to continually improve, follows orders, 
trains new members, expects constant success, seeks challenges, and 
does not tolerate behavior that undermines unit cohesion.
    As the Nation's Crisis Response Force, the Marine Corps must be 
ready to answer the Nation's call at a moment's notice. Accordingly, 
good order and discipline is required at all times . . . wherever a 
unit is and regardless of what that unit has been tasked to do. 
Commanding officers cannot delegate this responsibility.
    I have repeatedly referred to these duties as maintaining the 
``spiritual health'' of the Marine Corps from a holistic sense. This 
theme was the genesis of the 27 briefings the Sergeant Major of the 
Marine Corps and I delivered to marines all around the world last year. 
My intent was to re-emphasize the heritage of our Marine Corps . . . 
who we are, and who we are not. Our heritage is one that is guided by 
our principles of honor, courage, and commitment and described by our 
motto . . . Semper Fidelis--Always Faithful.
    I expect marines to have a unified sense of moral and righteous 
purpose, to be guided by what I refer to as ``true north'' on their 
moral compass. I will aggressively pursue and fight anything that 
destroys the spiritual health of the Marine Corps and detracts from our 
ability to fight our Nation's wars. That includes sexual assault. A 
single sexual assault in a unit can undermine everything that a 
commanding officer and every marine in that unit has worked so hard to 
achieve.
    After more than 43 years of service to our Nation, it is 
inconceivable to me that a commanding officer could not immediately and 
personally--within applicable regulations--hold marines accountable for 
their criminal behavior. That is the sacred responsibility of 
commanding officership. I expect to be held accountable for everything 
the Marine Corps does and fails to do. That is my task under U.S. law. 
I, in turn, will hold my commanding officers accountable for everything 
their units do and fail to do.
    Commanding officers never delegate responsibility and 
accountability, and they should never be forced to delegate their 
authority. We cannot ask our marines to follow their commanding officer 
into combat if we create a system that tells marines to not trust their 
commanding officer on an issue as important as sexual assault. In May 
2012, I wrote a personal letter addressed to ``All Marines'' regarding 
sexual assault; I told them ``[o]ur greatest weapon in the battle 
against sexual assault has been and will continue to be decisive and 
engaged leadership.'' My opinion has not changed.
    While our efforts in confronting sexual assault have been 
expansive, they have not eliminated this behavior from our ranks. I 
have been encouraged by our progress, but I acknowledge today, as I 
have told Members of Congress in previous testimony, that we have a 
long way to go. Changing the mindset of an institution as large as the 
Marine Corps always takes time, but we remain firmly committed to 
removing sexual assault from our Corps. We continue to work to ensure 
that our leaders gain and maintain the trust of their marines, as well 
as ensuring that marines can likewise trust their chain of command when 
they come forward. We are not there yet. Where the system is not 
working as it should, we are committed to fixing it, and to holding 
commanders accountable for what is happening in their units. I pledge 
that we will work with Congress, as well as experts in the field, as we 
eliminate sexual assault with our ranks.
    I have reviewed the current legislative proposals related to sexual 
assault and military justice, and I believe there is much merit in many 
of the proposals. We should continue to engage in a serious debate 
about the best way to administer military justice. I want to 
specifically identify some encouraging trends in prevention, response 
and offender accountability. I believe these are based on substantial 
changes made in our Sexual Assault Prevention and Response (SAPR) 
Campaign Plan, and in the complete legal re-organization of our trial 
teams, both instituted mid-year 2012. These changes are showing 
measurable improvements and demonstrate that a commanding officer-led 
model of military justice can be successful. My Service will continue 
to work tirelessly in our fight to bring about the culture change that 
will combat sexual assault.
                        prevention and response
    Our Sexual Assault Prevention and Response Campaign Plan was 
launched a year ago with the stated purpose of reducing--with the goal 
of eliminating--incidents of sexual assault through engaged leadership 
and evidenced based best practices. Essential to this goal, as stated, 
is the commanding officer's responsibility to establish a positive 
command climate, reflecting our core values of honor, courage, and 
commitment. Commanding officers must instill trust and confidence that 
offenders will be held accountable and that victims receive the 
supportive services that preserve their dignity and safety. Sexual 
assault is an under-reported crime both inside the military and out, 
with an estimated 85 percent-90 percent of sexual assaults remaining 
unreported according to the Department of Defense. We must ensure, for 
those marines who do come forward, that we provide the support they 
need with compassion and determination. Last year we saw a 31 percent 
increase in reporting, which speaks directly to the confidence that 
marines have in their commanding officer and the Marine Corps. 
Reporting is the bridge to victim care and accountability remains the 
final litmus test for measuring our progress in our mission to 
eradicate this crime from our ranks. This sharp increase in reporting 
from last year is continuing into this year; I fully expect that we 
will exceed the rate of reporting of last year. I realize that on the 
surface an increase in reporting can be viewed as a negative outcome, 
however, I view it as an encouraging sign that our victims' confidence 
in our ability to care for them has increased markedly.
    To supplement the ongoing work of the SAPR program and leadership 
in the field, we chartered a task force in April 2012, which produced 
our SAPR Campaign Plan and fed my subsequent Heritage Briefs. My 
intention was to reinvigorate our SAPR efforts program and implement 
large-scale prevention initiatives across the Marine Corps. With a 
culture change, a renewed emphasis on engaged leadership, and the 
message that it is every marine's inherent duty to step-up and step-in 
to prevent sexual assaults. The efforts of the Campaign Plan and my 
Heritage Briefs are aligned with the Secretary of Defense's five lines 
of effort: Prevention, Advocacy, Investigation, Accountability, and 
Assessment. Currently we have seen an increase in reporting of sexual 
assaults that went unreported in the previous year. Initial feedback 
from the field indicates that the surge efforts inspired victims to 
come forward because the message received was the Marine Corps takes 
sexual assault seriously and that it will not be tolerated.
    Our Campaign Plan is comprised of three phases. The first phase 
consisted of 42 initiatives across the Marine Corps, resulting in an 
unprecedented call to action to address the prevalence of sexual 
assault within our ranks. Initiating a top-down approach, the SAPR 
General Officer Symposium (GOS) was held 10-11 July 2012 for 2 full 
days of training, where every General Officer in our Corps came to 
Marine Corps Base Quantico. We did the same thing in August during our 
2012 Sergeants Major Symposium. Specifically convened to address the 
prevention of sexual assault, the 2-day training event for all Marine 
Corps General Officers included subject matter experts who spoke on 
topics relevant to prevention, including the effects of alcohol, 
inadvertent victim blaming, dispelling myths, and other related 
subjects. Ethical Decision scenarios were introduced. This video-based 
training initiative, involving sexual assault based scenarios, was 
designed to evoke emotion, stimulate discussion, and serve as another 
training tool that would resonate with marines of all ranks. This 
renewed focus on senior leadership was deemed a critical turning point 
for the Marine Corps. According to the 2012 Workplace and Gender 
Relations Survey of Active Duty Personnel (WGRA), 97 percent of marines 
received training within the past 12 months, which was an increase from 
2010. These training efforts remain ongoing, as approximately 30,000 
new marines are brought in annually. Sixty-two percent of the Marine 
Corps population is between the ages of 18 and 24--a high risk 
demographic for sexual assault.
    To further cement leadership engagement, Command Team Training was 
given to all commanding officers and sergeants major, and was designed 
to bring forth a desired end state in which all leaders through are 
proactively engaged on the problem of sexual assault within the Corps. 
The program consisted of 1 day of training presented in the form of 
guided discussion, case studies, Ethical Decision scenarios and SAPR 
Engaged Leadership Training. SAPR Engaged Leadership Training, 
specifically, provided command teams in-depth practical knowledge of 
their responsibilities, the importance of establishing a positive 
command climate, the process of Victim Advocate (VA) selection, 
critical elements of bystander intervention and prevention. Bystander 
intervention, an evidence-based practice, is a central focus of all of 
our training programs. The 2012 WGRA Survey showed that 93 percent of 
female and 88 percent of male marines indicate that they would actively 
intervene in a situation leading to sexual assault. I am encouraged by 
that data. Command Team Training was completed by 31 August 2012.
    In Phase I of the Campaign Plan, all SAPR training was revitalized 
and standardized Marine Corps-wide. Specific Phase I training 
initiatives included ``Take A Stand'' bystander intervention training 
for all noncommissioned officers and SAPR training for every single 
marine. To achieve long-term cultural change, this training will be 
sustained through re-crafting the curricula in all of our professional 
schools, customizing the training based on the rank and experience of 
the individual marine.
    The second phase of the Campaign Plan, Implementation, is presently 
underway. This phase is focused on victim care, with the major 
initiative being the creation of the Sexual Assault Response Team 
(SART). SARTs are multidisciplinary teams of first responders that are 
designed to respond proficiently to the many concerns of victims, 
ensuring efficient investigative practices, forensic evidence 
collection, victim advocacy and care. A SART will include, at a 
minimum, the following personnel: Naval Criminal Investigative Service 
(NCIS), Military Police, Sexual Assault Response Coordinator (SARC)/VA, 
Judge Advocate/Trial Counsel, mental health services representative and 
Sexual Assault Forensic Examiner. For those installations where an 
immediate SART response capability is not available, the SART can 
include; community representatives, local law enforcement, rape crisis 
centers, district attorneys, Federal task forces, existing civilian 
SARTs, or nongovernmental organizations specializing in sexual assault. 
Each SART is coordinated by the installation SARC.
    The SART initiative coincides with the parallel efforts to increase 
the number of SAPR personnel in the field and intensify the training 
requirements. All SAPR personnel now receive 40 hours of focused sexual 
assault advocacy training and go through an accreditation process 
administered by the National Organization for Victim Assistance (NOVA). 
The addition of credentialed subject matter experts in the field 
enhances our victim care capabilities. Forty-seven new fulltime 
positions have been added in support of the nearly 100 highly trained, 
full-time civilian SARCs and VAs and nearly 1,000 collateral-duty SARCs 
and Unit Victim Advocates (UVAs). SAPR personnel are handpicked by 
commanding officers and serve as the victim's liaison for all 
supportive services to include counseling, medical, legal, chaplain and 
related support.
    Phase II, Prevention, efforts also include further development of 
the SAPR training continuum, encompassing bystander intervention 
training for junior enlisted marines, the development of eight 
additional Ethical Decision Games and the implementation of customized 
SAPR training for all marines.
    Phase III, the Sustainment Phase, will focus on providing 
commanding officers at all levels the requisite support and resources 
to effectively sustain SAPR efforts and progress. It includes the 
initiative to support Marine Corps Recruiting Command's implementation 
of a values-based orientation program, focused on the ``whole of 
character'' for young adults who are members of the Delayed Entry 
Program and have not yet attended recruit training. In addition to 
sexual assault, the program will specifically address all non-
permissive behaviors such as sexual harassment, hazing, alcohol abuse, 
and other high-risk behaviors that tear at the fabric of the Corps.
    The efforts of our Campaign Plan and Heritage Briefs have had many 
positive effects to include an increase in reporting. The Marine Corps 
portion of the fiscal year 2012 Annual Report shows a 31 percent 
increase in sexual assault reports involving marines and shows that 
this spike occurred largely in the second half of 2012 . . . coinciding 
with implementation of our Campaign Plan and training and education 
efforts. As previously stated, I view increased reporting is a positive 
endorsement of our efforts to deepen the trust and confidence in our 
leadership and response system, as well as speaks to the courage of 
those marines most impacted by this crime. In time, and with continued 
focus, marines will increasingly understand and see that we have put in 
place a response system that provides the necessary care for victims 
while holding offenders accountable.
    The 2012 WGRA indicated a greater number of female marines aware of 
the number of options available to them to include the DOD Safe 
Helpline, expedited transfers and restricted reporting. Seventy-seven 
percent of those females, who reported some form of unwanted sexual 
contact, also told us they had a positive experience with the advocacy 
support provided to them.
                               reporting
    A victim of sexual assault can initiate SAPR services through 
various avenues and have two reporting options: unrestricted and 
restricted reporting. For both, our goal is to connect victims with 
Victim Advocates, who serve as the critical point of contact for 
information and support. Victim Advocates will provide support from the 
onset of the incident to the conclusion of needed care.
    Unrestricted reporting triggers an investigation by NCIS as well as 
notification of the unit commanding officer. To make an unrestricted 
report, victims have several access points. Options include calling the 
Installation 24/7 or the DOD Safe Helplines, making a report to a 
civilian Victim Advocate (VA), Uniformed Victim Advocate (UVA), Sexual 
Assault Response Coordinator (SARC), medical/healthcare provider, law 
enforcement, or the chain of command. A victim may also make a report 
to a legal assistance attorney or a chaplain. All access points are 
funneled to the Victim Advocate to track and support the victim. Victim 
Advocates ensure that a Sexual Assault Forensic Examination (SAFE) is 
offered to the victim, counseling and/or chaplain services are offered 
to the victim, and liaison services with legal assistance are 
initiated. Victims are counseled early on in the proceedings that legal 
assistance is available through a Victim Witness Liaison Officer who 
provides information and assistance through the legal phase of this 
continuum. In addition, victim advocates keep the victim informed 
throughout the continuum of services.
    There are many instances where commanding officers are made aware 
of incidents of sexual assault by third parties. In those instances, 
commanding officers are obligated to contact NCIS to initiate an 
investigation, as they would for any report of a crime that is brought 
to their attention. These reports are classified as unrestricted 
reports and all SAPR services are offered to victims in those 
instances.
    Sexual assault cases and the completed NCIS independent 
investigation are automatically elevated to the first O-6 in the chain 
of command who, in close consultation with their legal advisors, 
decides which legal avenue to pursue. This decisionmaking process also 
includes a discussion with the first General Officer in the chain of 
command to decide whether the case will be pulled up to his or her 
level.
    Commanding officers are responsible for providing for the physical 
safety and emotional security of the victim. A determination will be 
made if the alleged offender is still nearby and if the victim desires 
or needs protection. They will ensure notification to the appropriate 
military criminal investigative organization (MCIO) as soon as the 
victim's immediate safety is addressed and medical treatment procedures 
are in motion. To the extent practicable, a commanding officer strictly 
limits knowledge of the facts or details regarding the incident to only 
those personnel who have a legitimate need-to-know. Commanding officers 
are in the best position to immediately determine if the victim desires 
or needs a ``no contact'' order or a military protective order issued 
against the alleged offender, particularly if the victim and the 
alleged offender are assigned to the same command, unit, duty location, 
or living quarters.
    Victims are advised of the expedited transfer process and the 
possibility for a temporary or permanent reassignment to another unit, 
living quarters on the same installation, or other duty location. 
Commanding officers ensure the victim receives monthly reports 
regarding the status of the sexual assault investigation until its 
final disposition.
    The Defense Sexual Assault Incident Database (DSAID) is a central 
data system managed by the Department of Defense (DOD) Sexual Assault 
Prevention and Response Office (SAPRO). DSAID is a DOD-wide service 
requirement that allows for the standardization of data collection and 
management, which is critical for improving case oversight, meeting 
reporting requirements, and informing SAPR Program analysis, planning, 
and future efforts to care for victims. In addition to providing 
consistency across the services in reporting, DSAID is electronically 
linked to the data system used by NCIS, facilitating timely and 
accurate coordination within the investigative process. Full migration 
to DSAID was completed in October 2012.
    In October 2012, the Marine Corps implemented SAPR 8-Day Briefs, an 
additional tool designed to guarantee leadership engagement at the 
onset of each case. For all unrestricted reports of sexual assault, the 
victim's commanding officer must complete a SAPR 8-Day Brief to ensure 
that victim care resources are being provided. Eight-day briefs include 
the commanding officer's assessment and a timely way ahead, and are 
briefed within 8 days to the first general officer in the chain of 
command. The reports are briefed quarterly to the Assistant Commandant 
of the Marine Corps. The analysis of the data compiled utilizing SAPR 
8-Day Briefs also provides us with a more immediate assessment and 
surveillance opportunity, helping us to identify trends to further 
inform our prevention and response efforts. A victim's commanding 
officer stays engaged in the process from beginning to end by attending 
monthly case management group meetings and coordinating with the SARC 
to ensure the appropriate level of victim care and support are being 
provided.
    Restricted reporting is another reporting option for victims. This 
option is a critical resource for those in need of support. Restricted 
reporting does not trigger an official investigation but does allow for 
confidentiality and time to process the impact of the incident without 
the visibility that comes with immediate reporting to law enforcement 
officials and commanding officers. Victims are able to get a SAFE. 
Evidence recovered from a SAFE can be held for 5 years, should the 
victim opt to convert their report to an unrestricted status. Through a 
restricted report, victims can also receive general medical treatment, 
counseling services, and the full support of the Victim Advocate and 
Sexual Assault Response Coordinator.
    There are many reasons why a victim of sexual assault would not 
report an incident, the perceived stigma about being revictimized 
remains a powerful deterrent to reporting for marines. Restricted 
reports can be taken by specified individuals (i.e., SARCs, VAs/UVAs, 
or healthcare personnel). Restricted reporting allows those victims to 
take care of themselves emotionally and physically. Victims who make 
restricted reports often comprise the population who might otherwise 
remain silent. Restricted reporting increased by over 100 percent in 
the fiscal year 2012 Annual Report and serves as an initial indicator 
that our messaging about the reporting options has been effective.
                               assessment
    The Marine Corps is developing ways to monitor victim care and 
services more closely through SARC engagement in an effort to improve 
and better utilize all resources available to victims and to help keep 
victims engaged in the process. A victim survey is being developed to 
accomplish that task and will assess all levels of services provided.
    I have just recently approved and directed new command climate 
surveys. These surveys are mandatory within 30 days of a commanding 
officer taking command and also at the commanding officer's 12-month 
mark in command. Giving commanding officers this tool and holding them 
accountable for the overall health and well-being of their command will 
help us mitigate the high-risk behaviors that tear at the fabric of the 
Corps. The results of the command climate surveys will be forwarded to 
the next higher headquarters in the chain of command. It is important 
to keep in mind however that the command climate surveys are just one 
assessment tool.
                           the investigation
    Before the commanding officer is confronted with a decision about 
what to do with an allegation, the commanding officer will receive 
significant advice and information from three different sources. By 
current Marine Corps practice, once NCIS is notified of a sexual 
assault, there is coordination between a prosecutor and the 
investigating agent(s). This practice enables unity between the 
investigative and prosecutorial functions of the military justice 
system. It also ensures that the commanding officer's evaluation of the 
alleged crime is fed by two distinct and independent professional 
entities--NCIS and the military prosecutor. Additionally, the 
commanding officer is advised by his Staff Judge Advocate (SJA) during 
this stage. The SJA is an experienced judge advocate, well versed in 
the military justice system, and able to advise the commanding officer 
on what actions to direct during the investigation, such as search 
authorizations.
    As a critical component of our Campaign Plan, I directed that our 
legal community completely reorganize into a regional model, which 
gives us the flexibility to better utilize the skills of our more 
experienced litigators. Practically speaking, our new regional model, 
which became fully operational late last year, allows us to place the 
right prosecutor, with the appropriate training, expertise, 
supervision, and support staff, on the right case, regardless of 
location. These prosecutors not only represent the government at the 
court-martial, but they work with NCIS to develop the case and advise 
the commanding officer and his or her SJA about the status of the case.
    I directed this reorganization because an internal self-assessment 
of our military justice docket uncovered an increase in complex and 
contested cases as a percentage of our total trial docket. We realized 
that our historical model of providing trial services needed to be 
revised to better handle these complex cases, many of which involved 
sexual assault. More specifically, within the alleged sexual assault 
cases, we noticed a significant number of alcohol associated sexual 
assaults, which are difficult cases to prosecute, thus I wanted our 
more seasoned trial attorneys available for use by our commanding 
officers.
    The legal reorganization greatly increases the legal expertise 
(based on experience, education, and innate ability) available for 
prosecuting complex cases. The reorganization divided the legal 
community into four geographic regions--National Capital Region, East, 
West, and Pacific. These regions are designated Legal Service Support 
Areas (LSSA) and are aligned with the structure of our regional 
installation commands. Each LSSA contains a Legal Services Support 
Section (LSSS) that is supervised by a Colonel Judge Advocate Officer-
in-Charge. Each LSSS contains a Regional Trial Counsel (RTC) office 
that is led by an experienced Lieutenant Colonel litigator whose 
extensive experience provides effective regional supervision over the 
prosecution of Courts-Martial cases. This new construct provides for 
improved allocation of resources throughout the legal community and 
ensures that complex cases, such as sexual assaults, are assigned to 
experienced counsel who are better suited to handle them. After our 
reorganization, we have increased the experience level in our trial bar 
by over 20 percent from the previous year.
    The Marine Corp's ``Special Victim Capability'' resides in the RTC 
offices through the use of CTT. The CTT is assembled for a specific 
case and may contain any or all of the following: a civilian Highly 
Qualified Expert (HQE), experienced military prosecutors, military 
criminal investigators, a legal administrative officer, and a 
paralegal. The civilian HQE is an experienced civilian sexual assault 
prosecutor who has an additional role training and mentoring all 
prosecutors in the region. The HQEs are assigned to the RTCs and work 
directly with prosecutors, where they will have the most impact. HQEs 
report directly to the RTC and provide expertise on criminal justice 
litigation with a focus on the prosecution of complex cases. In 
addition to their principal functions, the HQEs also consult on the 
prosecution of complex cases, develop and implement training, and 
create standard operating procedures for the investigation and 
prosecution of sexual assault and other complex cases. The criminal 
investigators and the legal administrative officer in the RTC office 
provide a key support role in complex prosecutions. Historically, a 
prosecutor was individually burdened with the coordination of witnesses 
and experts, the gathering of evidence, background investigations, and 
finding additional evidence for rebuttal, sentencing, or other aspects 
of the trial. These logistical elements of a trial are even more 
demanding in a complex trial; the presence of criminal investigators 
and the legal administrative officer allow Marine Corps prosecutors to 
focus on preparing their case.
    Our Reserve Judge Advocates, who are experienced criminal 
prosecutors, are brought on active duty and made available to mentor 
our active duty Judge Advocates either during training or on specific 
cases. To ensure an adequate level of experience and supervision not 
only at the headquarters level, but also in each LSSS, we more than 
doubled the number of field grade prosecutors we are authorized to have 
on our rolls from 11 to 25. We also specifically classified certain key 
supervisory military justice billets to require a Master of Laws degree 
in Criminal Law.
                        the disposition decision
    When NCIS completes its investigation, the commanding officer must 
make a disposition decision. Essentially, the commanding officer must 
decide if the case should go to court-martial or some lesser forum. 
There are two important points to cover at this stage. First is the 
type of commanding officer who is making this decision. Second is the 
process the commanding officer uses to make his or her decision.
    On April 20, 2012, the Secretary of Defense (SECDEF) issued a 
memorandum withholding Initial Disposition Authority (IDA) in certain 
sexual assault offenses to the Colonel, O-6, SPCMCA level. The SECDEF 
withheld the authority to make a disposition decision for penetration 
offenses, forcible sodomy, and attempts to commit those crimes. This 
withholding of IDA to a Sexual Assault Initial Disposition Authority 
(SA-IDA) also applies to all other alleged offenses arising from or 
relating to the same incident, whether committed by the alleged 
offender or the alleged victim (i.e., collateral misconduct). On June 
20, 2012, I expanded this O-6 level withholding to include not just 
penetration and forcible sodomy offenses, but all contact sex offenses, 
child sex offenses, and any attempts to commit those offenses.
    My expansion of the scope of the SECDEF's withhold of IDA is 
another example of the important role a commanding officer plays in 
military justice. I felt it was important for good order and discipline 
to make it clear to our marines that all types of nonconsensual sexual 
behavior were worthy of a more senior and experienced commanding 
officer's decision. I also made it clear that under no circumstance 
could the SA-IDA forward a case down to a subordinate authority for 
disposition.
    Before discussing the procedures our SA-IDAs use to make the 
initial disposition decision, I want to point out a specific Marine 
Corps policy on collateral misconduct by an alleged victim (e.g., 
underage drinking). Marine SA-IDAs are encouraged to defer adjudication 
of any alleged victim collateral misconduct until the more serious non-
consensual sex offenses are adjudicated. This policy is specifically 
aimed at encouraging victim reporting and making the fairest decision 
regarding collateral misconduct at the most appropriate time.
    In accordance with Rule for Court-Martial (RCM) 306(c), the SA-IDA 
for sexual assaults may dispose of charged or suspected offenses 
through various means: ``Within the limits of the commanding officer's 
authority, a commanding officer may take the actions set forth in this 
subsection to initially dispose of a charge or suspected offense,'' by 
taking: (1) no action, (2) administrative action, (3) imposing Non-
Judicial Punishment, (4) disposing of charges through dismissal, (5) 
forwarding charges to a superior authority for disposition, or (6) 
referring charges to a Court-Martial.
    Before making a decision regarding the initial disposition of 
charges, the Convening Authority must confer with his or her SJA. In 
the Marine Corps model for providing legal services, the provision of 
legal services support (i.e. trial and defense services, review, civil 
law, legal assistance) is completely divorced from the provision of 
command legal advice. Practically, this means the commanding officer's 
SJA is not affiliated with the prosecutors who evaluate the evidence in 
the case and recommend whether to take a case to trial. Effectively, 
this ensures the commanding officer and his SJA receive impartial 
advice (in addition to information from NCIS) in order to make an 
appropriate and well-informed disposition decision in accordance with 
RCM 306.
    If a commanding officer decides to proceed with charges against an 
alleged offender, the commanding officer will file a request for legal 
services with the LSSS that services the command.
                      the article 32 investigation
    Before a case can go to a General Court-Martial, the commanding 
officer must first send the case to an Article 32 investigation. 
According to Article 32, UCMJ, ``[n]o charge or specification may be 
referred to a General Court-Martial for trial until a thorough and 
impartial investigation of all the matters set forth therein have been 
made.'' A General Court-Martial may not proceed unless an Article 32 
investigation has occurred (or the accused has waived it). Unlike a 
grand jury under Federal Rule of Criminal Procedure 6, the proceeding 
is not secret and the military accused has the right to cross-examine 
witnesses against him or her.
    RCM 405 governs the conduct of the Article 32 investigation and 
states in its discussion that ``the investigating officer should be an 
officer in the grade of major . . . or higher or one with legal 
training . . . and may seek legal advice concerning the investigating 
officer's responsibilities from an impartial source.'' As a matter of 
regulation in the Marine Corps, for a case alleging a sexual assault, 
the Article 32 investigating officer (IO) must be a Judge Advocate who 
meets specific rank and experience requirements, in accordance with 
Marine Corps Bulletin (MCBul) 5813, ``Detailing of Trial Counsel, 
Defense Counsel, and Article 32, UCMJ, Investigating Officers.'' MCBul 
5813 was published on 2 July 2012 and ensures that Judge Advocates who 
are detailed as trial counsel (TC), defense counsel (DC), and Article 
32 IOs possess the appropriate expertise to perform their duties.
    Once the Article 32 investigation is complete, the IO makes a 
report to the Convening Authority that addresses matters such as the 
sufficiency and availability of evidence, and more importantly, 
contains the IO's conclusions whether reasonable grounds exist to 
believe that the accused committed the offenses alleged and 
recommendations, including disposition. Although the rules of evidence 
generally do not apply at an Article 32 investigation, it is important 
to note that the evidentiary rape-shield law and all rules on 
privileges do apply.
    Before deciding how to dispose of charges and allegations, the 
convening authority again receives advice from his or her SJA and then 
decides how to dispose of the charges and allegations. Prior to making 
a disposition decision, Convening Authorities also take the victim's 
preference into consideration. Victim advocates, SARCs, and the victim 
can express preferences to the trial counsel, who will communicate 
directly with the SJA and Convening Authority. If the commanding 
officer decides to move forward, he or she may refer the charges to a 
general court-martial or a lesser forum.
                             court-martial
    Since the formation of our CTTs in October 2012, we have seen 
significant improvements in our ability to successfully prosecute 
Courts-Martial involving sexual assault offenses. After the first 6 
months of our legal reorganization (October 2012-March 2013), we 
compared court-martial disposition data against the same 6-month period 
from the previous year (October 2011-March 2012). Here are our main 
findings:

         A 77 percent increase in the number of cases involving 
        sex offenses that went to court-martial (from 31 to 55). We 
        attribute that significant increase to three main things: 
        first, an improved investigative effort as a result of 
        improvements in NCIS' ability to investigate cases, along with 
        the force multiplying effect of our embedded investigators; 
        second, the dedication of increased prosecution resources to 
        complex cases; and three, increased reporting based on our 
        Campaign Plan efforts.
         A 94 percent increase in the number of general courts-
        martial in cases dealing with sexual assault offenses (from 19 
        to 37).
         For General Courts-Martial involving sexual assault 
        offenses, an 89.5 percent overall conviction rate, with 62.5 
        percent of those convictions for sexual assault offenses. In 
        the 30 cases where there was a conviction for a sexual assault 
        offense, 90 percent of the sentences included a punitive 
        discharge. We also almost doubled the amount of sexual assault 
        convictions receiving confinement in excess of 5 years (from 
        28.5 percent to 44 percent).
         Between the two 6-month periods, there was an 18-
        percent increase in the conviction rate of charged sexual 
        assault offenses.

    Overall, the initial data from our legal reorganization shows that 
our CTTs are prosecuting more cases with better results. We expect this 
trend to continue and will closely monitor the statistics to identify 
any other relevant trends. This set of initial data also validates my 
belief that a commanding officer-based system of military justice can 
successfully prosecute complex cases if we are smart in how we dedicate 
the appropriate investigative and prosecutorial resources.
    My focus to this point has been on the prosecution function within 
the Marine Corps. What must not be lost in our discussion of offender 
accountability, is the primary goal of justice in our courtrooms. I 
must ensure that each marine accused receives a constitutionally fair 
trial that will withstand the scrutiny of appeal. To that end, in 2011 
we established the Marine Corps Defense Services Organization (DSO), 
which placed all trial defense counsel under the centralized 
supervision and operational control of the Chief Defense Counsel of the 
Marine Corps. This change was designed to enhance the independence of 
the Marine Corps DSO and the counsel assigned to it. The DSO also 
established a Defense Counsel Assistance Program to provide assistance 
and training to the DSO on sexual assault and other cases.
    During the Court-Martial process, we take special care to ensure 
that the rights and interests of victims are protected. The Military 
Rules of Evidence (MRE) provides the same protections as our Federal 
and State courts against the humiliation, degradation and intimidation 
of victims. Under MRE 611, a military judge can control the questioning 
of a witness to protect a witness from harassment or undue 
embarrassment. More specifically for sexual assault cases, the 
military's ``rape shield'' in MRE 412 ensures that the sexual 
predisposition and/or behavior of a victim is not admissible absent a 
small set of well-defined exceptions that have survived extensive 
appellate scrutiny in Federal and military courts (the exceptions 
listed in MRE 412 are identical to the exceptions listed in Federal 
Rule of Evidence 412). In addition, victims also have the protection of 
two special rules on privileges. Under MRE 513, a patient (victim) has 
the privilege to refuse to disclose, and prevent another person from 
disclosing, a confidential communication between the patient and a 
psychotherapist. Under MRE 514, the military has created a ``Victim 
advocate-victim privilege'' that allows a victim to refuse to disclose, 
and prevent another person from disclosing, a confidential 
communication between the victim and a victim advocate in a case 
arising under the UCMJ. These two evidentiary privilege rules ensure 
that victims have a support network they are comfortable using and that 
they do not have to fear that their efforts to improve their mental 
well-being will be used against them at a court-martial.
    Marine prosecutors, paralegals and NCIS investigators, along with 
full-time, professional, credentialed SARCs and Victim Advocates (VAs), 
provide individualized support to inform and enable victims to 
participate in the military justice process. The Marine Corps is in the 
process of hiring 25 full-time credentialed SARCs and 22 full-time 
credentialed VAs to augment the over 70 SARCs and 955 Uniformed and 
civilian VAs presently in the field. Hiring and credentialing are on 
track to be completed by October 2013.
          post-trial--the convening authority's clemency power
    On May 7, 2013, the Secretary of Defense submitted proposed 
legislation to Congress that would modify the Convening Authorities 
ability to take action on the findings and sentence of a court-martial 
during the post-trial phase. Specifically, the legislation would limit 
the commanding officer's ability to act on the findings of a court-
martial to a certain class of ``minor offenses,'' and also require a 
written explanation for any action taken on the findings or the 
sentence of a court-martial. I support exploring these proposed 
modifications for two reasons.
    First, I believe the proposed modifications are reasonable 
adjustments to a specific phase of the court-martial process that has 
changed significantly since its inception. The commanding officer's 
broad authority under Article 60 was established during a time when the 
key participants of the trial--the prosecutors, defense counsel, and 
military judges--were not professional lawyers, and when there was not 
a comprehensive system of appellate review. The professionalization of 
our court-martial practice and the addition of multiple layers of 
appellate review justify reducing the commanding officer's broad 
authority to take action on the findings in cases not involving ``minor 
offenses.'' I believe the Secretary of Defense's proposal properly 
excludes the right class of cases that would be left to the appellate 
review process for the correction of legal error and/or clemency. 
Similarly, I believe that a commanding officer, based on his or her 
specific needs for good order and discipline, should retain the ability 
to take action on the findings of ``minor offenses'' identified in the 
proposal.
    Second, the proposal would improve the transparency of the military 
justice system. When the commanding officer does believe it is 
necessary to take action under Article 60, that action should be as 
transparent and visible as every other aspect of the court-martial. The 
proposed requirement for a written explanation for any Article 60 
action ensures accountability and fairness and will preserve the trust 
and confidence servicemembers and the public have in our military 
justice system.
                               conclusion
    I fully acknowledge that we have a problem and that we have much to 
do. We must protect our greatest asset--the individual marine . . . 
they are and will always be the strength of our Corps. That said, I am 
determined to establish a culture that is intolerant of sexual 
harassment and sexual assault, one that promotes mutual respect and 
professionalism, and maintains combat readiness. I am determined to fix 
this problem and will remain fully engaged in developing solutions 
towards prevention efforts and maintaining our high standards of good 
order and discipline.

    Chairman Levin. Thank you very much, General Amos.
    General Welsh.

 STATEMENT OF GEN. MARK A. WELSH III, USAF, CHIEF OF STAFF OF 
  THE AIR FORCE; ACCOMPANIED BY LT. GEN. RICHARD C. HARDING, 
    JAGC, USAF, JUDGE ADVOCATE GENERAL OF THE U.S. AIR FORCE

    General Welsh. Thank you, Chairman Levin, Ranking Member 
Inhofe, members of the committee, for allowing us to be here 
today together to address this very difficult, but critically 
important topic.
    Lieutenant General Harding and Chief Master Sergeant Cody 
of the Air Force and I are privileged to join this group.
    Mr. Chairman, may I offer, on behalf of this entire panel 
and all of our men and women in the U.S. military, our 
sympathies on the loss of Senator Lautenberg. I know many of 
you were very close to him, and we are so very sorry for your 
loss.
    Chairman Levin. We thank you for that.
    General Welsh. General Odierno described very well the 
reporting process and the action process for response to a 
sexual assault. The Air Force's process, Mr. Chairman, is 
almost identical. I will associate myself with the remarks of 
every Service Chief you have heard so far with the severity of 
the problem and avoid some of the details and defer to my 
written statement for that.
    Mr. Chairman, I would like to say that sexual assault is a 
crime, as the Commandant just said, and is unacceptable in any 
of our Services. Moreover, I believe it undermines the mission 
effectiveness of our great force. Everyone on this panel is 
committed to doing whatever is necessary to ensure an 
environment free from sexual harassment, disrespectful 
treatment, and the crime of sexual assault.
    Air Force leaders have worked hard to make sure our people 
understand that it is every airman's responsibility to ensure 
unit climates are free from harassment and disrespect, that 
every airman is either part of the solution or part of the 
problem, and that there is no middle ground.
    That message starts with me, as does the accountability for 
the solution. It is my responsibility to ensure that the Air 
Force welcomes new airmen into a safe, respectful, and 
professional environment, that new airmen are taught standards 
of behavior, discipline, and respect for others, that unit 
commanders and supervisors enforce and live by those same 
standards, and if they do not, that they are held harshly 
accountable.
    That if sexual assault does occur, that victims are treated 
with compassionate care, that they feel confident to report the 
incident without fear of retaliation or reprisal, and that 
alleged perpetrators are given a fair and impartial forum and 
then firmly held accountable if proven guilty.
    Nothing saddens me more than knowing that this cancer 
exists in our ranks and that victimized airmen on what is 
unquestionably the worst day of their life sometimes feel they 
can't receive compassionate, capable support from our Air 
force, or they don't trust us enough to ensure that justice is 
done.
    Clearly, it is time for thoughtful consideration of every 
reasonable option. Like my fellow Service Chiefs, I believe the 
576 panel gives us the option to look at the unintended 
consequences, the second- and third-order effects of major 
changes, and decide which ones make sense and which might not.
    In the meantime, none of us will be standing still. 
Commanders shouldn't just be part of the solution. They must be 
part of the solution, or there will be no solution. That is the 
way our systems operate.
    I will tell you this. None of us are going to slow down in 
this effort because we all feel the same about one thing. We 
all love the people in our Service. All of us have families, 
and we immediately relate to them every time we see a report of 
this crime.
    I have five sisters. I have a mother. They set my moral 
compass on this issue. I have a daughter who is looking at 
coming into the U.S. Air Force. I will not be tolerant of this 
crime. None of us will.
    Secretary Hagel said it clearly. Sexual harassment and 
sexual assault are a profound betrayal of sacred oaths and 
sacred trusts, and they must be stamped out of America's 
military. I know that this hearing is about helping us do 
exactly that, and I am grateful for your continued commitment 
to this effort.
    I look forward to the conversation.
    [The prepared statement of General Welsh follows:]
           Prepared Statement by Gen. Mark A. Welsh III, USAF
    Sexual assault and unprofessional relationships are unacceptable, 
they have no place in our Air Force, and their prevalence undermines 
the mission effectiveness of our great Service. The U.S. Air Force 
cannot and will not tolerate such behavior, and as I have done since 
becoming Air Force Chief of Staff, I will continue to pursue an 
organizational environment free from sexual harassment, disrespect, and 
the crime of sexual assault.
    As an Air Force, we have worked hard to disseminate the message 
that it is every airman's responsibility to ensure unit climates are 
free from harassment and disrespect. You are either part of the 
solution or part of the problem; there is no neutral position. That 
message starts at the top, and it is my responsibility to ensure that 
the Air Force family welcomes new airmen into a safe, respectful, and 
professional environment; that new airmen are taught standards of 
behavior and discipline; that unit commanders enforce and live by those 
standards; and that if sexual misconduct occurs, victims are treated 
with compassionate care, they feel confident to report the incident 
without fear of retaliation or reprisal, and that alleged perpetrators 
are given a fair and impartial forum and held accountable if proven 
guilty. Nothing saddens me more than knowing this cancer exists in our 
ranks, and that victimized airmen, on possibly the worst day of their 
lives, sometimes feel they cannot receive compassionate, capable 
support from our Air Force. This is an issue I work every day to 
remedy, primarily through those installation- and unit-level commanders 
who are so critical to good military order, discipline, and morale, and 
who must be personally involved in establishing the proper 
organizational climate and character.
    Since very early in my tenure as Air Force Chief of Staff, I have 
emphasized this issue to multiple echelons of Air Force leadership, and 
to our airmen themselves. Every Air Force four-star general received my 
guidance during our CORONA Fall conference in early October 2012. 
Secretary Donley, then-Chief Master Sergeant of the Air Force Roy, and 
I issued a joint letter to airmen on November 15, 2012, expressing 
clear and unambiguous direction to the force, urging them to become 
personally involved in driving sexual misconduct from our ranks. We 
brought all 164 Air Force wing commanders--those most influential in 
shaping our Air Force environment and climate at the installation 
level--to Washington on November 28, 2012, to receive not only my 
personal perspective on this issue, but also to encourage meaningful 
dialogue and explore significant policy options for the future.
    Following the wing commander conference, installation leadership 
conducted an Air Force-wide health and welfare inspection during the 
first 2 weeks of December 2012 designed to eliminate environments 
conducive to sexual harassment or unprofessional relationships, both 
possible leading indicators of sexual misconduct. Over 32,000 findings 
were reported by wing commanders at over 100 installations, with 85 
percent of the findings comprised of ``inappropriate'' items like 
unsuitable calendars and magazines displayed in public areas. About two 
percent of the findings were pornographic in nature. All reported items 
were removed, but more importantly, airmen and their commanders 
received a clear message of non-tolerance for sexually-charged 
environments.
    I issued a January 2, 2013, ``CSAF Letter to Airmen'' reinforcing 
the message that images, songs, stories, or so-called ``traditions'' 
that are obscene, vulgar, or that denigrate or fail to show proper 
respect to all airmen, are not part of our heritage and will not be 
accepted as part of our culture. They are not things we value, and they 
ultimately degrade mission effectiveness and hurt unit morale. 
Disrespectful, sexually-charged atmospheres foster a ``permissive 
environment'' for sexual predators, allowing them to pursue their 
criminal acts more easily. By reaffirming respect and professionalism 
within workplace environments, we took an important step toward 
eliminating environments conducive to sexual misconduct. We must 
continue to aggressively pursue that goal.
    We have made progress in the Basic Military Training (BMT) 
environment as well. General Edward Rice, Commander of Air Education 
and Training Command (AETC), has continued to investigate thoroughly 
all allegations of misconduct, to hold perpetrators of misconduct 
accountable, to care for victims of misconduct, and to fix the problems 
that led to the misconduct. Providing a safe and professional training 
environment to our Nation's sons and daughters who choose to become 
airmen is a sacred responsibility. We have worked hard to restore the 
trust of the American public while also honoring the selfless service 
of the great majority of our military training instructors (MTIs) who 
exemplify the highest adherence to our core values of Integrity, 
Service, and Excellence.
    The Air Force does not prejudge the accused--every airman under 
investigation is presumed innocent until and unless proven guilty. The 
Air Force has completed 19 courts-martial cases related to the BMT 
investigation, with all but one resulting in a conviction.\1\ Three 
MTIs received non-judicial punishment under Article 15 of the Uniform 
Code of Military Justice (UCMJ) for violation of the AETC policy 
against unprofessional relationships. The unprofessional relationships 
were all consensual relationships with students in technical training 
status: one involved social media contact only, one involved a non-
sexual relationship with a student, and the third involved a sexual 
relationship with a student who had graduated from technical training. 
There are eight more trials scheduled, and three other instructors are 
under investigation.
---------------------------------------------------------------------------
    \1\ The case of the sole exception is still open as the Air Force 
has appealed a judge's evidentiary ruling.
---------------------------------------------------------------------------
    We have identified and cared for a total of 63 trainees and 
technical school students involved at Joint Base San Antonio-Lackland. 
Twelve are victims of sexual assault, 40 were allegedly involved in an 
unprofessional relationship with an instructor involving physical 
contact, and 11 were allegedly involved in an unprofessional 
relationship with an instructor involving no physical contact.\2\ The 
vast majority of the misconduct allegations--51 of 63 affected trainees 
and students--fall into the category of unlawful consensual 
``unprofessional relationships'' as defined by AETC policy. All 63 
airmen have been contacted and offered support from base agencies under 
the Air Force's Sexual Assault Prevention and Response (SAPR) program, 
as well as other support services such as legal assistance. Sixty-one 
have accepted some level of Air Force support, including 11 who have 
been assigned victim advocates at their request, and 24 who have 
requested and been assigned Special Victims' Counsel (SVC). The Air 
Force will continue to provide this support to all future victims 
identified as a result of the ongoing BMT investigations. The mending 
of the BMT environment at Lackland AFB has taken time, but due process 
and the deliberative nature of an effective investigation required it. 
I am grateful for the tremendous progress General Rice and his team 
have achieved, and I am confident that the Air Force is firmly on the 
path to restoring the high levels of professional conduct that we 
demand of ourselves, that the BMT environment requires, that our 
trainees deserve, and that the American people expect.
---------------------------------------------------------------------------
    \2\ Eight of the 11 unprofessional relationships not involving 
physical contact were via social media and/or telephone only.
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        sexual assault prevention and response in the air force
    A 2010 Gallup survey revealed that since joining the Air Force, 19 
percent of women and 2 percent of men experienced some degree of sexual 
assault. For 3.4 percent of women and 0.5 percent of men, those 
assaults had occurred in the 12 months preceding the survey. Of those, 
only about 17 percent of the women and 6 percent of the men reported 
the incident. We expect to conduct another Gallup study later this year 
to gauge shifts from this baseline data. The Air Force recorded 614 
reports of sexual assault in fiscal year 2011; in fiscal year 2012, the 
figure rose about 29 percent to 790.\3\ These sexual assaults, as 
reported in the fiscal year 2012 Department of Defense (DOD) Annual 
Report on Sexual Assault in the Military, range from inappropriate 
sexual touching to rape. Other figures suggest a strong tendency to 
under-report, and even more disturbing is that within the Air Force, 
fellow airmen commit the majority of these crimes--brothers- and 
sisters-in-arms who should be protecting and looking out for one 
another. Calling these numbers unacceptable does not do the victims 
justice--in truth, these numbers are appalling!
---------------------------------------------------------------------------
    \3\ 449 unrestricted reports, 399 restricted reports, of which 58 
converted to unrestricted.
---------------------------------------------------------------------------
    The 2010 and 2012 Workplace and Gender Relations surveys provide 
insight as to why victims of sexual assault often do not report the 
assault. Results from both years show that ``they did not want anyone 
to know'' (70 percent); ``they felt uncomfortable making a report'' (66 
percent); and ``they did not think their report would be kept 
confidential'' (51 percent), are the top three barriers to reporting. 
Victims of sexual misconduct often attach undeserved feelings of shame 
to the incident that discourage them from sharing their experiences 
with fellow airmen, family, or their chain-of-command. Some victims 
fear reprisal or retaliation from the alleged perpetrator or their 
friends or their chain of command, while others do not wish to re-live 
the experience through the multiple ``retellings'' of the event that an 
in-depth investigation requires. With minor offenses, airmen often feel 
that the incident was not sufficiently egregious to merit a formal 
report. Despite the existing tendency to under-report, I believe that 
increased attention to this issue, educational efforts to ensure every 
airman knows exactly what constitutes sexual assault in the military, 
and generating trust in the many elements of the victim support 
apparatus are part of the required solution going forward.
    Once a victim does report, there are many avenues of support and 
legal guidance available. The Air Force process, from initial incident 
report through case disposition, is very similar to that of the other 
military Services. A sexual assault victim may initiate either a 
restricted or an unrestricted report of sexual assault. A victim may 
only initiate a restricted report if they voice their initial claim to 
a Sexual Assault Response Coordinator (SARC), a Victim Advocate (VA), 
or a medical professional. For restricted reports, the victim's 
identity and/or identifying information is not provided to anyone in 
the supervisory chain or to law enforcement.
    Once the victim makes his/her initial report to a SARC, VA, or 
medical professional, the victim's reporting options are fully 
explained and a personal victim advocate (VA) is appointed, if desired. 
In the Air Force, SARCs are government civilians or officers, located 
at every Air Force installation, with a full-time responsibility to 
handle sexual assault response. Victim advocates are trained volunteers 
who work with victims on a part-time basis.
    If the victim's initial report is to a supervisor, commander, or 
law enforcement official, the report must be initiated as an 
unrestricted report, and must be investigated by law enforcement. If 
the victim tells a friend who tells a supervisor, commander, or law 
enforcement, this is considered an unrestricted report of sexual 
assault and must be investigated by law enforcement. If law enforcement 
responds to a scene involving allegations of sexual assault, the Air 
Force Office of Special Investigations (AFOSI) is notified immediately, 
and the base defense operations center will enter a sanitized entry 
into the law enforcement blotter, a controlled document with very 
limited distribution, that captures chronologically all security forces 
activities. The blotter entry does not include personally-identifying 
information for either the victim or the alleged offender, but it will 
identify who was notified of the incident, particularly AFOSI and the 
chains of command of all parties involved. AFOSI will notify the SARC, 
who will then engage the victim to offer support. There is no 
requirement for victims to report a sexual assault to their supervisor 
or commander personally.
    DOD regulations require the SARC to provide the installation 
commander with information on unrestricted and restricted reports of 
sexual assault within 24 hours,\4\ and all sexual assault reports, both 
restricted or unrestricted, route through the installation SARC and the 
vice wing commander to the installation command post within 48 hours of 
notification. If the report is unrestricted, only the victim's duty 
status (military or civilian) is included; if restricted, only the fact 
that a report has been filed is forwarded. Installation command posts 
forward operations reports up the chain of command, through their 
respective major command commanders, to Air Force headquarters. These 
reports are forwarded to me on a weekly basis. For unrestricted 
reports, the victim's commander is notified as soon as possible, either 
by the SARC, the unit first sergeant, or medical personnel. Upon 
initiating an investigation, AFOSI also provides memoranda to the unit 
commanders of all subjects involved, alerting them to the 
investigation.
---------------------------------------------------------------------------
    \4\ DODI 6495.02, Enclosure 5, para. 3(g)(2).
---------------------------------------------------------------------------
    From the moment an alleged assault becomes known, the SARC informs 
the victim of all available support services, including counseling, a 
safe place to stay, access to a special victims' counsel (SVC) and the 
confidentiality associated with sexual assault forensic examinations 
(SAFEs). AFOSI will offer a victim a SAFE if circumstances warrant, 
and, if conducted, accepts custody of the SAFE kit from the issuing 
military treatment facility or local community hospital. The SARC 
arranges a follow-up meeting with the victim the morning after any 
alleged sexual assault.
    AFOSI works closely with the prosecutors from the Staff Judge 
Advocate's (SJA) office as they conduct and complete the investigation. 
Commanders are required to provide victims who file unrestricted 
reports monthly updates on the status of investigative, medical, legal, 
or command proceedings until final disposition.\5\ The SARC, VA, and 
SVC--if requested--maintain contact with the victim throughout the 
investigation. AFOSI is not permitted to ``unfound'' an allegation of 
sexual assault after an investigation. AFOSI must, in all cases, 
provide their report to the alleged offender's commander for 
disposition after every sexual assault investigation. The AFOSI reports 
include a narrative of all of the investigation's steps, a description 
of all the available evidence, and a copy of all witness statements. 
SJAs use the same investigative report to provide commanders 
appropriate disposition recommendations. Since recent Secretary of 
Defense-directed legal reforms have withheld initial disposition 
authority for sexual assault cases from commanders who are not a 
special court-martial convening authority with the rank of at least O-6 
(typically Air Force wing commanders), the squadron commander no longer 
has the authority to issue initial disposition decisions. The squadron 
commander, an O-4 or O-5 typically with 12 to 16 years of service, now 
sends the case materials to the special court-martial convening 
authority with his or her own disposition recommendation. If the 
special court-martial convening authority accepts the recommendation, 
he or she may elect to take action at their level, or they may return 
the case to the squadron commander for disposition. If the special 
court-martial convening authority disagrees with the recommendation, he 
or she may still take action at their level, or forward the case to the 
general court-martial convening authority for disposition. Throughout 
the process, the legal office--through the victim and witness 
assistance program--consults with the victim and obtains his or her 
input on whether to prefer charges, or to accept the accused's 
discharge or resignation in lieu of court-martial. In over 99 percent 
of all Air Force cases where an SJA recommended a court-martial, the 
convening authority's disposition decision followed the SJA advice. 
Also, Air Force prosecution and conviction rates for sexual assault 
have been very similar to national averages.\6\
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    \5\ DODI 6495.02, Enclosure 5, para. 3(g)(2).
    \6\ Rape, Abuse, and Incent National Network (RAINN) nationally-
tracked prosecution and conviction rates are 26 percent and 56 percent 
respectively. Using the RAINN model to calculate the numbers, USAF 
prosecution rates were 24 percent and conviction rates were 57 percent 
for fiscal year 2012.
---------------------------------------------------------------------------
    Despite the progress we have made in the Air Force, more must be 
done. The Air Force has partnered with the Office of the Secretary of 
Defense (OSD) to conduct a top-to-bottom review of current SAPR 
training requirements to determine their sufficiency and effectiveness. 
Secretary Hagel has further directed that all Services re-train and re-
certify their respective SARCs and VAs, and the Air Force is in the 
process of doing so. Furthermore, in accordance with the National 
Defense Authorization Act for Fiscal Year 2012, all of our over 3,100 
volunteer victim advocates have been informed of the certification 
required to serve victims after October 1, 2013, and we are on track to 
hire and place a full-time, fully certified victim advocate at every 
installation by October 1, 2013.
    In coordination with OSD, the Air Force has implemented a special 
victims' capability comprised of investigators and attorneys equipped 
with specialized training in sexual assault cases. This special victims 
unit (SVU) possesses advanced training in sexual assault investigation 
and litigation, and is qualified to handle the most difficult sexual 
assault cases. Twenty-four AFOSI agents, whose sole purpose is to 
investigate sexual assault crimes, serve in this capacity, and nine of 
our most experienced senior trial counsel also contribute to the SVU. 
All told, 48 AFOSI agents and 24 trial counsel have jointly attended 
the Federal Law Enforcement Training Center's sex crimes investigation 
training program this fiscal year. This summer, additional AFOSI agents 
and trial counsel will attend an advanced sexual assault litigation 
course at the Air Force JAG school.
    In January, the Air Force also stood up the SVC program--separate 
and distinct from SVU--as a pilot program for DOD. SVCs are providing 
comprehensive and compassionate legal representation to victims, and in 
a few short months the program has already made a profound difference 
for our victims and our Air Force. To date,
    these attorneys are zealously representing over 300 clients in 
various stages of the investigatory and adjudicatory phases of their 
cases. Feedback from those who have received SVC services has been very 
positive and extremely encouraging. A report on the pilot program's 
performance, due to OSD on November 1, 2013, will likely affirm these 
initial impressions.
    To sustain and capitalize upon this momentum, I directed a complete 
review of manpower and resource requirements pertaining to the Air 
Force SAPR program which identified a shortfall of 224 SARC, VA, and 
SVC positions across the enterprise. We will work to fill those billets 
immediately, prioritizing the installation-level first. We will also 
continue to expedite base transfer requests for all Air Force sexual 
assault victims. We approved all 46 expedited transfer requests over 
the past year, to include both permanent change-of-station and local 
installation reassignments.
    Secretary Donley and I also recently approved realignment of the 
SAPR office within the Air Force headquarters hierarchy. The expanded 
office will be led by a General Officer reporting directly to the Vice 
Chief of Staff of the Air Force. We will also infuse the office with a 
significant increase in dedicated manpower and expertise, to include 
recruiting outside experts in this field to advise and assist our 
efforts as full-time teammates. The revised SAPR office will be better 
equipped to execute our comprehensive approach to combating sexual 
assault along five lines of effort: Personal Leadership, Climate and 
Environment, Community Leadership, Victim Response, and Holding 
Offenders Accountable.
                         ucmj and the commander
    Since becoming the Air Force Chief of Staff, I have worked hard to 
combat sexual assault within our ranks. I know our commanders and 
supervisors truly care for their airmen, and appreciate the tremendous 
sacrifices they and their families make every day in service to our 
Nation. I recognize that the American people send the U.S. military 
their very best to serve, and that we have been entrusted by the 
families of every airman with the care of their sons and daughters. I 
take this responsibility very seriously, and have shared my thoughts on 
this subject with airmen at every level of our Air Force.
    Airmen should have no doubt about who will hold them accountable 
for mission performance and adherence to standards. Airmen expect their 
commander to define the mission, ensure readiness, and hold accountable 
other airmen who fail to meet their responsibilities or live up to our 
standards of conduct. The commander must have both the responsibility 
and the authority to address issues that affect the good order and 
discipline of their unit. Military units reflect the character, 
demeanor, and priorities of their commanders. Commanders having the 
authority to hold airmen criminally accountable for misconduct in-
garrison is crucial to building combat-ready, disciplined units. In a 
deployed environment, where lives are in immediate and proximate 
danger, the importance of unit cohesion driven by a commander's ability 
to maintain order, discipline, morale, and to hold airmen accountable 
cannot be overstated.
    There are many current legislative proposals that seek to alter the 
UCMJ, some in significant ways. The UCMJ traces its roots to the 1775 
Articles of War, with 238 years of proven history and combat 
effectiveness behind it. During the intervening 238 years, this body of 
law--with commanders serving in a ``gate-keeping'' role over courts-
martial--has ensured a well-disciplined military, one that has fought 
the Nation's wars and defended national interests extremely well. 
Bodies of law like the UCMJ can and should change over time, but any 
changes should be conducted prudently, deliberatively, and with 
thoughtful consideration of unintentional second- and third-order 
effects.
    Over the last 5 years, only 1 of 327 Air Force sexual assault 
findings resulted in a complete reversal of court martial findings by 
the convening authority with no follow-on disciplinary action--the 
Wilkerson case--which has served as the catalyst for recent calls for 
change. The current Article 60 \7\ legislative proposal from the 
Secretary of Defense that places limits on commanders' authority to 
overturn any conviction represents a thoughtful and significant step in 
the right direction to limit commander authority appropriately.
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    \7\ Action by the convening authority.
---------------------------------------------------------------------------
    I believe the decision to elevate court-martial initial disposition 
authority for sexual assault cases to the O-6 level will also produce 
significant results over time. The Air Force is already seeing 
significantly higher referral rates for sexual assault cases during 
fiscal year 2013 than in previous years. It will take time to assess 
fully the success of these changes. But to truly turn the corner on 
sexual assault, we must thoroughly consider every reasonable 
alternative in our effort to find the set of ``game changers'' that 
will lead to the elimination of this crime from our Air Force.
    As we do so, it will be important for us to remember that 
commanders are also the key to permanent organizational and 
environmental change. From racial integration to the repeal of ``don't 
ask, don't tell,'' unit commanders have been absolutely essential to 
the acceptance of new policy and standards of conduct. The commander's 
strong and effective role throughout unit climate shifts is crucial--
including the reaffirmation of environments free of sexual misconduct. 
Changing views on respect and dignity does not happen overnight and it 
requires consistent leadership focus. We must avoid creating an 
environment where commanders are less accountable for what happens in 
their individual units, stifling the very environmental shift we seek. 
The U.S. military takes pride in its ``can-do'' attitude, and we have 
led the way on a range of societal imperatives. We can, and will, do 
the same on sexual assault. If we are serious about change, we must 
reinforce to commanders that success depends on their sound judgment in 
all matters involving good order and discipline, not separate them from 
the problem.
                                summary
    Secretary Hagel said it clearly--sexual harassment and sexual 
assault in the military ``are a profound betrayal of sacred oaths and 
sacred trusts; this scourge must be stamped out.'' \8\ The Air Force 
has made steady progress in sexual assault response, but preventing the 
crime itself remains the goal. Regardless of their background, once a 
young man or woman becomes an airman, they are held to a higher 
standard, as service in the most capable military in the world demands. 
That unmatched capability requires adherence to a code of behavior that 
exceeds societal norms. The unit commander is the most visible champion 
and example of the norms we expect our people to meet, personifying 
expectations of discipline daily with his or her airmen. Commanders 
knit combat units into an effective fighting force, and airmen reflect 
the character and values of their commander--commanders are the key to 
promoting persistent, healthy environments of respect and dignity.
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    \8\ Commencement address to 2013 graduating class at West Point, 
May 25, 2013.
---------------------------------------------------------------------------
    We swear an oath to uphold and defend our Constitution, and we 
willingly agree to lay down our lives in defense of the freedoms we all 
cherish. About 1 percent of Americans volunteer to serve their Nation 
in uniform, and as U.S. service men and women, we sacrifice a portion 
of our personal freedoms to bond effectively as a cohesive member of 
America's military team. Because of this, we must instill a climate of 
respect in every Air Force unit, and into the mind of every airman. 
Every airman must desire to do the right thing, to respect and look out 
for fellow airmen, and to truly live by our core values of Integrity 
First, Service Before Self, and Excellence in All We Do. No one who 
truly lived those values would ever walk down a path that leads them to 
commit this terrible crime.
    Americans hold their military to a high standard, and rightly so. 
Air Force leadership at every level has an obligation to protect and 
strengthen the force, and to be worthy of the confidence of our airmen 
and the Nation we serve. We have a duty to live by our core values and 
to meet or exceed the high standards the American people expect of us. 
As Secretary Donley has stated, ``this is family business,'' and as an 
Air Force family, we must do a better job of caring for one another. I 
will never stop spreading this message, and we will never slow down our 
efforts to ensure that victims receive the best, most capable, and most 
thoughtful care and advice possible. Until we succeed, I will do 
everything in my power to eradicate sexual assault from the ranks of 
the U.S. Air Force. Nothing else is acceptable.

    Chairman Levin. Thank you very much, General Welsh.
    Admiral Papp.

 STATEMENT OF ADM ROBERT J. PAPP JR., USCG, COMMANDANT OF THE 
COAST GUARD; ACCOMPANIED BY RADM FREDERICK J. KENNEY JR., USCG, 
         JUDGE ADVOCATE GENERAL OF THE U.S. COAST GUARD

    Admiral Papp. Good morning, Chairman Levin, Ranking Member 
Inhofe, and the distinguished members of the committee. I 
appreciate the opportunity to testify before you this morning.
    Sexual assault is a violent crime that devastates its 
victim. It also destroys unit discipline. It erodes 
cohesiveness, and it degrades our readiness. I am personally 
committed to eliminating it from our Coast Guard.
    We are making progress. New policies, enhanced training, 
improved access to victim support services, and greater 
reporting opportunities, including those outside the chain of 
command, provide us with important tools to achieve our goal of 
eliminating sexual assault from the Coast Guard. However, we 
must and we will do more.
    In a message last year to all my Coast Guard men and women, 
I told the Service, ``We will intervene to prevent or halt 
these acts when they are occurring. We will investigate and 
discipline those who have violated law and service policy. We 
will insist that all our shipmates live by our core values. 
Most importantly, there are no bystanders in the Coast Guard.''
    Recently, I followed this with a commander's intent message 
that initiates our Service-wide campaign plan for eliminating 
sexual assault from the Coast Guard. Yesterday, I briefed 
Secretary Napolitano on our efforts. She directed me to ensure 
that every member of the Coast Guard is clear regarding their 
responsibility and to take whatever action is required to 
eradicate sexual assault from our Service and to ensure that 
victims receive immediate, compassionate, and complete support.
    The Coast Guard system of reporting, investigation, and 
prosecution of sexual assault cases is largely similar to the 
Army's, as described by General Odierno. Details that are in 
any way different are contained in my written statement.
    This is, first and foremost, a leadership responsibility. 
Every commander must create a culture that is intolerant of any 
unwelcome sexual contact or the behaviors that enable it.
    We have enhanced our training so that all hands recognize 
indicators of this behavior and are prepared to intervene. We 
must also demand command climates that allow victims to come 
forward, knowing they will be protected and cared for without 
fear of reprisal or stigma.
    Prevention is the first and best option. However, when a 
response is necessary, when this crime does occur, we will hold 
those predators accountable.
    The military justice system is a critical tool for doing 
this. We give commanders great responsibility to act 
independently and demanding in dangerous situations, and we 
hold them accountable for the results.
    I recognize the military justice system is not perfect, and 
I welcome considered, well-reasoned improvements where they are 
needed. However, I have serious concerns about legislation that 
would fundamentally alter the role of commanders without full 
consideration of the second- and third-order effects on command 
authority and the ability to maintain unit discipline.
    Stopping sexual assault is also the duty of each and every 
individual. As I said before, there can be no bystanders. Every 
Coast Guardsman must take ownership of this problem and be 
intolerant of any action that minimizes the significance of 
this crime.
    If they see it occurring, they must take action to 
intervene, prevent, or halt it, and then, most importantly, 
report it. Failure to help a shipmate in those circumstances 
demonstrates a lack of courage that is contrary to our core 
values. I expect every Coast Guardsman will display the same 
courage in those circumstances as they would while rescuing 
someone in peril on the sea.
    I look forward to working with this committee to eradicate 
this crime from our midst, and I look forward to your 
questions.
    [The prepared statement of Admiral Papp follows:]
             Prepared Statement by ADM Robert J. Papp, USN
    Good afternoon Chairman Levin, Ranking Member Inhofe, and 
distinguished members of the committee. Thank you for the opportunity 
to testify before this committee about the Coast Guard's commitment to 
eliminate sexual assault from our Service.
    The violent crime of sexual assault plagues our society; it is 
unacceptable in any place. However in the military it is especially 
repugnant because it breaks the sacred bond of trust between 
servicemembers that is vital to readiness and our Nation's security. We 
will not tolerate the crime of sexual assault in the Coast Guard.
    To execute our missions, all Coast Guard personnel must be bound by 
trust and mutual respect for one another. The crime of sexual assault 
not only damages the victim, it undermines morale, degrades readiness 
and damages mission performance. It is a deliberate act that violates 
law, policy and our Core Values of Honor, Respect, and Devotion to 
Duty.
    We have made progress in improving our ability to prevent and 
respond to sexual assaults in the Coast Guard. New policies, enhanced 
training, improved access to victim support services, and greater 
communications provide us with important tools to achieve our goal of 
eliminating sexual assault from the Coast Guard. Despite some progress, 
we must and will do more to combat sexual assault.
    As I told Coast Guard men and women worldwide a little over a year 
ago: ``We will intervene to prevent or halt these acts when they are 
occurring. We will investigate and discipline those who have violated 
law and service policy. We will insist that all of our Shipmates live 
by our Core Values. Let me be clear, there are no bystanders in the 
Coast Guard. Respect for our Shipmates demands that each of us have the 
courage to take immediate action to prevent or stop these incidents.''
    Sexual assault prevention and response encompasses more than policy 
statements and more than check-the-box training--it must be an 
extension of each servicemember's ethos, inculcated into our everyday 
planning, training, and operations. An operating environment free from 
threat of sexual assault must be part of our culture.
      sexual assault prevention and response policies and programs
    The Coast Guard has strengthened policies and tools to combat 
sexual assault over the past several years. We will continue to improve 
our programs and services. The Coast Guard has previously provided a 
summation to this committee on our Sexual Assault Prevention and 
Response (SAPR) Program initiatives. To recap the program:
    As early as 2002, Coast Guard policy required commands to report 
any allegations of rape or sexual assault to the Coast Guard 
Investigative Service (CGIS) for investigation. In 2006, the Coast 
Guard Investigative Service formally established a distinct CGIS Sex 
Crimes Program and hired a Senior Special Agent to oversee the stand-up 
of the program.
    In 2007, the Coast Guard SAPR instruction was significantly amended 
to include the addition of the restricted reporting option for victims, 
which aligned the Coast Guard's reporting options with the two options 
offered by the Department of Defense (DOD) (restricted and 
unrestricted). Restricted reporting is the process used to disclose to 
specific individuals on a confidential basis that he or she is the 
victim of a sexual assault. Unrestricted reporting is the process used 
to disclose a sexual assault to the chain of command and law 
enforcement authorities. The official policy and guidance was issued in 
December of that same year.
    In 2008, a dedicated Sexual Assault Prevention Program Manager was 
hired to implement and oversee the day-to-day administration of the 
USCG SAPR Program.
    In March 2011, CGIS established a cadre of specially trained and 
credentialed CGIS special agents--known as Family and Sexual Violence 
Investigators (FSVIs). In addition to their standard investigatory 
training, these agents attend advanced courses and seminars on sexual 
assault, domestic violence, and child abuse. CGIS has credentialed 22 
FSVI special agents to date.
    In April 2011, the Vice Commandant of the Coast Guard chartered a 
Sexual Assault Prevention and Response Task Force to examine 
holistically the Coast Guard's posture toward sexual assault in five 
discipline areas: Education/Training; Policy/Doctrine; Investigation/
Prosecution; Communications; and Climate/Culture. Subject matter 
experts from each of these five disciplines met for over a year to 
provide input to the Vice Commandant on ways to improve our SAPR 
Program. The Vice Commandant approved the thirty nine recommendations 
from the Working Groups on January 31, 2013.
    One of the most significant recommendations, the establishment of a 
Flag level Sexual Assault Prevention Council (SAP-C), has already been 
implemented, with the Deputy Commandant for Mission Support hosting the 
inaugural meeting on February 27, 2013. The SAP-C is a standing body 
chaired by a Vice Admiral and comprised of subject matter specialists 
designed to oversee the implementation of the Task Force 
recommendations; consider & discuss SAPR policy generally; direct 
empirical studies and trends (root cause analyses) based on accurate 
and reliable data; and order immediate and actionable course 
corrections to Coast Guard SAPR policy as needed. Since this initial 
meeting, the SAP-C has formed three working groups, assigning the 
implementation of the Task Force's recommendations to each on an 
aggressive schedule.
    Other recommendations from the Task Force include providing Victim 
Advocates to improve access to our widely dispersed population, 
improving annual SAPR mandated training and leadership course training 
segments, implementing various bystander strategies, and continuing 
SAPR messaging year-round. Some of these recommendations are already in 
the implementation stage, such as the bystander intervention initiative 
titled the ``Sexual Assault Prevention Workshop''.
    In April 2012, the Coast Guard issued a new and comprehensive SAPR 
policy that clearly defines roles and responsibility, mandates 
significant education and training, defines reporting processes and 
response procedures, and ensures greater victim safety. The policy also 
clarifies that commands must immediately notify not only CGIS, but also 
work-life and victim advocacy specialists, as well as the servicing 
legal office, upon receipt of an unrestricted report of sexual assault. 
This helps ensure that a comprehensive inter-disciplinary approach 
toward managing the victim's safety and support is in place, and that 
the investigation begins immediately.
    Also noteworthy within the last year was the creation and roll-out 
of the Coast Guard's bystander intervention training program known as 
the ``Sexual Assault Prevention Workshop''. The workshop is presented 
live by CGIS special agents, Judge Advocates and Coast Guard Work-Life 
specialists, who, in addition to providing the necessary information 
about the SAPR program in plenary session, then engage in gender 
specific break-out sessions to have a frank dialogue about sexual 
assault and SAPR. Since its inception in 2012, the workshop has 
provided training to forty-eight units and approximately 7,500 
personnel. This training initiative received the Department of Homeland 
Security Office of General Counsel Award for Excellence in Training on 
January 11, 2013, and many Coast Guardsmen have reported that this 
training is the most meaningful and effective training they have ever 
received.
    In addition to Sexual Assault Prevention Workshops, SAPR training 
sessions are being incorporated into all command & leadership courses 
in the Coast Guard, and we have significantly expanded the number of 
trained Victim Advocates across the Coast Guard, resulting in 
approximately 800 new Victim Advocates in the last few years.
    In April 2013, in observance of Sexual Assault Awareness Month 
(SAAM), I directed all Commanders, Commanding Officers, Officers-in-
Charge, Deputy and assistant Commandants, and Chiefs of Headquarters 
staff elements to conduct a unit all-hands SAAM discussion. A 
standardized training toolkit was developed and featured videos from 
the Master Chief Petty Officer of the Coast Guard and me offering 
personal messages on the imperative to focus efforts on preventing 
sexual assault. Additionally, the toolkit provided a training film and 
a script to facilitate open, frank, and productive unit-level 
discussion about sexual assault prevention and response.
    In May 2013, a SAPR Military Campaign Office was created under the 
Deputy Commandant for Mission Support to orchestrate execution of the 
SAPR Strategic Plan and to manage strategic communications. A Captain 
(O-6) has been assigned as the full-time lead and a support staff has 
also been assigned, including a Commander (O-5) as a Coast Guard 
Liaison to DOD's Sexual Assault Prevention and Response Office. This 
will optimize alignment between DOD and the Coast Guard with Strategic 
Plan implementation.
    Most recently, I issued my Commander's Intent launching a service 
wide ``Campaign to Eliminate Sexual Assault from Our Coast Guard'' on 
May 26, 2013. In this mandate, I make clear to everyone in the Coast 
Guard, including Active, Reserve, civilian, and auxiliary, my 
expectation to create a culture intolerant of sexual assault. This 
includes stopping sexual assault by recognizing indicators of predicate 
behavior and ensuring all personnel know they are empowered to 
intervene. We will also improve the availability and quality of 
response resources; improve reporting, investigative, and military 
justice processes; and enhance victim aftercare.
    In addition to specific SAPR programs and policy, the Coast Guard 
has worked to continually improve the administration of military 
justice and build our special victims' advocacy capability. In 
coordination with the Joint Service Committee on Military Justice, we 
are examining methods to incorporate the rights afforded to victims 
through the Crime Victims' Rights Act into military justice practice. 
We are also developing a Special Victim Counsel program to ensure that 
victims of sexual assault are provided the advice and assistance they 
need to understand their rights and feel empowered in the military 
justice system.
       reporting options and processing of sexual assault crimes
    Turning to the military justice system, I would like to discuss the 
process of how an allegation of sexual assault is reported, 
investigated, preferred (charged), and tried within the Coast Guard.
    A victim of sexual assault in the Coast Guard can elect to make a 
restricted or unrestricted report. Once any urgent medical treatment 
for the victim is provided, the Sexual Assault Response Coordinator 
(SARC), Victim Advocate, Health Care Provider, or Family Advocacy 
Specialist will advise the victim of the two reporting options, 
explaining the benefits and limitations of each, and document the 
reporting option the victim selects.
    Ultimately, the decision to make a restricted or unrestricted 
report is the victim's choice. The victim's decision on which report to 
make affects the processing of the case.
    Under the restricted reporting option, the victim notifies only 
certain authorized individuals, including a Victim Advocate, Family 
Advocacy Specialist, or Health Care Provider, about the incident. The 
report is ``restricted'' because the allegation is not to be reported 
to the chain of command and the victim's identity and all information 
about the allegation is protected. The victim receives advocacy, 
medical treatment, and counseling but a formal investigation is not 
triggered. The authorized individual who receives the restricted report 
will notify the appropriate Sexual Assault Response Coordinator.
    SARCs are strategically located in each Coast Guard District and 
the Coast Guard Academy. The SARC will assign a victim advocate if 
requested by the victim, and will track the case. Any evidence 
collected by the victim or victim advocate is sent to CGIS, but it is 
not processed and no attempt is made by CGIS to identify the victim. If 
forensic evidence is collected as part of a restricted report, current 
policy requires that it be retained for at least 1 year. If the victim 
chooses at any time to make an unrestricted report, CGIS will then 
process the evidence and begin an investigation. The chain of command 
is not notified of the restricted report, and will not be notified 
unless the victim ultimately decides to make an unrestricted report.
    Chaplains are also permitted to receive restricted reports. 
However, unlike other personnel authorized to receive a restricted 
report, a Chaplain is not obligated to notify the SARC or track the 
reports made. The chaplain may facilitate contact between the victim 
and any necessary advocacy services.
    Under the unrestricted reporting option, the victim makes an 
unrestricted report when he or she notifies his or her command, CGIS, 
or any servicemember who is not authorized to receive restricted 
reports about the incident. The victim may notify his or her supervisor 
or commanding officer; however, the victim does not have to notify his 
or her chain of command directly. The victim may notify a SARC, Victim 
Advocate, CGIS, Chaplain, local law enforcement, or an attorney in the 
legal office. These entities will then notify the victim's unit 
commander, the alleged offender's unit commander, or another 
appropriate authority in the chains of command. The SARCs and the 
Victim Advocates receive training on what to do with an unrestricted 
report if the victim identifies the unit commander as the alleged 
perpetrator.
    After the unit commander has received a report, he or she will 
notify CGIS and the SARC, if they have not already been informed. Upon 
notification of an alleged sexual assault, CGIS prepares a notice of 
case initiation (NOCI) report, detailing the allegations made, location 
of the incident, status and identification of the victim and 
perpetrator, units assigned, and known or potential witnesses. This 
NOCI report is transmitted to CGIS Headquarters, where a case dossier 
is created for investigative tracking, data collection, and for use in 
notifying senior Coast Guard leaders. It serves as notice within CGIS 
that an alleged sexual offense has been committed and that a formal 
criminal investigation has been initiated. Only personnel within CGIS 
have access to the information contained in the NOCI report. CGIS will 
notify the appropriate command cadre of both the victim and the 
perpetrator upon initiation of an investigation to ensure that no 
action is taken by the command without CGIS visibility and concurrence.
    Only CGIS is authorized to conduct a formal criminal investigation. 
Command cadre and other parties are prohibited from conducting any 
investigative activity into allegations of sexual assault. There are no 
longer any command-level investigations into allegations of sexual 
offenses. CGIS will notify the servicing legal office that an 
investigation into a sexual offense has been initiated. CGIS and the 
legal office work closely to ensure the various elements of the offense 
under investigation are thoroughly addressed and that all victim and 
witness rights are preserved. CGIS investigative efforts include, to 
the extent possible within the application of the military justice 
system and the rules of evidence, an interview of the victim, alleged 
offender, and all necessary witnesses; collection of physical and 
documentary evidence; collection of testimonial evidence; and forensic 
analysis of the evidence collected. The command does not have an active 
role in the investigation, except to make witnesses available for 
interview by CGIS agents and to provide any additional support 
requested by CGIS.
    Although the command does not play an active role in the 
investigation, it does play a critical role in providing care to the 
victim. The victim's unit commander is responsible for, among other 
things, ensuring the physical safety of the victim, advising the victim 
of his or her options for medical assistance, ensuring the victim 
understands the availability and benefits of victim advocacy, 
determining whether the victim needs to request a military protective 
order, and facilitating the need for temporary or permanent 
reassignment to another unit, duty location, or living quarters. A full 
list of the unit commander's obligations is located in the Sexual 
Assault Prevention and Response Program Instruction (COMDTINST 
M1754.10D).
    The alleged offender's unit commander also has obligations during 
the investigation. He or she must ensure that CGIS has been notified, 
limit the dissemination of pertinent information to only those 
personnel with a need to know, ensure procedures are in place to inform 
the alleged offender about the investigative and legal processes, 
provide for counseling for the alleged offender, and monitor the 
general well-being of the alleged offender, especially for any 
indications of suicide ideation.
    Unit commanders also have an obligation to emphasize that the 
alleged offender is presumed innocent until proven guilty, advise those 
with knowledge to fully cooperate with the investigation, and determine 
whether additional counseling or training is required for the unit.
    After CGIS has pursued all logical leads, the agents prepare a 
final report detailing the investigative effort and results. CGIS does 
not ``substantiate'' or ``unsubstantiate'' the allegations. Instead, 
CGIS mandate is to develop investigatory facts. A copy of the report is 
provided to the command responsible for determining any adjudicative 
action and to the servicing legal office. In accordance with my 
service-wide order issued in June 2012, only those officers who have 
special court-martial convening authority, have achieved the grade of 
at least O-6 (Captain), and have a dedicated staff judge advocate 
assigned may dispose of allegations of sexual misconduct, which 
includes any allegation of rape, sexual assault, aggravated sexual 
contact, abusive sexual contact, forcible sodomy, and attempts to 
commit such offenses. Because of the current organizational structure 
of the Coast Guard, in most cases the initial disposition decision is 
made by a flag officer. Only these commanders may make the decision to 
refer the case to court-martial, to impose non-judicial punishment, to 
take adverse administrative action, or to take no further action in the 
case. The commander must consult with the assigned staff judge advocate 
before making any decision in the case, including the decision to take 
no action. If no action is taken, the commander must document that 
decision in writing after consultation with his or her staff judge 
advocate.
    If charges are preferred, the case data is entered into the Coast 
Guard Law Manager system, where it can be tracked by the local legal 
servicing office and the Office of the Judge Advocate General. Trial 
Counsel (prosecutor) and Defense Counsel are then assigned. Only 
experienced trial attorneys are assigned as lead counsel in sexual 
assault cases.
    Under this process, a victim of sexual assault has options. They 
can make a restricted or an unrestricted report. They can decide to 
whom they want to report. Most significantly, the victim has options 
other than reporting a sexual assault directly to the command. However, 
once reported, a commander has a critical role not only in the safety 
and in well-being of the victim, but also a central role in the 
administration of justice.
         military justice process and legislative improvements
    The administration of justice within the military has been 
subjected to increased scrutiny in the last few years, in particular 
the role of the commander. That criticism is not entirely unjustified, 
and the military has not ignored those critiques. As an institution, 
the Armed Forces have continuously strived to improve its system of 
justice. History has shown that the modern military justice system has 
evolved in efforts to make constructive changes. From the enactment of 
the Uniform Code of Military Justice in 1950, to the Military Justice 
Acts of 1968 and 1983, to the implementation of rules of procedure and 
evidence, the military justice system has not remained a static legal 
regime. Moreover, the Services themselves have helped shape changes to 
the UCMJ and Manual for Courts-Martial through the Joint Service 
Committee on Military Justice. The Coast Guard has embraced those 
changes.
    The modern military justice system apparatus--with specific rules 
of procedure, evidentiary court rules, professionalized practitioners, 
and independent judicial bodies--has more in common with the Federal 
civilian courts than differences. The U.S. military justice system 
today is arguably one of the best, most fair, and just systems in the 
world. However, the argument for the status quo should not be because 
it is the status quo. While the system works well, it is not perfect. 
There should be, and there is, a never-ending quest to improve it. Our 
current system of military justice is worthy of robust examination and 
debate. It is important that serious thought go into what in the UCMJ 
should be changed and how that change should be accomplished. As 
Service Chief, I am committed to changing our organizational culture. I 
am concerned that dramatically changing our system of justice at the 
same time could impede those cultural changes.
    With that said, a core tenet of the military justice system is the 
central role commanders play in the administration of military justice. 
Military justice, unlike the civilian criminal system, has a dual role 
of seeking justice and enforcing discipline. This reflects the notion 
that commanders are in charge of their units, not lawyers or other 
officials. Any changes to the military justice system should not 
needlessly undermine commanders' ability to maintain good order and 
discipline. While the Coast Guard shares the goal of improving the 
system of justice within the military, it generally opposes legislation 
that would fundamentally alter the role of commanders in a piece-meal 
fashion without a full appreciation for the second- and third-order 
effects on the unit discipline and command authority.
    With these two aims in mind, the National Defense Authorization Act 
of 2013 creates two independent panels--the Response System Panel and 
the Judicial Proceedings Panel--that will provide an empirical, data-
driven study to assess criminal justice systems used to investigate, 
prosecute, and adjudicate crimes involving adult sexual assault and 
related offenses. Congress legislated a clear mandate that these panels 
assess ``legislative initiatives to modify the current role of 
commanders in the administration of military justice and the 
investigation, prosecution, and adjudication of adult sexual assault 
crimes.'' This deliberate and thoughtful study is an appropriate method 
to consider possible changes to the UCMJ.
                                closing
    Since 1790, the Coast Guard has been standing the watch and 
protecting America's national interests against all manner of maritime 
threats. The success of our operations has always depended on both 
Prevention and Response. However, our first priority is always to 
prevent an incident from occurring. Whether it's a vessel casualty, a 
pollution incident, disruption of traffic into our ports, or the flow 
of illegal drugs and migrants, we have always believed it is better to 
prevent an incident from occurring than respond to it afterwards.
    However, should an incident occur, no one is better at responding 
than Coast Guard men and women. We rescue those in distress, enforce 
the laws, and fight for our Nation and our people. It is what we do.
    The same must be true of our efforts to eliminate sexual assault 
from our Service.
    As the President has said, there is ``no silver bullet'' to solving 
the blight of sexual assault within our ranks. But we will continue our 
efforts until every victim feels confident in the ability to report 
sexual assault; every servicemember feels a duty to intervene and 
protect; every leader is focused on a command climate intolerant of 
sexual assault; and every crime is vigorously investigated and 
prosecuted, and justice is done. We will continue until sexual 
predators are driven from our Service.
    Our goal is simple--to eliminate the crime of sexual assault from 
our Service and ensure that no Coast Guard man or woman ever needs to 
fear the crime of sexual assault from a shipmate.

    Chairman Levin. Thank you very much, Admiral.
    We are going to have a 6-minute round of questions.
    Under the current law, both the initial disposition 
authority for a case--that is the official who decides whether 
to proceed to court-martial or to seek lesser punishment--and 
the convening authority--that is the official who appoints the 
military judge and other members for a trial by court-martial--
both are part of a chain of command.
    That means that the chain of command has ultimate 
responsibility for addressing misconduct in the ranks, 
including steps to address command climate that contributes to 
misconduct, steps to protect the victims of misconduct, and to 
ensure appropriate punishment for the perpetrators.
    Let me start, General Dempsey, with you. If the UCMJ were 
amended to reduce the commander's discipline authority by 
taking away his or her power to refer a case for trial by 
court-martial or by taking away the power to impose nonjudicial 
punishment, what impact would that have on a commander's 
authority and control over those who are under his or her 
command?
    General Dempsey. Well, in general terms, Mr. Chairman, as 
one of the chiefs said, we hold the commander responsible for 
everything the unit does or fails to do on or off duty, and 
whether in CONUS or deployed in an expeditionary contingency 
plan. That kind of responsibility is best served by authority 
that aligns with it.
    So, if you have heard each of us suggest that the role of 
the commander is central in solving this problem, it is because 
we believe that the role of the commander is essential to any 
change, any positive change we will be able to make on this 
issue.
    Chairman Levin. General Odierno, is there a relationship 
between the commander's authority to take action against a 
member of the Armed Forces and the commander's power to address 
problems of climate and culture, whether on the issue of sexual 
assault or with regard to other serious offenses, such as 
barracks larceny, for instance?
    General Odierno. A commander sets the tone for all that 
goes on inside of a unit, and he must have the ability to 
quickly, visibly, and locally administer justice so soldiers 
understand that the commander will ensure that the climate that 
they operate in is important. It is also important that we have 
these capabilities as you are deployed, that we can export this 
capability.
    As somebody mentioned, I think you mentioned, 800 courts-
martial were conducted in Iraq and Afghanistan by the Army, and 
several other cases of nonjudicial punishment. In some cases, 
this impacted not only our forces discipline, but the Iraqis or 
Afghans that were involved in the incidents that they saw, that 
we were able to do it right there, bring them as witnesses and 
prosecute the soldiers, which helped them to understand that we 
were holding people accountable as well. That is an example of 
the kind of thing that our commanders are willing and have to 
do.
    One other vignette I would just give you is there are cases 
in the Army, say, you have a soldier in a barracks who has--
sometimes we have soldiers who decide they give up. So they 
refuse to report to formation. They conduct barracks larcenies. 
They start doing significant amount of drugs in the barracks. 
It is incumbent on the commanders and the chain of command to 
ensure they do not tolerate this.
    If we had to give that to an independent authority in order 
to solve that problem, in my mind, that takes away the power of 
the commander to set a standard that would say I am responsible 
for the health and welfare of this unit. I am responsible for 
the discipline of this unit, and I will take charge of this 
discipline whether it is here, overseas, or anywhere to ensure 
that we can operate in a cohesive way. Unit cohesion is the key 
term.
    Chairman Levin. It has been frequently said in many op-eds 
and editorials that the only option now available to a victim 
of sexual assault is to report to his or her chain of command. 
In other words, the only option is to report to the commander 
of his or her unit, to your boss. It is pointed out how absurd 
it would be to require somebody to report to his or her boss 
if, in fact, that person has no confidence in his or her boss, 
if that is the case.
    Now, General Odierno, you have said, and I believe a number 
of you have said that there are many, many options that a 
victim of sexual assault has for reporting an offense, and you 
enumerated them. Reporting to a sexual assault coordinator, 
sexual assault victim advocate, healthcare professional, 
military police, local police, appropriate criminal 
investigative command, DOD Inspector General, DOD hotline, 
Judge Advocate General (JAG), or anyone in the chain of 
command, including that person's own commander, should he or 
she make that decision.
    I believe, Admiral, you indicated that every person in your 
Service has been informed of those opportunities, those options 
to report an assault, that they are not limited to report to 
their own commander. General, is that true in the Army, and 
more importantly, do the men and women in the Army, are they 
informed of all these various options to report an assault or 
other sexual offense or any other offense?
    General Odierno. Several years ago, we began training this, 
starting in basic training. So within the first 2 weeks that 
you become a member of the Army in basic training, you are 
given the basic information about who you can report to for, 
specifically, sexual assault offenses. It begins from the time 
you come into the Army to the time you progress through the 
Army.
    I would say one caveat to that, which I think is that they 
all--when they understand they can report, the next step for us 
is to ensure when they do report, even if it is outside the 
chain of command, that they are not retaliated against by the 
chain of command. So, that is the second step to this process.
    There are many ways for them to report. They are trained to 
do it, and then it is up to us to make sure that within the 
chain of command there is no retaliation or consequences, no 
matter how you report. We are working on that very carefully as 
well.
    Chairman Levin. I just want to ask all of the other 
Services here, are the men and women in your Service notified 
that they have the option to report a sexual offense against 
them in numerous ways? They are not just--they are not required 
at all to report to their commander?
    Starting with you, General, let me ask all of you. Any of 
you disagree with that? Because we have to have that real 
clear. There has been a big misunderstanding about this 
question of having to report to your commander.
    In any of your Services, must a victim report an offense to 
their commander, or are these other options available? So just 
give me yes or no. Yes, the other options are available in each 
of your Services, and men and women are so informed.
    Admiral, you have already answered the question. General?
    General Welsh. Mr. Chairman, the options are available, and 
they are informed.
    Chairman Levin. They are informed. General, I assume that 
is the policy for all the Services. General, you have already 
answered, General Odierno. General Amos?
    General Amos. Mr. Chairman, it is exactly the same, and I 
would add one more thing that we all have is the thing called a 
uniformed victim advocate. Those are actual young men and women 
that are probably their same rank that are in these units whose 
pictures are up on the bulkheads. So it is a lot easier to go 
to a contemporary. They are trained 40 hours of training.
    So the answer is yes.
    Chairman Levin. Admiral?
    Admiral Papp. The same within the Coast Guard, sir.
    Chairman Levin. Thanks very much.
    Senator Inhofe.
    Senator Inhofe. Thank you, Mr. Chairman.
    I think it is very appropriate that the Defense Legal 
Policy Board report on military justice in combat zones came 
out just last week. I quoted in my opening statement a rather 
long part of that. The two-sentence synopsis would be, ``The 
military justice system is a definitive commanders' tool to 
preserve good order and discipline, and nowhere is this more 
important than in a combat zone. A breakdown of good order and 
discipline while deployed can have devastating results on 
mission effectiveness.''
    Does anyone disagree with that statement? [No response.]
    All right. If you agree with that statement, General 
Odierno, why don't you give us just an example of how stripping 
this authority from the commanders affects his or her ability 
for maintaining good order and discipline or mission 
effectiveness, and why?
    General Odierno. Well, first off, again, as I said earlier, 
it is about quickly, visibly, and locally taking action that 
very quickly makes sure that the unit and other soldiers 
involved understand that this will not be tolerated. It also 
ensures them that action will be taken immediately.
    If we can't do it forward in theater, then it would delay 
action. Potentially, we would have a problem with witnesses, 
and so it would cause us not to have something done quickly, 
very visibly, and locally. So, in my opinion, it is about, 
again, continuing to have unit cohesion in a forward operating 
capability that allows our soldiers to continue to perform 
their mission under very difficult conditions.
    Senator Inhofe. That is very good. In reading the Defense 
Legal Policy Board's report, it quotes most of you on this 
panel. Secretary McHugh stated in this report, ``The Services 
are consistent in their position that initial and final 
disposition authority should reside in the commanders, as is 
currently the case.''
    He is not here today, but General Harding, you are. You are 
quoted in here as saying, ``Creating artificial distinctions 
between offenses should not supplant a commander's case-by-case 
evaluation of an alleged offense.''
    Is that an accurate statement today?
    General Harding. Yes, sir. It is.
    Senator Inhofe. Tell me why.
    General Harding. I believe that after 34 years of practice 
of law in the military that what I have observed is that 
commanders are enhanced, their ability to exercise command and 
control, their ability to discipline their forces is enhanced 
by holding every member of their command appropriately 
accountable.
    Senator Inhofe. Very good.
    General Ary, in January 2012, you stated, ``In a combat 
environment, noncompliance with rules and undisciplined 
operations cost lives and negatively impacts the mission.''
    Do you still believe that the commander must maintain the 
central and permanent role, as you did a year and a half ago?
    General Ary. Yes, sir. I do. In fact, I would say whether 
it is an enemy on a battlefield or sexual assault in the 
barracks, good order and discipline is just as important.
    Senator Inhofe. General Amos, do you agree with that?
    General Amos. Yes, Senator. Absolutely.
    Senator Inhofe. He has said that an undisciplined operation 
costs lives. Could either one of you give us an example of how 
that could cost lives?
    General Amos. Senator, we have had a couple of occasions 
several years ago in Afghanistan where we had one or two 
marines that were not paying attention to business, falling 
asleep on duty, falling asleep on watch. As a result of this, 
the battalion commander and the company commander had to do 
something about it.
    Marines' lives were at risk. There was a nonjudicial 
punishment in those cases and in one case court-martial that 
ended up as a result of this. So the behavior forward deployed 
in combat absolutely is critical and could cost lives.
    Senator Inhofe. Thank you, General Amos.
    Yesterday, I talked about the 10 provisions that were in 
the NDAA for Fiscal Year 2013 that were the programs on sexual 
assaults. Can anyone here give me a status as to what has been 
done on those 10 recommendations that were in the NDAA for 
Fiscal Year 2013? [Pause.]
    General Ary. Well, sir, it is a long list. But I think one 
of the big game-changers here is going to be the hiring of 
those certified, credentialed victim advocates. I think we all 
recognize that our victims need an advocate that is effective, 
and we think that those will be a supporting effort for the 
uniformed victim advocates.
    Also the SARCs. Getting them online is going to be big, and 
we are in the process of hiring them right now.
    Senator Inhofe. Okay. What I am trying to get at here is 
those are 10 specific things, and I assume you are all aware of 
those and are working on it. I see nods to the affirmative.
    Lastly, General Welsh, the Air Force currently has a pilot 
program for a special victims' counsel. What is the current 
status of that?
    General Welsh. Sir, the program began in January. It was 
planned to run for 1 year, but we plan to give a report to the 
Secretary of Defense no later than November 1 of this year. We 
have so far had 318 victims apply for support through the 
special victims' counsel.
    We currently have 60 special victims' counsel who are fully 
trained to do this work. They are today supporting 282 victims 
in various ways, including many all the way through court-
martial and final adjudication of their cases.
    Feedback from the victims has been very, very positive. We 
believe the program is working very well for us. We are excited 
about where it is going.
    Senator Inhofe. General Welsh, this is an Air Force pilot 
program. Would you recommend this for the other Services?
    General Welsh. Sir, the results we are seeing are very 
positive. I am going to recommend to my Secretary that we 
continue the program.
    Senator Inhofe. Very good, sir.
    General Welsh. There are resource issues associated with 
it, each Service will have to look at separately, but it has 
been a very, very good program.
    Senator Inhofe. Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Inhofe.
    Senator Reed.
    Senator Reed. Thank you, Mr. Chairman.
    This issue goes to the heart of our military forces, our 
national security. All the talent and the billions of dollars 
of technology won't make a difference if soldiers--and I will 
use the term generically--don't trust their fellow soldiers, 
and certainly if they don't trust their commanders. The essence 
of the military is that soldiers protect, not exploit, their 
comrades, and commanders particularly protect and not exploit 
their commanders.
    Having said that, General Odierno, to your knowledge, has 
the Army relieved a commander who has tolerated an 
inappropriate environment with respect to sexual abuse?
    General Odierno. Senator, in the last 4 years, we have 
relieved 57 commanders, 14 brigade and 43 battalion commanders, 
and about half of those for command climate. About half of 
those cases were specifically related to their ability to 
execute sexual assault and other issues associated with command 
climate and toxic leadership.
    Senator Reed. Is this an explicit criteria or criterion, 
rather, for promotion board consideration for particularly 
senior ranks?
    General Odierno. I would say toxic climates as a whole, 
which include sexual harassment, are absolutely assessed and a 
requirement for any type of promotion or job of senior--for any 
senior members. If you ask me specifically is sexual harassment 
on there, on our efficiency reports, we don't specifically 
mention sexual harassment, but we talk about command climate, 
which sexual harassment is a subset of.
    Senator Reed. It may be well to consider making that much 
more explicit not only in terms of relief, but in terms of 
evaluation and in terms of promotion because if you want the 
chain of command to be--have the authority that it has today, 
then it has to be extraordinarily responsible to this specific 
issue and not to general climate issues. That is my opinion, 
for what it is worth.
    Admiral Greenert, can you answer the same question?
    Admiral Greenert. Yes, sir. The command climate is an 
explicit part of an officer's fitness report. Command climate 
of a unit by a unit commander is evaluated by the immediate 
senior in command, and that is reported to our type commander.
    So by virtue of those reports and the synopsis in the 
report of fitness at a promotion board, the command climate is 
evaluated by the promotion board. It is an explicit part of an 
officer's evaluation.
    Senator Reed. With respect to relief, have you relieved a 
commander because of the--specifically, not generically, 
because of bad climate? Specifically because of the failure to 
respond to sexual abuse in his command or her command?
    Admiral Greenert. Not explicitly due to sexual abuse within 
a command. However, those--a few who have been removed due to 
poor command climate, when, unfortunately, after the fact, what 
we are seeing now, we have found that it is an attribute.
    Senator Reed. General Welsh?
    General Welsh. Senator, during my tenure, we have not 
removed a commander explicitly for climate of sexual assault or 
sexual harassment. We have removed commanders for command 
climate, but I don't know of one specific to that in the past.
    They are clearly held accountable as far as command 
performance reports based on their ability to lead and 
influence their people. This is a major part of that. Maybe 
equally as important I think are commanders in the field, and 
for us at the wing commander level especially, need to fully 
understand how the Air Force and I feel about this topic and 
about how it will affect their future opportunities.
    I called all of them to DC last--at the end of last year, 
late November, early November, and made it real clear to them. 
I haven't talked to Colonel Jeannie M. Leavitt--a witness on 
panel II--about this, but in the second panel today is one of 
my wing commanders. I believe she can tell you what I expect 
from her in this regard, and I think that is important. We have 
all done that.
    Senator Reed. General Amos?
    General Amos. Senator, to the best of my knowledge, since I 
have been the Commandant for 2\1/2\ years, I don't believe we 
have relieved anybody from command for having a climate of 
sexual assault or sexual harassment.
    That said, there is an expectation for each of our 
commanding officers to set the conditions, the climate, in his 
or her organization that not only does all the combat stuff--
equipment, the training, and the personnel readiness--but also 
sets the environment such that young marines who are in that 
unit are comfortable. They are confident in their leadership.
    Last month, I signed a policy letter out to every single 
commanding officer. We have already briefed it. It is 
instituted now. Every commanding officer will take--the whole 
unit will take a command climate survey. We just finished it, 
34 questions. At least five of those deal with sexual assault, 
sexual harassment, confidence in the leadership to be able to 
protect and take care of the interests of the young marine.
    That command climate survey will be done at the beginning 
of every single commander's term within the first 30 days and 
annually at that point. Those results will go to the next 
higher command.
    So a commander is responsible for everything else, clearly 
responsible for command climate, Senator. My expectations are 
we will probably see more of this in the future.
    Senator Reed. Admiral Papp, my remaining time, please?
    Admiral Papp. Thank you, sir.
    We average probably about a dozen reliefs for cause each 
year, primarily due to command climate issues. We fill the 
spectrum. We have officers in charge starting at the chief 
petty officer, or E-7 level, E-8 and E-9, all the way up 
through many junior officers commands as well. So primarily due 
to command climate issues as they are discovered.
    We have had one relief of an O-4 2 years ago, was relieved 
of command for failure to report a sexual assault. The victim 
went outside the chain of command and made the report. It came 
back in the chain of command above this particular commander, 
and he was relieved for failure to report.
    Senator Reed. Thank you.
    Chairman Levin. Thank you very much, Senator Reed.
    Senator McCain.
    Senator McCain. Thank you, Mr. Chairman.
    Obviously, we are here today to determine how DOD can most 
effectively reduce instances of sexual assault and ensure that 
offenders are held accountable. Our witnesses have 
characterized the problem as a crisis and a cancer that 
threatens the very fabric of our military, and I couldn't agree 
more.
    At its core, this is an issue of defending basic human 
rights, but it is also a long-term threat to the strength of 
our military. We have to ask ourselves if left uncorrected, 
what impact will this problem have on recruitment and retention 
of qualified men and women?
    Just last night, a woman came to me and said her daughter 
wanted to join the military, and could I give my unqualified 
support for her doing so? I could not.
    I cannot overstate my disgust and disappointment over the 
continued reports of sexual misconduct in our military. We have 
been talking about the issue for years, and talk is 
insufficient.
    I would remind my colleagues that after the Vietnam war, at 
the end of the Vietnam war and in the aftermath, there were 
breakdowns in discipline. There was race riots on aircraft 
carriers. There was instances of fragging. There was tremendous 
racial unrest and tensions within our military. We addressed 
the issue, and now I believe the military is our most effective 
equal opportunity employer.
    We must do that in the case of this crisis that we are 
facing now. Today, we all agree that action has to be taken, 
and I hope that today's hearing will build on that consensus.
    General Dempsey, as you stated in your prepared statement, 
you have endorsed Secretary Hagel's proposed amendments to 
Article 60. I am sure that members of the panel are familiar 
with it. They would prohibit a convening authority from setting 
aside the findings of a court-martial, except for a narrow 
group of qualified offenses, and require a convening authority 
to explain any sentence reduction in writing.
    Is there anyone on the panel that disagrees with Secretary 
Hagel's recommendation? [No response.]
    Thank you. General Dempsey, do the Services allow 
individuals with a history of sex-related crimes to enlist or 
receive a commission to serve?
    General Dempsey. There are currently, in my judgment, 
Senator, inadequate protections for precluding that from 
happening. So a sex offender could, in fact, find their way 
into the Armed Forces of the United States. In fact, there are 
cases where a conviction wouldn't automatically result in a 
discharge.
    Senator McCain. Obviously, we have to fix that. You would 
agree?
    General Dempsey. Absolutely.
    Senator McCain. General Odierno, in your prepared 
testimony, you expressed your support for this proposal but 
stated you need to ``consider several technical amendments to 
ensure the UCMJ functions properly in practice.'' Would you 
submit for the record those technical changes that you would 
like to see?
    [The information referred to follows:]

    General Odierno and Lieutenant General Chipman. As detailed in my 
written statement, I support a number of legislative proposals that 
contemplate changes to the role of the commander and to the Uniform 
Code of Military Justice, including a Commander Response Certification 
or system of checks and balances, Article 60 limitations, new 
enumerated offenses for trainer-trainee sexual abuse, general court 
martial referrals for the most serious sexual offenses, bars to service 
and mandatory separation for those convicted of these crimes, expanded 
legal assistance training for attorneys assisting victims throughout 
the process, and the Response System Panel and Judicial Proceedings 
Panel for a comprehensive review and comparison of our system to 
determine what changes should be made to law and policy. The Army will 
continue to provide technical assistance on proposed legislation as 
requested.
    General Amos and Major General Ary. In his written submission, 
General Odierno stated, ``I support proposals which would require that 
all penetrative sexual offenses (for rape, sexual assault, forcible 
sodomy and attempts to commit those crimes) be referred to a General 
Court Martial only, rather than a Special Court Martial or a Summary 
Court Martial, due to the severity of these crimes. To implement this 
proposal, however, we will need to consider several technical 
amendments to ensure the Uniform Code of Military Justice (UCMJ) 
functions properly in practice.''
    I believe the convening authority's pretrial discretion in 
determining how to dispose of certain sexual assault offenses should 
not be limited. [do not support legislation that would limit the 
discretion of the convening authority to determine how to dispose of 
certain sexual assault offenses before trial. Rule for Courts-Martial 
306(b) states that ``[Allegations of offenses should be disposed of in 
a timely manner at the lowest appropriate level of disposition . . . '' 
In deciding how an offense should be disposed of, there are several 
factors the convening authority considers, including the views of the 
victim as to disposition. While I agree that a general court-martial is 
normally the appropriate forum to adjudicate sexual assault offenses, 
there are circumstances, such as victim preference, when a convening 
authority may find it appropriate to handle a sexual assault offense at 
a special court-martial. For example, in a case where it might be very 
difficult to prove a penetrative sexual offense, there might also be a 
contact-type sex offense to which the accused is willing to plead 
guilty. The victim may prefer to avoid a lengthy contested general 
court-martial in order to guarantee a conviction and the accused's 
qualification as a sex offender. If the law mandates that all sexual 
assault cases be referred to General Court-Martial alone, the ability 
for a commander to remain flexible upon victim preference would be 
impossible.
    I concur with General Odierno that changes to the UCMJ should not 
be made in a piecemeal fashion. Any proposed changes to the UCMJ should 
be referred to the Response Systems Panel for independent review and 
assessment. By taking a deliberate and thoughtful approach, we can 
ensure that unforeseen or unanticipated consequences do not adversely 
affect victims of sexual assault or compromise the Constitutional 
rights or those accused of crimes.

    Senator McCain. It is important for our committee to 
understand the extent to which commanders are following the 
advice of legal counsel in making disposition determinations. 
My understanding is that in an overwhelming number of cases in 
each Service, the commander is following the advice of legal 
counsel.
    Could the Service Chiefs or Judge Advocates tell us how 
many cases did a commanding officer go against the advice of a 
Staff Judge Advocate (SJA) in executing their convening 
authority? Do you know, General?
    General Amos. Senator, I don't--I am going to let General 
Ary talk if he has the numbers. But in 43 years, I can't think 
of a single instance where my Judge Advocate, in all the times 
I have been in command and a convening authority, I can't think 
of a single instance where my Judge Advocate came to me and 
said we want you--we recommend that you prosecute these cases, 
and I didn't do it.
    On the other hand, I can think of many where he said we 
don't have enough evidence, don't prosecute him, and I did 
anyway.
    Senator McCain. General?
    General Odierno. Something related to this is that I think 
sometimes people are led to believe that all of a sudden 
commanders are doing these cases with no experience. From the 
time you come in the Army or any Service as a commissioned 
officer, as a platoon leader, company commander, battalion 
commander----
    Senator McCain. I would appreciate--I apologize.
    General Odierno. Okay. So, yes. So, in every case, I agree 
totally with General Amos is that in every case in my own 
experience that when I was--said we have evidence to go, we 
did. Many times, when we didn't think we had enough, we went to 
a court-martial anyhow because of the importance of the case.
    Senator McCain. Admiral? I am sorry for the request for a 
short answer.
    Admiral Greenert. We scrubbed every case for the last year 
for sure, and there were no discontinuities. The advice was 
taken, legal advice was taken by the commander.
    Senator McCain. General?
    General Welsh. Senator, we reviewed every case, every trial 
for the last 3 years. There were 2,511 cases, and 22 of those, 
the initial disposition authority did not agree with the 
recommendation from the JAG. The recommendation was forwarded 
in 10 of those cases to a higher convening authority who agreed 
with the JAG's recommendation, and that was the action that was 
taken.
    In 12 of the 2,511 cases, the commander made a different 
decision than what his JAG recommended, so less than 1 percent 
of the time.
    Senator McCain. Admiral DeRenzi, you have had a long 
experience with these issues. Is the problem better, worse, or 
the same?
    Admiral DeRenzi. Sir, do you mean sexual assault issues in 
general?
    Senator McCain. Yes.
    Admiral DeRenzi. I think the problem is improving. I was a 
junior officer during Tailhook, and I can tell you that I do 
not recall the training efforts, the response, the prevention, 
the attention on our ability to prosecute offenders reaching 
down from leadership to the deckplate level at that time.
    I would tell you that in the time since and now, I see a 
difference. I see a difference in the leadership. I see a 
difference in how the Judge Advocates are trained to respond 
and support, and I see a tremendous difference in the 
prevention and response efforts.
    Senator McCain. But you would agree that improvements need 
to be made?
    Admiral DeRenzi. Yes, sir.
    Senator McCain. We would be very interested in your support 
or lack of support of some of the recommendations that we are 
considering.
    Admiral DeRenzi. Yes, sir. I would be happy to provide 
those for the record.
    [The information referred to follows:]

    The Navy is committed to ensuring the military justice system works 
fairly, guarantees due process, maintains good order and discipline, 
provides justice to victims of crimes, and is accountable. Given this 
commitment, we remain open to improvements in the military justice 
system that further these goals without giving rise to unintended 
second- and third-order effects. To be considered for change, proposals 
should be targeted to address specifically identified problems with the 
current military justice system.
    However, I do not support taking away a Commander's authority to 
convene courts-martial. Such authority underpins good order and 
discipline, which is central to mission accomplishment. Commanders are 
singularly responsible and accountable for mission accomplishment, as 
well as for the welfare, safety, and effectiveness of those they lead. 
Commanders must retain authority commensurate with their 
responsibility. A key component of that authority is the ability of 
Commanders, at an appropriate level, to take disciplinary action.
    Secretary of Defense policy already withholds initial disposition 
authority for rape, sexual assault, forcible sodomy and attempts to 
commit those offenses to Special Court-Martial Convening Authorities in 
the grade of O-6 and senior. This ensures that Convening Authorities 
addressing the most serious sexual assault cases are knowledgeable and 
experienced in the disposition of military justice cases. More 
fundamentally, these Convening Authorities are senior military officers 
who possess judgment cultivated throughout their careers by their 
experiences in leadership positions. Additionally, the Secretary of 
Defense policy ensures Convening Authorities have the support and 
obtain the advice of senior judge advocates.
    Through the Response Systems Panel created by section 576 of the 
National Defense Authorization Act for Fiscal Year 2013, Congress has 
created a means of objectively evaluating proposed changes to the 
Uniform Code of Military Justice (UCMJ) relating to sexual assault in 
the military. The Response Systems Panel should be given the 
opportunity to complete its independent assessment of the systems used 
to investigate, prosecute, and adjudicate sexual assaults prior to 
enacting sweeping and fundamental changes to the UCMJ. The following is 
provided subject to that caveat.
    I fully support the Secretary of Defense's proposal to amend 
Article 60 of the UCMJ to modify a Convening Authority's authority to 
change the findings and sentence of a court-martial. This proposal 
recognizes that our court-martial practice has changed since World War 
II through the participation of professional military prosecutors, 
defense counsel and judges in trials, as well as a robust review and 
appeals process.
    I believe there is merit in the provisions calling for enhanced 
protection of new members of the Armed Forces in initial entry-level 
processing and training environments from military members in a 
supervisory role in these same environments. Although the Navy has 
existing policies which prohibit inappropriate relationships and sexual 
contact and provide appropriate punishment for offenders, a uniform 
policy would promote consistency across the Services.
    I also concur with provisions requiring commanding officers to 
immediately notify the appropriate military criminal investigative 
organization after receiving a report of sexual assault. The Navy 
already requires such reporting but creating a statutory duty to report 
reinforces the existing policy guidance. Similarly, I support 
provisions requiring immediate notification of the chain of command of 
sexual assault allegations. Such measures reinforce existing practice 
and policy.
    I concur with eliminating the statute of limitations for sexual 
assault, sexual assault of a child and forcible sodomy. Although 
prosecution of such offenses becomes more difficult with the passage of 
time, the seriousness of the offenses warrants giving commanders the 
opportunity to hold offenders accountable without regard to the current 
statute of limitations.
    While the Navy's legal professionals already provide support to 
sexual assault victims, I can support extending the program to provide 
victims with the legal advice that judge advocates are uniquely 
qualified to provide, including legal consultation regarding victims' 
rights; the military justice process; potential criminal liability of 
the victim for collateral misconduct; potential civil litigation; and 
legal assistance in personal civil legal matters.
    I concur that individuals with civilian convictions for rape, 
sexual assault, forcible sodomy and incest should be prohibited from 
serving in the military. Similarly, if legislation is enacted requiring 
administrative separation of individuals convicted by court-martial of 
penetration offenses, or attempts to commit penetration offenses, but 
not punitively discharged, then conforming amendments to the statutory 
provisions pertaining to boards of inquiry would be required (see 10 
U.S.C. 1182).
    Navy commanders currently have the authority and ability to 
temporarily reassign members who are alleged to have committed sexual 
assaults pending the resolution of their case. Accordingly, a statutory 
change is unnecessary but not objectionable. As victims currently have 
the right to request an expedited transfer, commanders are able to 
weigh the equities in each individual case and transfer either the 
suspect or victim, as appropriate. This is in addition to the ability 
to issue no-contact military protective orders, place a suspect in 
pretrial confinement, or restrict liberties if the facts warrant such 
actions.

    Senator McCain. Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator McCain.
    Senator McCaskill.
    Senator McCaskill. Thank you, Mr. Chairman.
    I appreciate all of you being here. I have spent hours and 
hours with your prosecutors over the last several months. I 
have had long conversations with several of you at the table, 
including those who are heading up our various branches.
    I want to start with the fact that I think part of the 
problem here is you all have mushed together two issues in ways 
that are not helpful to successful prosecution. There are two 
problems. One is you have sexual predators who are committing 
crimes. Two, you have work to do on the issue of a respectful 
and healthy work environment.
    These are not the same issues. With all due respect, 
General Odierno, we can prosecute our way out of the first 
issue. We can prosecute our way out of the problem of sexual 
predators who are not committing crimes of lust.
    My years of experience in this area tell me they are 
committing crimes of domination and violence. This isn't about 
sex. This is about assaultive domination and violence. As long 
as those two get mushed together, you all are not going to be 
as successful as you need to be at getting after the most 
insidious part of this, which is the predators in your ranks 
that are sullying the great name of our American military.
    I want to start with--I think the way you all are reporting 
has this backwards because you are mushing them together in the 
reporting. Unwanted sexual contact is everything from somebody 
looking at you sideways when they shouldn't to someone pushing 
you up against the wall and brutally raping you.
    You have to, in your surveys, delineate the two problems 
because until you do, we will have no idea whether or not you 
are getting your hands around this. We need to know how many 
women and men are being raped and sexually assaulted on an 
annual basis, and we have no idea right now because all we know 
is we have had unwanted sexual contact, 26,000.
    Well, that doesn't tell us whether it is an unhealthy work 
environment or whether or not you have criminals. You have to 
change that reporting.
    Success is going to look like this. More reports of rape, 
sodomy, and assault, and less incidents of rape, sodomy, and 
assault. So everybody needs to be prepared here, if we do a 
good job, that number of 3,000 the chairman referenced, 3,000 
and something, that is going to go up if we are doing well.
    But overall, the incidents are going to be going down, but 
we have no way of being able to demonstrate that with the way 
you are reporting now. I hope that you all understand that.
    Now reporting is the key. Senator Gillibrand and I are in 
complete agreement that this is about creating a culture where 
victims are comfortable coming forward, and that is incredibly 
important. I think a number of steps are being proposed in all 
the different pieces of legislation, and a number of them you 
have agreed with, which is progress.
    I think we have to look at restricted reporting with an 
emphasis on getting the perpetrator ID'd. Right now, no one is 
really pressing to get the perpetrator ID'd in an unrestricted 
report. Why is that important? Because the victim who won't 
come forward today will come forward a year from now if there 
are two other victims who have come forward.
    But if we don't know who the perpetrator was, we can't even 
go back and talk to that victim. I think that is one thing that 
you all need to work on.
    Let me ask a question of you, General Amos. I am 
concerned--I agree with the part of Senator Gillibrand's 
legislation, and others, I think, have included this, too, in 
our legislation, that we should not be taking into account how 
good a military person is in deciding whether or not to try 
them on a felony. The facts of a felony are the facts of a 
felony.
    I don't care how good a pilot it is. I don't care how good 
of a special operator a person is. Their ability to perform as 
a soldier or an airman or a member of the Coast Guard is 
irrelevant to whether or not they committed a crime.
    Do any of you disagree with the proposal that we should be 
not considering how good a military character they have in 
terms of how well they serve the military as part of the 
consideration as to whether or not a case should be tried where 
a felony accusation has been made? Anybody disagree with that? 
[No response.] Nobody disagrees with that? Okay. That is good.
    General Harding. Ma'am, I will just comment that assessing 
the character, to the extent that you can through previous 
deeds, is an appropriate factor to enter into the equation. It 
doesn't enjoy overriding weight, but I think that is what the 
code had in mind. I think district attorneys also assess an 
individual's character in the community to determine whether or 
not the allegation is supported or not supported by that.
    But it is one of many characters in the totality of 
circumstances that you referred to that are taken into 
consideration in a decision whether or not to prosecute. But it 
is not, by any stretch of the imagination, an overriding factor 
or one that would result in a decision solely not to prosecute.
    Senator McCaskill. Well, the character of the perpetrator 
would come in the trial if the defendant wanted to bring it 
into the trial, and then there would be an opportunity to 
impeach. There is no opportunity to impeach on character at a 
disposition phase. I completely disagree with you, General 
Harding.
    There is not--it is not relevant as to whether or not 
somebody raped a woman how good a pilot he was.
    General Harding. I am not referring to their job 
performance, ma'am. I am referring to their character. As a 
district attorney, would you assess an individual's character 
before--in the totality of circumstances? Not at all.
    Senator McCaskill. If the defendant brings it in in a 
trial, then it is relevant that I have that opportunity to 
impeach at the trial and show that his character is not that 
great.
    General Harding. I think you and I agree.
    Senator McCaskill. Whereas, you don't have that at a 
disposition phase. You don't have that--I shouldn't say 
disposition phase because that is confusing to people out 
there. Because disposition technically in our world is the end 
of the trial. But for you, disposition is at the beginning.
    At the beginning of the trial process, deciding whether or 
not there is sufficient evidence to support the charges, the 
character of the defendant should be irrelevant.
    General Harding. To include a bad character, a character 
for criminal actions in the past.
    Senator McCaskill. The facts should speak to that. If he 
has been convicted and if there have been accusations that have 
been borne out, if he has had other actions against him, then 
that is a factual determination. That is not this illusive let 
us put together a big package and say what a great guy this is.
    General Harding. Well, that is not what the process is.
    Senator McCaskill. Okay. Well, we may not disagree or we 
may disagree. But we will ferret that out.
    I just, for the record, Mr. Chairman. I know my time is up. 
I need to know how many cases you all have taken that civilian 
prosecutors declined to prosecute. I also need to know how many 
cases you have taken after someone has been found not guilty in 
civilian courts.
    I don't think many people realize that you do that, and you 
do. In talking to the prosecutors, there are cases that you 
have taken action after someone is found not guilty in the 
civilian courts. I think that is important for our 
consideration as we work on the markup of the defense 
authorization bill.
    Thank you, Mr. Chairman.
    Chairman Levin. Let us ask each of the Service Chiefs here 
to get the statistics which have been requested along that line 
by Senator McCaskill.
    [The information referred to follows:]

    General Odierno and Lieutenant General Chipman. The Army 
does not track the total number of cases in which civilian 
authorities had concurrent jurisdiction, took the lead on 
investigation and declined to prosecute and Army commanders 
subsequently chose to proceed with judicial action. However, 
data collected from a sampling of our General Courts-Martial 
jurisdictions and Special Victim Prosecutor case trackers 
indicates that in every jurisdiction, Army commanders have 
preferred court-martial charges or pursued nonjudicial or 
adverse administrative actions after civilian authorities 
declined to prosecute Army offenders. The number of cases will 
vary by jurisdiction, depending on the resources or 
prosecutorial policies of the local authorities and upon the 
relationship between the local authorities and the Office of 
the Staff Judge Advocate. For example, for the Special Victim 
Prosecutor assigned to Fort Drum, NY, over a 30 month period, 9 
of the 25 sexual assault cases (36 percent) handled within the 
geographic area of responsibility were cases in which the 
civilian authorities investigated and declined to prosecute and 
Army commanders chose to prefer charges.
    The Army is also aware of 28 specific cases from various 
jurisdictions in which Army commanders pursued courts-martial 
after civilians declined to prosecute over the past 2 years. 
This is not an exhaustive list as the number of cases declined 
by civilian jurisdictions is not currently tracked by the Army.
    Finally, there are cases, justified by unique 
circumstances, in which Army commanders have prosecuted 
soldiers who were acquitted in civilian courts. MSG Timothy 
Hennis was prosecuted at Fort Bragg, NC, in 2010 for rape and 
capital murder after three unsuccessful attempts by North 
Carolina to convict. SGT Brendan Burke was prosecuted at Fort 
Campbell, KY, in 2012 for the murder of his wife and mother-in-
law after four civilian trials ended with hung juries.
    Admiral Greenert. Over the course of the last 2 fiscal 
years, Navy commanders prosecuted seven sexual assault cases 
declined by civilian prosecutors, resulting in two convictions 
for sexual assault and one for a non-sexual assault offense.
    Over that same period, the Navy successfully prosecuted one 
general court-martial in which there was an acquittal in the 
civilian court and one additional general court-martial in 
which the civilian court found the member guilty, but only of 
one count (involuntary manslaughter) of several charged. The 
civilian court sentenced the accused to 12 months confinement. 
The Navy subsequently tried the accused and secured a court-
martial conviction for voluntary manslaughter, aggravated 
assault, discharging a firearm, endangering human life and 
disorderly conduct. The accused received five years confinement 
and a bad conduct discharge.
    The cases above do not include current cases currently 
undergoing an Article 32 pre-trial investigation or cases tried 
overseas under another country's criminal jurisdiction.
    General Welsh. While the Air Force does not formally track 
this information, we routinely prosecute cases where the local 
authorities decline to prosecute, including sexual assault 
cases. The numbers below are the cases where this fact was 
noted in the case synopsis of the fiscal year 2011 and fiscal 
year 2012 Department of Defense Annual Report of Sexual Assault 
in the Military. This is not an exhaustive list because there 
may be cases where the local prosecutor waived or declined 
jurisdiction but that fact was not captured in reporting.
    In fiscal year 2012, we preferred charges in at least seven 
sexual assault cases where civilian prosecutors declined to 
prosecute. Five of those cases went to trial and four of those 
resulted in convictions.
    In fiscal year 2011, we preferred charges in at least eight 
sexual assault cases where civilian declined to prosecute. Five 
of those cases went to trial and five of those resulted in 
convictions.
    General Amos and Major General Ary. The Marine Corps has 
not historically tracked this specific statistic. In February 
2010, the Marine Corps implemented its Case Management System 
(CMS) in order to accurately track and meet the legal 
requirements for timely post-trial processing and review. CMS 
was not initially designed to capture trial level data about 
certain types of cases, but since its inception, CMS has been 
modified and utilized to track valuable information about 
certain types of cases, such as sexual assaults and hazing. To 
this point, pretrial civilian involvement in a court-martial 
has not been tracked as part of CMS. The Marine Corps is 
modifying CMS to collect this data in the future.
    Despite the immediate unavailability of the requested data, 
we are currently collecting responsive information from our 
offices in the field. We anticipate having our answer by June 
10, 2013.
    Admiral Papp. [Deleted.]

    Chairman Levin. Thank you, Senator McCaskill.
    Senator Chambliss.
    Senator Chambliss. Thanks, Mr. Chairman.
    First of all, let me say that I think each of you delivered 
a statement with emotion and passion, and you obviously 
recognize the seriousness of the issue. I take you at your word 
that we are going to get to the bottom of, number one, how we 
attack the issue and, second, as to the best way to resolve it 
moving forward, particularly in light of the fact that now if 
we are going to have women in combat, I think the potential for 
the issue to increase is going to become even greater.
    Admiral Greenert, I want to go back to an incident that 
didn't occur on your watch. But as I recall, several years ago 
when we had the first females go out on an aircraft carrier 
that when they returned to port, a significant percentage of 
those females were pregnant. Now I don't remember exact 
percentage, but as I recall, it was pretty high percentage.
    Was any investigation made by the Navy following that 
incident to determine whether or not all of those pregnancies 
occurred as a result of consensual acts, or was there any 
investigation made regarding sexual attacks that were made on 
that carrier?
    Admiral Greenert. Senator, I will have to take that one for 
the record and go dig up and get those facts behind that.
    [The information referred to follows:]

    An investigation would have been initiated if a sailor reported a 
sexual assault. In 1988, the Naval Criminal Investigative Service began 
maintaining records of sexual assault investigations (records are 
maintained for 50 years). In review of these archives, we found no 
reported sexual assaults during the first deployment of USS Eisenhower 
with women on board (October 1994-March 1995). Additionally, there were 
no delayed reports of sexual assaults upon the ship's return from 
deployment.

    Senator Chambliss. Well, my reason for asking that is that 
I hear and I understand all of you talk about the importance 
for chain of command and the importance that we follow that. If 
we are going to maintain good order and discipline in the 
military across the board, that has to be the case. But there 
also has to be some kind of fear put into these young people 
that come to every branch of our Service the very first day 
that they raise their hand and swear to defend the 
Constitution.
    The fear has to be that that chain of command that we 
allude to really is serious about making sure that these types 
of sexual assaults do not occur and, by golly, if they do, 
starting with the drill sergeant all the way to the top, 
somebody is going to make sure that you pay the price if this 
does happen.
    If you look at the private sector, if something like that 
had happened, there would have been an extensive investigation, 
and it wouldn't be taken for granted that everything was 
consensual. But I dare say that after that happened, it made 
the headlines in the paper.
    I was on the Personnel Subcommittee at the time that 
happened, and frankly, I don't recall any investigation being 
made of it. Looking back on it, it is easy now to say it should 
have because of the number of instances that we have seen.
    The easiest way to eliminate this problem is to make sure 
it never happens in the first place and that those men and 
women are trained early on as to the types of situations they 
ought to avoid and the consequences if something like this does 
happen.
    So to each of you, let me just ask you, and I will start, 
General Welsh, with you and come right down the line, is there 
any background check done during the recruitment process to 
determine whether or not these young men and young women have 
had any incidences that might lead to this?
    General Welsh. Sir, there are background checks done. But 
as was previously mentioned, I am sure there have been cases 
where people have entered the military and entered the Air 
Force who have had a problem with this in the past that is not 
in any formal database.
    Senator Chambliss. Admiral?
    Admiral Greenert. Background check in regard to criminal 
record, those are done. But as General Welsh said, to the 
degree and the success, we have to go back and check.
    Senator Chambliss. General?
    General Odierno. The same. Background checks are done, but 
the ability to identify sexual offenders is certainly not 100 
percent right now, and we have to do a better job of doing 
that. We need help with having a better database, but also 
making sure we are scrutinizing those as we go forward.
    General Amos. Senator, we are plugged in deeply to the FBI 
database, and we absolutely willingly will not recruit a marine 
or candidate that has a sexual assault background at all. When 
we find out we have a marine that has committed and is 
convicted of it, they are discharged.
    Admiral Papp. Same here, Senator. We do a background on 
every person that is recruited. If we find someone who did slip 
through the cracks and we found there is a previous conviction, 
that is a fraudulent enlistment, and they are discharged.
    Senator Chambliss. Well, there may be some exceptions as, 
General Dempsey, you responded to Senator McCain on. There may 
be some exceptions to folks who slip through that crack, but 
you are going to have to go further than looking at convictions 
of individuals.
    I don't know how you are going to do that, whether you get 
additional character references or what. There may be things 
known within the community about individuals that need to be 
given to the military to prepare, and it may be on other issues 
also. But we have to do a better job of screening folks before 
they come in.
    The other thing we have to remember as we think about 
making changes to the UCMJ in this respect, the young folks 
that are coming into each of your Services are anywhere from 17 
to 22 or 23. Gee whiz, that is the level or the hormone level 
created by nature sets in place the possibility for these types 
of things to occur.
    So we have to be very careful how we address it on our 
side, but guys, we are not doing our job. You are not doing 
yours, and we are not doing ours with the rates that we are 
seeing on sexual assaults. As I said to start with, you 
recognize it. We recognize it. We have to figure this thing out 
because we simply can't tolerate it.
    Thank you very much, Mr. Chairman.
    Chairman Levin. Thank you, Senator Chambliss.
    Senator Udall.
    Senator Udall. Thank you, Mr. Chairman.
    Good morning to all of you for appearing today, and thank 
you for being here to discuss what is probably the most 
troubling issue that this committee has addressed since I was 
elected to the Senate.
    For good reason, the American people trust our military 
more than any institution in our country, and that trust is 
well deserved. But now I am afraid that some of the 
dishonorable actions of our troops and some of our leaders are 
threatening that trust.
    Every sexual assault committed by an American servicemember 
represents a fundamental failure of leadership, and we are not 
just talking about one or a few assaults. We are talking about 
thousands. If the troops can't trust their teammates or their 
leaders to keep them safe, then we are facing a fundamental 
breakdown of good order and discipline, and that puts our 
troops at greater risk than they already face.
    We ask a hell of a lot of our troops, but I refuse to ask 
them to put up with rape. Make no mistake, sexual assault is a 
national disgrace. But the American people expect our military 
to set and uphold the highest possible standard of conduct, and 
frankly, the military is failing to meet that expectation.
    I have been working with my colleagues on both sides of the 
aisle on legislation that will help to end this plague, and I 
know that you are working toward the same goal. But to be 
blunt, you need to do more, and it needs to happen much faster.
    As our senior leaders and as fathers, I know you agree that 
the status quo is unacceptable. So I expect to see bold and 
immediate action to end this crisis because I can assure you 
that that is what you will be seeing from me and my colleagues 
on this committee.
    General, let me turn to my first question, and I would hope 
I could receive a yes or no answer. Do you feel that the DOD is 
lacking the authority or the tools it needs to reduce the 
incidence of sexual assault in the military? If not, then why 
do you believe that the number is not dropping? If DOD has the 
power it needs to solve this crisis, what isn't being done?
    General Dempsey, I think it would be appropriate if I 
started with you.
    General Dempsey. Well, as I said in my opening statement, 
Senator--by the way, thanks for your passion about this issue. 
I assure you we share it.
    As I said in my opening statement, there are some things we 
have had an opportunity to reflect on together as chiefs with 
our SJAs, with DOD, and those things we have actually come 
forward and said we have had enough time to deliberate on 
those, and we are eager to move ahead. There are other things 
that this 576 panel I think will illuminate as we allow it to 
do its work.
    So I think, in general, we have the tools that we need, but 
we haven't been getting it done. You said so. We agree. So, 
there are other measures to be taken, and we hope that that 
panel allows us to understand them.
    Senator Udall. General Dempsey, I think you speak for the 
panel here and for all the Service Chiefs.
    General Dempsey. Well, be careful about that.
    Senator Udall. Okay.
    General Dempsey. These guys are not bashful characters.
    Senator Udall. Maybe I will start then, start with Admiral 
Papp, and we can move across to General Amos and General 
Odierno and in turn? Admiral?
    Admiral Papp. Yes, sir. I think we have all the tools. It 
is all a matter of focus, and that is our job as leaders. We 
have been driving that focus now, and I expect to see results.
    Senator Udall. General Amos?
    General Amos. Senator, we absolutely have the tools. We 
have failed in this in the past. It has not been a top priority 
in the years past, in the decades past. If it was, we wouldn't 
be here today.
    But it is now. It is now in my Service, and I speak for 
probably all of us, it is a priority in our Services now. We 
are after it, and we hear you loud and clear.
    Senator Udall. General Odierno?
    General Odierno. I would just say I think we have adequate 
tools, but I think there is some refinement that we can work 
together with on this. I think that is around the edges, and I 
think we just have to make sure we understand the second- and 
third-order effects of those refinements.
    I think that, to me, is the critical piece to this as we 
move forward.
    Senator Udall. Admiral Greenert?
    Admiral Greenert. I think we have the tools, that the 
commander has the tools, we have the tools to provide a proper 
atmosphere of dignity, respect, and make sure the command 
climate is there. I think Congress and this committee have come 
forward with some ideas to further those tools, and I think 
that is great, and we should continue to pursue those, to move 
faster, to your point, Senator Udall.
    We should evaluate these tools to make sure we understand 
them, the second- and third-order effects, so we don't--so we 
do make the progress that are intended.
    Senator Udall. General Welsh?
    General Welsh. Senator, I believe that the tools are there. 
But I also agree that we can refine them. I think that is what 
this discussion of reasonable alternatives should include, 
everything from punishments to deterrent capabilities, to make 
sure people clearly understand what the result of this crime 
will be if you commit it.
    I also think that one of the things we are lacking isn't 
the tool. It is just expertise in this arena. We don't have a 
lot of people who are brilliant in this area. We are trying to 
develop knowledge and expertise because we are so focused on 
this now. But it is going to take some time, and it is going to 
take partnering with people who really understand the problem.
    Senator Udall. Mr. Chairman, I will stop there. I know we 
are going to have a series of rounds, and I have many, many 
more questions, as do my colleagues. But this is truly 
something that needs immediate attention, and I know that we 
can solve this.
    Thank you all.
    Chairman Levin. Thank you, Senator Udall.
    Senator Wicker.
    Senator Wicker. Thank you very much, Mr. Chairman.
    Thank you to each member of the panel.
    Let me start with General Odierno because I was interested 
in your statement about the Colorado case, where the civilian 
authorities concluded that there was not enough evidence to 
proceed and then the military court came out with a different 
result.
    General Odierno, as I understand it, we have a lot of 
legislative proposals. Among changes that are being advocated 
are three that I want to ask you about and how it would have 
impacted that particular case that you mentioned. One would be 
removing unit commanders from the military justice 
decisionmaking process when a crime is reported.
    A second would be placing the convening authority for 
courts-martial for sex-related crimes outside the chain of 
command for either the accuser or the accused. Three, 
prohibiting convening authorities from setting aside 
convictions in courts-martial for sex-related crimes only.
    So let me ask you, in the case that you mentioned, how 
would these changes have impacted the, in your view, successful 
result in prosecuting a member of the military who turns out 
was a multiple offender?
    General Odierno. I think the commander has information that 
is available to him and tools that are available to him that 
maybe might raise some doubt. So what the commander did in this 
case was then ask for further investigation by our CID.
    I think if you had an independent authority, they wouldn't 
be privy to some of this information because the commander 
understands other things that go on within the climate of a 
command. So, I think it probably would not have happened if, in 
fact, the commander was not part of this process.
    Now, again, it depends on exactly what the legislation 
means. I have to take a look at it. But my initial thought is 
it would have been very, very difficult in this case. I think 
the commander, understanding his command, understanding his 
soldiers, was able to direct the CID to continue to 
investigate, and when they came up with more and more 
information and talked to other people in the unit or other 
potential victims who came forward, they were then able to 
prosecute this case over a couple months' worth of 
investigation.
    So, in my opinion, that shows the importance of the role of 
the commander and why we want him in the system. The only other 
one I would talk about, in terms of overturning convictions, I 
don't think that plays a role. That legislation did not play a 
role in this at all because that comes, obviously, after the 
court-martial would have been completed.
    So then you look at overturning results of any sexual 
offenses, and so I don't think that would have had any 
difference in this case at all.
    Do you want to add anything, Dana, on that?
    General Chipman. Yes.
    Senator Wicker. Lieutenant General Chipman?
    General Chipman. Senator, I think what the chief talked 
about is, in fact, relevant. The idea that the CID can go back 
to prior duty stations and gather that pattern of misconduct 
that may have occurred there. As Senator McCaskill mentioned, 
one victim comes forward and then others, if you retain that 
evidence for a sufficient period of time and identify other 
victims, that can add and have a cumulative effect.
    But it would not have altered the ability to set aside. I 
mean, I don't think that would have occurred in this case. We 
do think that we are inclined and over our special victim 
prosecutor history, we have pulled 28 cases that the civilians 
were not proceeding on and have been able to mount a court-
martial prosecution since 2009.
    Senator Wicker. Let me ask this question as a former Judge 
Advocate myself. In every instance that you mentioned, General 
Odierno--your JAG is sitting at your right hand today--the 
commander is in constant consultation with the JAG on all of 
these decisions?
    General Odierno. Absolutely, Senator. Absolutely.
    Senator Wicker. Okay. General Amos, I was intrigued by 
something you said, and there is a bit of a paradox here. You 
say you reject the status quo, and yet you say we have the 
tools.
    Help clear up any confusion I might have over that. Which 
proposals have the most merit in moving from the status quo, 
and would you just clarify what you were trying to tell the 
panel?
    General Amos. Senator, we have the tools because we have 
the leadership, and I think we have the capability and 
wherewithal internal to the organization, the institution, the 
commands, to be able to actually make the changes, make the 
difference, and eradicate sexual assault. So that is what I 
meant by that.
    But when I talked about I reject, what I was saying was--
referring to was just the wholesale UCMJ, it is perfect, we are 
not going to look at it. Truth of the matter, it does need to 
be reviewed, and it does need to be looked at. That is what I 
was referring to by that, sir.
    Senator Wicker. Okay.
    General Amos. I am more than willing to sit down and go 
through these things, the proposals.
    [Additional information provided for the record follows:]

    The Marine Corps generally supports the current Senate and House 
legislative proposals that make improvements in recruiting, retention, 
reporting, and transparency and maintain the commander as the central 
authority in military justice. The Marine Corps believes there is merit 
in many of the proposals, and that implementing them would improve the 
administration of military justice and the maintenance of good order 
and discipline.
    The Uniform Code of Military Justice (UCMJ) is a carefully designed 
system with many deeply embedded checks and balances. The elements of 
the UCMJ that allow it to be portable, swift and efficient (commander's 
role in charging and selecting members, worldwide personal and subject-
matter jurisdiction, and a two-thirds majority requirement for a guilty 
finding) also demand procedural safeguards that guarantee the accused's 
trial satisfies the Constitutional requirements of due process 
(enhanced rights against self-incrimination, a pre-trial Article 32 
investigation, a robust and open system of discovery, and a prohibition 
against unlawful command influence). Major structural changes to the 
UCMJ should be carefully analyzed to determine any long-reaching 
effects on the efficacy of military justice and the accused's right to 
a fair trial.
    The first group of proposals in which the Marine Corps is open to 
working with Congress to foster improvement involve changes to the UCMJ 
that will improve the military's ability to prosecute and defend 
complex cases such as sexual assaults while facilitating a commanders 
responsibility to balance swift prosecution with the accused's right to 
a fair trial. The following changes also help improve the transparency 
of the military justice system, thereby helping to create an 
environment conducive to victim trust, confidence, and reporting:

         The Secretary of Defense's legislative proposal to 
        modify Article 60 (S. 964 Sec. 2; S. 1032 Sec. 2). It is a 
        logical limitation on the power of the convening authority to 
        act on the findings of a court-martial that is based on 
        developments in the military justice system over the past 
        decades.
         Legislation that requires a convening authority to 
        provide a written justification, for inclusion in the record of 
        trial, for any action that he or she takes under Article 60 (S. 
        538 Sec. 1; S. 967 Sec. 6(a); S. 1032 Sec. 2; Secretary of 
        Defense's legislative proposal). This legislation ensures that 
        a convening authority's decision and reasoning is transparent.
         The right of a victim to submit matters in the 
        clemency process (S. 1032 Sec. 3). This change will ensure that 
        victims of all crimes are able to communicate their preferences 
        to the convening authority during the post-trial phase in a 
        similar fashion to the accused, and is consistent with the 
        victim's pre-trial right to communicate their preferences to 
        the convening authority.
         Legislation that requires a commander who is informed 
        of an alleged sexual assault to report the allegation to the 
        next higher officer in the chain of command and to the relevant 
        MCIO (S. 548 Sec. 5; S. 967 Sec. 7). This increases 
        transparency and ensures prompt and proper criminal 
        investigations of all allegations of sexual assault, regardless 
        of the time, place, and circumstances.
         The Marine Corps supports the concept of an 0-6 SPCMCA 
        level SA-IDA, (S. 548 Sec. 3(a)(I)(B)), as already implemented 
        by the Secretary of Defense and the Commandant. Before making 
        this a statutory requirement, the Marine Corps believes the 
        concept should be studied by the RSP as part of the overall 
        evaluation of the role of the commander. The Commandant of the 
        Marine Corps expanded that Secretary's withhold to include not 
        just penetration offenses, but all contact and child sex 
        offenses. However, not enough empirical data has been collected 
        to confirm that this is the proper SA-IDA level to justify 
        making it a statutory requirement.

    The Marine Corps believes any other changes to the fundamental 
structure of the UCMJ should be carefully and deliberately studied by 
the RSP. The Marine Corps recommends that the RSP, in addition to its 
already established tasks of reviewing the role of commander and 
advisory sentencing guidelines in sexual assault cases, look at 
sentencing reform in a broader sense. Specific issues the Marine Corps 
recommends studying include limiting sentencing authority to military 
judges and eliminating the good military character defense.
    The second group of issues the Marine Corps is open to working with 
Congress for involve policy changes related to recruiting, retention, 
and reporting. Collectively, these proposals will have three positive 
influences: (1) they provide a rapid way to remove sexual predators 
from the military service, thereby improving the health and safety of 
the force; (2) they encourage reporting of sexual assault allegations 
and protect those who make those reports; and (3) they improve the 
Department of Defense's ability to report critical data related to all 
aspects of sexual prevention, response, and offender accountability. 
Together, these proposals also will have a very strong deterrent effect 
on criminal sexual behavior. This in turn adds to the authority 
commanders have to protect their marines, hold sexual criminals 
accountable, and maintain good order and discipline.

         Providing authority for Inspector General retaliatory 
        investigations following sexual assault reporting (H.R. 1960 
        Sec. 537). This legislation ensures that the protections 
        afforded to military whistleblowers are explicitly expanded to 
        those servicemembers who report information regarding sexual 
        assault.
         Recruiting policies that bar sex offenders from 
        entering military service (S. 548 Sec. 2). The substance of 
        this legislation will codify service regulations that already 
        prevent sex offenders from entering military service.
         Retention policies that require mandatory separation 
        for members convicted of qualifying sex offenses (S. 548 Sec. 
        2). While the Marine Corps currently processes all convicted 
        sex offenders for administrative separation if they do not 
        receive a punitive discharge at court-martial, this legislation 
        will expedite that process.

                 Related to this proposal, for inappropriate 
                sexual misconduct that does not result in a criminal 
                conviction, but which was substantiated by an 
                investigation or a commander, the Marine Corps will 
                require mandatory processing for separation. This new 
                policy is part of the Commandant's Sexual Assault 
                Campaign Plan and will soon be published in a revised 
                Marine Corps Separations Manual.

         Requiring a victim's commander to brief the first 
        general/flag officer in the chain of command within 8 days of 
        an unrestricted report of sexual assault (S. 1032 Sec. 8). The 
        ``8-day report'' ensures that commanders are providing timely 
        and appropriate victim care. It also provides general or flag 
        officer oversight and trend analysis of sexual assault cases 
        within his or her purview; this in turn allows for authorities 
        to direct appropriate training, remediation, or safety measures 
        where appropriate. This proposal also mirrors existing Marine 
        Corps practice.
         Comprehensively reviewing the training and 
        qualifications of all DOD personnel responsible for sexual 
        assault prevention and response within the Armed Forces for the 
        discharge of such responsibility (S. 964 Sec. 1 ). This 
        legislation ensures that the appropriate personnel are in these 
        important jobs. The Commandant of the Marine Corps has already 
        put this into practice by hand-selecting an O-6 operational 
        commander, whom he recalled from a deployment, in order to put 
        him in charge of the Marine Corps' Sexual Assault, Prevention, 
        and Response office.
         Providing guidance on a commanders' ability to 
        temporarily reassign or transfer those accused of sexual 
        assault (H.R. 1960 Sec. 535). This legislation would ensure 
        that commanders are aware of their authority to transfer a 
        marine or sailor who is accused of sexual assault, when such a 
        transfer or reassignment would be in the best interests of the 
        victim and good order and discipline.
         Requiring a commander to screen a servicemember's 
        personnel records for any history of sexual assault upon 
        assignment or transfer to a new unit (S. 548, Sec. 6). This 
        legislation is an added check on our system of screening for 
        sex offenders at service entry and ensures that commanders are 
        aware of any history of sex-related offenses of their incoming 
        personnel.
         Increasing the requirements for retaining records for 
        sexual assault cases (S. 548, Sec. 7). This legislation will 
        improve tracking and is currently pending implementation by 
        service regulation in the Marine Corps.
         Adding details to the DOD SAPR Annual Report (S. 871 
        Sec. 3). This requirement will allow the DOD and Services to 
        more closely track those accused of sex offenses and gather 
        data on a unit's history of dealing with these cases.
         Requiring the assignment of SANEs at the brigade level 
        and higher unless it is an undue burden (H.R. 1986 Sec. 2). 
        This requirement will ensure that each victim is provided the 
        ``gold standard'' for sexual assault forensic examinations and 
        will prevent revictimization and unnecessary trauma after a 
        sexual assault.
         Establishing a uniform policy or legislation that 
        appropriately proscribes relationships, and sexual contact 
        between certain servicemembers (between trainers and trainees, 
        and between recruiters and applicants), as well as mandatory 
        administrative separation of members who violate this policy 
        (H.R. 2206 Sec. 2(a)-(c)). This legislation recognizes the 
        unique position of power present in the trainer-trainee 
        environment and holds our trainers and recruiters to an 
        appropriately higher standard and is reasonably designed to 
        prohibit them from forging consensual relationships.
         Increasing the rights and protections for veterans 
        with military sexual trauma (S. 294 Sec. 2; H.R. 975 Sec. 3). 
        These protections will expedite veterans' benefits for 
        servicemembers who have been the victim of a sexual assault.

    I support all of the aforementioned proposals for the reasons 
articulated and because I believe that they will best ensure that our 
victims of sexual assault receive the care they need and the justice 
they deserve. I am also open to explore other innovative measures that 
could improve upon the current system, thereby better effectuating a 
commander's ability to maintain good order and discipline within a 
warfighting organization.

    Senator Wicker. You mentioned, General Amos, aggressive 
steps that you have taken. Since you have taken those steps, is 
the situation better or worse now in the Marine Corps, in your 
judgment?
    General Amos. The numbers of reported sexual assaults have 
gone up 31 percent since I took those steps. You are going to 
look and say, ``Oh, my gosh.'' When we began this campaign plan 
in June of last year, we said if we are going to be successful 
to set the conditions, the atmosphere, the command climate, 
such that our victims are comfortable coming forward, then we 
can expect the numbers of reported incidents to go up.
    We don't know what the total number of incidents are. They 
are up there somewhere. But what we do want to do is try to 
capture as many of those as we can. So our numbers of reported 
incidents have gone up. I expected that to happen. I don't take 
solace in it, but it is the reality of a successful campaign.
    Senator Wicker. You think they were occurring, but now more 
of them are being reported because of your aggression?
    General Amos. Oh, absolutely, sir. What we don't know is 
the top line. In a perfect world, the total numbers of real 
assaults, whatever that number is, if we are successful in our 
campaign plan, will come down. The numbers of actual reports 
will go up, and somewhere they will meet, and we will have 
absolute ground truth, which is what I think Senator----
    Senator Wicker. Okay. Admiral Greenert, is that happening 
in the Navy in these particular locales where you have really 
been pressing it? At schools, at the Naval Academy, at 
Pensacola, are things getting better or getting worse? Are we 
seeing more reports because reporting is okay now?
    Admiral Greenert. We are just getting started at the Naval 
Academy and in Pensacola. But in San Diego and in Great Lakes, 
where our training command is, we are getting more reports. 
Navy overall is a 50 percent increase in reports.
    We are getting a significant amount, I have to give you the 
numbers, of incidents that occurred a couple of years before, 
where somebody has decided to come forward from the past. But 
overall, in those sites that I described, in Great Lakes and in 
San Diego, particularly in Great Lakes, the number of incidents 
has gone down by two-thirds.
    It is still we have promising information in San Diego 
some, but it is not statistically significant, from 21 to, say, 
13 over a 6-month period. That is just data right now, Senator. 
We have to look at it.
    Senator Wicker. Thank you.
    Chairman Levin. Thank you very much, Senator Wicker.
    Senator Manchin.
    Senator Manchin. Thank you, Mr. Chairman.
    Thank all of you for being here today.
    I had the privilege of meeting with Secretary Hagel a few 
weeks ago at the Pentagon, and I know that he is serious about 
cutting this cancer from the ranks of the military. It is a 
tough issue and one that has plagued our military for far too 
long, and I think you all would agree on that.
    I believe you are understanding that Congress is serious 
about not going to sit back and let this continue. I know that 
all of you are completely committed to working with us, and we 
can't change what has happened, but we can work very hard to 
make sure it doesn't continue to happen.
    To all of you, I would say this is not a new problem. I 
look at the Navy Tailhook scandal, 1991. The Army basic 
training scandals in the mid-1990s. The Coast Guard captain who 
was kicked out in 2010 for improper relationships with 
subordinates. You had the Air Force basic training scandal at 
Lackland. There are many, many more. Most disturbing are the 
recent abuses by those charged to prevent sexual assault.
    After each of these instances, DOD leaders all said ``never 
again'' or used phrases like ``zero tolerance.'' So I guess I 
would ask what is different this time? What is different this 
time? If we have a history of this repeating itself and nothing 
ever being done, what is different now?
    General Dempsey?
    General Dempsey. Well, I will respond, and then you can 
redirect to the chiefs. But I will have 39 years in the Service 
tomorrow. So I have been through periods of enormous change and 
also periods where we have had this issue.
    You talk about the 1990s, I have actually spoken--we have 
actually spoken about that as well. I think what happened in 
the 1990s is we focused on victim protection. We immediately 
focused our energy on victim protection probably out of 
balance----
    Senator Manchin. Versus prevention.
    General Dempsey. Right, versus prevention. That is right.
    Then, as we have reflected on it, we entered this period of 
12 years of conflict. Frankly, I think we probably--I will 
speak for myself. I think I took my eye off the ball a bit in 
the commands that I had. The chief talks about doing command 
climate surveys. At the operations tempo (OPTEMPO) we were 
operating, some of that stuff, frankly, just got pushed to the 
side, and we didn't do the right amount of command climate 
surveys.
    What you are hearing, I think, today is the recognition 
that we have to go back to take some of these tools that we 
have and make better use of them and focus our energy on it. We 
are also spending a lot more time now working on the prevention 
side of it.
    I think we also have to acknowledge that coming out of this 
period of conflict, we have soldiers, sailors, airmen, marines 
and coastguardsmen who engage in some high-risk behavior as 
they come out of the conflict. So, when you tie it all 
together, I wouldn't say that we have been inactive, but we 
have been less active than we probably need to be.
    What you are hearing reflected here today is a willingness 
to take the tools we have, but also consider other tools as 
well.
    Senator Manchin. I would just say that I think that the 
Senate or Congress is more balanced with our Senators of 
different gender, if you will, who bring a balance to us and 
bring this, and you can see all the different aspects of what 
we are all concerned about, and we support all of their 
efforts.
    But with that being said, do you believe by leaving it in 
the chain of command, if anybody--and General Amos, I would say 
that there is a lot of power in the military. With the ranks, 
and I think that is the concerns we may have, is it truly going 
to be able to correct itself without intervention of the really 
tough legislation we are talking about?
    General Amos. Senator, I would say the legislation, the one 
we are talking about removing the convening authority out of 
the chain of command is absolutely the wrong direction to go. I 
think it is going to take--it will take the eyes off the 
commander on a problem that is enormously important right at a 
very critical time when we are committed to making the changes.
    The changes in command climate, the changes in confidence 
can only start at the beginning. I mean only can start at the 
top. So I think we are going in the wrong direction.
    Senator Manchin. General, these types of sexual assault and 
abuse have gone on for far too long, and for over 20 years, we 
have identified some serious, some serious problems that have 
happened, serious crimes, and have not gone answered. I think 
that is why you have seen it get to the level it is today with 
26,000 that have been known and only 3,000 reported.
    It is almost intolerable that we can continue on this 
current path by allowing the commanders to be in charge at the 
level they are.
    General Amos. Senator, I will make a statement here. I am 
so committed, my Service is, and we all are, but I will just 
speak for myself on this thing, to making the changes and 
turning this completely around that if I honestly believe that 
pulling the commanding officer, the convening authority, the 
disposition authority out of the chain of command would fix it, 
then, sir, I would raise my hand and I would vote for it today.
    I would vote for it today. It is not clear to me that that 
is the case because it is not that way in anything else that we 
deal with in the military.
    Senator Manchin. Is there anybody here that disagrees with 
General Amos basically on removing this from the chain of 
command? Anybody disagree with that statement?
    General Dempsey. No.
    Senator Manchin. You all are in agreement that it must stay 
in the chain of command?
    General Dempsey. I am. Yes.
    Senator Manchin. Anybody else want to speak to that?
    Admiral Greenert. Senator, I don't know how to take it out 
of the chain of command and then in the continuum of 
responsibility and authority that we tell our people that they 
are responsible for the welfare, and this goes to training, all 
the way through combat, all of that, how you take that part out 
of it and then you put the victim back in, if they come back. 
Or the report is reviewed, the investigation is reviewed, and 
it is returned, they say, well, here you go. It is back again.
    I just don't understand how to do that yet. So, from that 
perspective, I do agree with General Amos because I haven't 
been able to internalize or understand it. But as I study the 
proposals, I don't know how that works.
    But this I do know. We do hold them accountable for that. 
That has been forever. Especially those of us in the Navy who 
go out to sea within the units and that, it can confuse the 
crew, and that concerns me.
    I want to--I have to understand. I think it needs to be 
reviewed much more closely before we jump on it.
    Senator Manchin. I will save my other questions for the 
second round, but thank you very much for your answers.
    Chairman Levin. Thank you very much, Senator Manchin.
    We are not planning, by the way, on a second round on this 
panel.
    Senator Manchin. We are?
    Chairman Levin. We are not. Just so----
    Senator Manchin. I will wait for another day.
    Chairman Levin. Thank you. Or you could ask questions for 
the record.
    Any of us, by the way, are free to answer or ask, excuse 
me, questions for the record, but we are not planning on a 
second round on this or other panels, given the number of 
witnesses that we have to cover today.
    Thank you, Senator Manchin.
    Senator Fischer.
    Senator Fischer. Thank you, Mr. Chairman.
    Thank you all for being here today.
    It seems like the talk in the media has focused on the 
seven women members of this panel, but I would like to point 
out that all of my colleagues take this issue very, very 
seriously, and they have been leaders in the past on this--
Senator Levin, Senator Inhofe. We need to resolve it, and it 
needs to happen soon.
    We are looking at a crisis here that is being viewed 
through the lens of gender, but I think all of us need to 
acknowledge that this isn't a gender issue. This is a violence 
issue, as my colleague Senator McCaskill so eloquently reminded 
all of us. This is a crisis that I believe the military needs 
to step up and confront.
    In response to a question that we had from Senator Reed 
previously, many of you indicated that no commanders have ever 
been removed for setting an inappropriate environment with 
regard to sexual assault. In fact, Admiral Greenert, in your 
prepared statement, you wrote that we are also addressing 
command climate and how it contributes to sexual assault, 
particularly the impact of sexual harassment and how it 
contributes to a culture that may enable sexual violence.
    I guess I would first ask you, Admiral, do you believe that 
this climate we have, this culture that we are kind of just 
putting aside sexual harassment and not taking action on that, 
contributes then to sexual assault?
    Admiral Greenert. I believe that a command climate that 
tolerates innuendos, jokes, posters, and allusions therein 
involving gender sets the stage for an environment where a 
predator could, if not flourish, exist. I believe that that, 
first of all, you have to get to that, and we are focused to 
get to that, and that I am hopeful then because I don't know 
that it would expose such a person.
    Senator Fischer. I would ask each of you, have you 
evaluated any ways to enhance the current command climate 
reports to make commanders more accountable for the environment 
that they are setting within your ranks. If we could start with 
you, Admiral?
    Admiral Papp. We have no formal process, ma'am. But that is 
something that we stress verbally as we go through command and 
operations school, when we send people out there with all the 
senior field commanders that I select to take over our major 
commands, that they are to focus on command climate issues and 
make sure that any report of any sort of command climate 
violation is thoroughly investigated.
    Most often, we send our senior enlisted member from the 
district or the area to do a climate survey. We have a couple 
of units right now that we have heard reports on, and we are 
doing climate surveys on them.
    Senator Fischer. Do you think it would be beneficial if you 
had a formal process in place?
    Admiral Papp. That is certainly one of the things that we 
are looking at through our sexual assault task force.
    Senator Fischer. Thank you.
    General?
    General Amos. Senator, I think command climate is the 
single, my perspective, is the single greatest indicator not 
only for the combat readiness, the equipment readiness, the 
personnel readiness of the unit, all of those things, but also 
the health, what we call the spiritual health of that 
institution. I am not talking religion here. I am talking about 
the ability to be able or the absolute sacredness of taking 
care of one another, not being a predator, not preying on one 
another.
    So we started the command climate officially. It begins the 
end of this month. I approved it last month, as I said a bit 
ago. Those reports for the climate of that organization, it 
will be everybody will take it, will go to the next higher in 
the chain of command. So that the commander's commander will 
now be able to look into that organization and say, okay, how 
are they with regards to sexual assault, sexual harassment, and 
the like.
    Senator Fischer. Thank you.
    General?
    General Odierno. Senator, several things. One is I directed 
about a year ago the incorporation of command climate surveys 
done within 3 months when you take command, 6 months, and then 
12 months thereafter to get out specifically this year.
    Second, we are doing a pilot on 360 assessments of 
battalion and brigade commanders, which will incorporate 
questions about the entire command climate to include sexual 
harassment, sexual assault. We are in the process of 
determining what we will do with those assessments, and that is 
part of the pilot.
    Once we get those, I expect that I am looking at directing 
360s for every battalion and brigade commander beginning this 
fall. I am just waiting for the results of this pilot about how 
we do it.
    So with those kind of issues, it is about commanders 
understanding how important that climate is, and those will be 
reported to those who they work for as we go through this 
process.
    Senator Fischer. I know that all of you value trust and its 
importance within your ranks. So, General, with this pilot 
program, how do you develop that trust, and how are you going 
to evaluate it? By the number of reporting that comes out that 
General Amos talked about earlier?
    General Odierno. I think, yes, absolutely. I think one of 
the things we are struggling with, there is lots of different 
opinions on this. But the one thing I know for certain is that 
we need to make sure commanders understand that we won't 
tolerate toxic environments, and toxic environments can be 
created in several different ways. Sexual harassment, sexual 
assault is part of a toxic environment, and that is what we are 
looking to correct in this, as we look at this.
    Admiral Greenert. Our Navy Inspector General visits, and 
inspections include the command climate with regard to in my 
case that I described to you of sexual harassment. Also General 
Odierno and General Amos mentioned command climate surveys. 
They are done at the relief of a commanding officer and then 
periodically after.
    Those results go to the immediate superior in command to 
review on the unit, and then those comments then have to be 
adjudicated--reconciled between the two overall so that you 
look at the entire ship types. All the surface ships and air, 
those are reviewed by what we call the type commander. So they 
move up.
    Senator Fischer. How often are those surveys done, and who 
receives them and responds to them?
    Admiral Greenert. Immediately upon or within I think it is 
6 months of relief of a commanding officer--I will get you the 
details of this. But shortly after relief by the commanding 
officer. Then I will get you specifically the period. I think 
it is about annually afterward that you get a command climate 
survey.
    Senator Fischer. Do you take that into consideration on the 
next assignment for the officer then?
    Admiral Greenert. Yes, Senator. Because that survey is then 
reviewed by the immediate superior. Among the things you 
evaluate your unit commander on would be reports such as this.
    Senator Fischer. Thank you.
    Chairman Levin. Thank you. Thank you, Senator Fischer.
    Senator Fischer. Thank you, Mr. Chairman.
    Chairman Levin. Senator Shaheen.
    Senator Shaheen. Thank you, Mr. Chairman.
    Gentlemen and Admiral DeRenzi, we very much appreciate your 
being here today, and I know that everyone on this committee 
shares the appreciation for your service and for the service of 
all of the men and women in our military today. I know that we 
are all very concerned about addressing what is a horrible 
scandal on the good service of most of the men and women who 
are serving. So thank you for your efforts to do that.
    Chairman Levin, when he gave his opening remarks, talked 
about some of the scandals that have surfaced in the last 
couple of years from the allegations at the Naval Academy about 
rape of one of the female midshipmen to the rugby team being 
suspended at West Point, to the recent videotaping at West 
Point, to Fort Hood, to the Aviano Air Base, to Lackland. All 
of these scandals that have surfaced make me wonder if the 
measures that have been taken are going to be able to 
fundamentally address this issue and whether it is not going to 
take a more significant look at how we operate in the military 
to really address this scandal at all levels.
    So, Admiral Greenert, you talked about the chain of command 
and how it might be implemented to address some of these crimes 
outside of the chain of command. I wonder if anybody here has 
looked at some of our allies, at Britain and Canada and Israel, 
which have removed the chain of command from serious cases, and 
how that is working and how they have done that?
    General Dempsey or Admiral Greenert, I don't know which one 
of you might like to respond?
    Admiral Greenert. I have not, Senator. But I will. I know 
the Israel navy chief very well, and I will have that 
conversation. I thank you for that tip.
    Senator Shaheen. General Dempsey, do you want to add 
anything?
    General Dempsey. We have just begun that, actually, in 
preparation for this hearing and for the consideration of some 
of the legislative recommendations we have. So I have a 
briefing from my Australian counterpart and my Israeli 
counterpart, and I have a couple of other requests outstanding.
    Senator Shaheen. I hope you will let us know what you find 
out.
    Almost everyone today has talked about the importance of 
good order and discipline, but I am wondering if you can 
respond to how sexual assault in a unit that goes unpunished 
and unreported might undermine unit morale and cohesion, 
especially as we look at more and more women joining the ranks 
of our military. What has been your experience on that?
    General Odierno, have you got----
    General Odierno. I think, as I said earlier, it gets to the 
very fabric of who we are. I mean, we have to rely on each 
other totally. As a ground force, close combat, no matter what 
your position is, you have to be able to rely on those to your 
right and left. If you can't rely on them to protect you, 
whether you are a male or a female, it goes against everything 
we are.
    So, in my mind, it gets to cohesion. It gets to our ability 
to accomplish our mission. It fundamentally goes at the 
discipline of our unit, and that is what makes it so disturbing 
to all of us. We just don't expect that in our units, but we 
are seeing it. So, it is why it is so important that we have to 
deal with this issue.
    As you said, we are increasing the role of women. We are 
increasing the number of women. We are increasing. They are in 
the Army significantly as we move forward, and so we have to 
deal with this because we rely on them and are going to depend 
on them more and more because we need their talents. It is 
important for us to go forward with this.
    Senator Shaheen. Senator Fischer and I have introduced 
legislation that would make the sexual assault prevention 
response positions more high profile, and I was pleased, 
General Odierno, that in your testimony you addressed this. I 
am wondering if there is a response from the other chiefs who 
we haven't heard from about the possibility of enhancing and 
upgrading those sexual assault prevention and response 
positions so that commanders have a hand in that selection 
process.
    Do you think this is something that would be helpful, 
General Amos?
    General Amos. Senator, I think absolutely yes. But if I 
could just caveat that with how we have done it. A year ago, 
when we were putting this campaign plan together and said, 
okay, enough is enough, let us change it. Let us fix it. I 
personally selected the head of our program and brought--he was 
out overseas in command of 2,500 marines, a Marine 
expeditionary unit. I brought him home early from the Western 
Pacific to come in and head that up because he had the passion, 
the intellect, and the capacity to be able to do that.
    So, in that regard, Senator, I think those individuals in 
charge of representing these programs to us absolutely should 
be handpicked, and in my Service, I am the guy that does that.
    Senator Shaheen. General Welsh, do you want to respond to 
that?
    General Welsh. Yes, ma'am, I would. Thank you for the 
question because it gives me the opportunity to comment on the 
SARCs we already have, who are doing absolutely phenomenal 
work. They feel like they are battling upstream on this issue, 
and they are more frustrated than anyone is. Anything we can do 
to enhance their training and their qualifications and the 
support we give them and the visibility we give them is a good 
thing.
    We are currently in the process of expanding the numbers. 
Moreover, on the air staff, we are moving the entire office to 
have it report directly to our Vice Chief of Staff. We have a 
two-star general, General Maggie Woodward, who will take over 
that office now. We will hire a Senior Executive Service 
deputy. We will expand the number of people in the organization 
and hire highly qualified experts to come in and help give us 
the expertise that we need to help move forward in this area.
    You asked the question a minute ago about what can happen 
if a climate is allowed to continue. I believe the Lackland 
issue that we saw the last couple of years is exactly that. It 
was allowed to continue. It got very ugly very quickly, and 
that is the danger.
    One of the comments I made earlier had to do with not 
knowing if we have relieved commanders for this. While I don't 
think it was directly termed for a climate of sexual assault, 
we did have two commanders at Lackland that were relieved by 
General Ed Rice, and it was clearly related to the climate that 
they had allowed to develop.
    So, I would like to correct that on the record. Somebody 
reminded me of that a moment ago.
    Senator Shaheen. Thank you. My time is up.
    Chairman Levin. Thank you very much, Senator Shaheen.
    Senator Graham.
    Senator Graham. Thank you, Mr. Chairman.
    I think Senator McCaskill made a point that I thought was 
very intriguing. When people come forward and talk about being 
assaulted or bad working environment are completely two 
different things. Is there a system in place to capture those 
two different things?
    Of all the numbers we are talking about, can you tell us 
from your Services' point of view of the numbers, the 
thousands, whatever allegations there are being made out there, 
how many of them fall into the category of inappropriate 
conduct versus a crime? Can you tell me that in the Coast 
Guard?
    Admiral Papp. No, sir. I don't have stats or figures that I 
can give you, and we can certainly do that for the record.
    [The information referred to follows:]

    General Odierno and Lieutenant General Chipman. The Army's annual 
report on sexual assault currently includes the following categories: 
rape, sexual assault, aggravated sexual contact, abusive sexual 
contact, forcible sodomy, and any attempts to commit these offenses. 
Several methods of distinguishing between the ranges of infractions 
could easily be developed from our current reporting and data 
collection. For example, the Army could easily separate the reporting 
into three or more subsections such as: penetrating offense, non 
penetrating and abusive sexual contact (unwanted touching).
    Furthermore, the existing Defense Manpower Data Center Human and 
Gender Relations Surveys examine a very broad spectrum of misconduct 
defined generically as ``unwanted sexual contact.'' This broad 
categorization complicates our efforts to accurately measure the gap 
between estimated incidents of sexual assault and reported sexual 
assault. However, the Army Research Institute conducts a separate 
survey every 2 years that examines a much more specific set of 
behaviors and can accurately distinguish between inappropriate conduct 
and criminal acts.
    General Welsh. We will work with Chairman of the Joint Chiefs of 
Staff leadership to propose and put into place a system of tracking the 
sexual assault misconduct in different categories, especially rape, 
sexual assault, and nonpenetration sexual contact.
    One point of clarification from the hearing, a distinction is 
already made in the Workplace and Gender Relations Survey of Active 
Duty Members between unwanted sexual contact (i.e., sexual assault) and 
unwanted gender-related behaviors (i.e., sexual harassment and sexist 
behaviors).
    Although the term ``unwanted sexual contact'' does not appear in 
the Uniform Code of Military Justice (UCMJ), it is used as an umbrella 
term intended to include certain acts prohibited by the UCMJ. For the 
purposes of the 2012 WGRA survey, the term ``unwanted sexual contact'' 
means intentional sexual contact that was against a person's will or 
which occurred when the person did not or could not consent, and 
includes completed or attempted sexual intercourse, sodomy (oral or 
anal sex), penetration by an object, and the unwanted touching of 
genitalia and other sexually-related areas of the body. This misconduct 
is covered under Article 120, 125, and 80 of the UCMJ, and these are 
the offenses included in our current tracking.
    To determine the extent of unwanted gender-related behaviors, 
members were provided a list of 12 sexual harassment behaviors and 4 
sexist behaviors and were asked to indicate how often they had 
experienced the behaviors in the past 12 months. The 12 sexual 
harassment behaviors comprise 3 components of sexual harassment-crude/
offensive behavior (e.g., repeatedly told sexual stories or jokes that 
are offensive); unwanted sexual attention (e.g., unwanted attempts to 
establish a romantic sexual relationship despite efforts to discourage 
it); and sexual coercion (e.g., treated badly for refusing to have 
sex). Sexist behavior is defined as verbal and/or nonverbal behaviors 
that convey insulting, offensive, or condescending attitudes based on 
the gender of the respondent
    General Amos and Major General Ary. The different types of sexual 
offenses are separately tracked and reported under existing surveys and 
systems.
    The term ``unwanted sexual contact'' (USC) is used in the Workplace 
and Gender Relations Survey of Active Duty Members (WGRA) and is 
defined as ``intentional sexual contact that was against a person's 
will or which occurred when the person did not or could not consent, 
and includes completed or attempted sexual intercourse, sodomy (oral or 
anal sex), penetration by an object, and the unwanted touching of 
genitalia and other sexually-related areas of the body.'' The WGRA 
further divides USC into three categories: penetration of any orifice; 
attempted penetration; and unwanted sexual touching (without 
penetration). The full WGRA report includes a break-down of responses 
in each of these three categories.
    The Department of Defense, in DOD Directive 6495.02 (Sexual Assault 
Prevention and Response (SAPR) Program Procedures), defines ``sexual 
assault'' as ``Intentional sexual contact characterized by the use of 
force, threats, intimidation, or abuse of authority or when the victim 
does not or cannot consent. As used in this Instruction, the term 
includes a broad category of sexual offenses consisting of the 
following specific UCMJ offenses: rape, sexual assault, aggravated 
sexual contact, abusive sexual contact, forcible sodomy (forced oral or 
anal sex), or attempts to commit these offenses.'' The purpose of 
having a broad definition of sexual assault is to permit a larger 
population of victims access to SAPR services.
    Existing systems used to track ``sexual assault'' offenses (e.g., 
the Defense Sexual Assault Incident Reporting Database (DSAID), which 
is a centralized, case-level data system for documenting sexual assault 
reports; and the Marine Corps Case Management System (CMS), which 
tracks court-martial cases in a single database) identify the specific 
alleged UCMJ offense(s).
    Allegations of sexual harassment are separately tracked using the 
Discrimination and Sexual Harassment (DASH) system. The purpose of the 
DASH system is to track all formal complaints of discrimination or 
sexual harassment and the parties involved in the investigation until 
final action is taken.
    The following chart breaks down the types of offenses, according to 
the 2012 WGRA.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  Attempted sexual  Completed sexual
                                                                 Unwanted sexual    intercourse,      intercourse,                       Maximum margin
                     USC Characterization                           touching      anal or oral sex  anal or oral sex   Did not specify      of error
                                                                    (percent)         (percent)         (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
DOD Total.....................................................               42                15                20                23              +/-9
USMC Total....................................................               29                22                20                30              +/-9
USMC Males....................................................               31                15                10                44              +/-5
USMC Females..................................................               26                32                34                 8            +/-14
--------------------------------------------------------------------------------------------------------------------------------------------------------
Derived from DMDC's 2012 Workplace and Gender Relations Survey of Active Duty Members Tabulations of Responses, pgs. 348 and 349.

    Admiral Papp. [Deleted.]

    Admiral Papp. But just intuitively and anecdotally, 
whenever we have somebody who is removed for command climate 
issues, inevitably it goes much deeper, and we find other----
    Senator Graham. I guess I would just say command climate 
doesn't do justice to what we are talking about. Command 
climate is a hostile workplace to me. A crime is a crime.
    So, to me, how do we capture the difference between the 
sexual perpetrator who somehow got through the gates of 
training in the military, who has been able to survive and 
sometimes flourish in the military performing their duties, but 
yet have this as a disposition that will destroy the military 
if not addressed? How do we separate those two? Does anybody 
have any ideas to make sure we understand the difference?
    Admiral Papp. Well, sir, I agree with Senator McCaskill 
completely that there are two separate things we measure.
    Senator Graham. Yes, but are they being reported in a way? 
What about the Army?
    General Odierno. Yes, right now, they are required to be 
reported together.
    Senator Graham. Well, I think----
    General Odierno. We have to separate them. We can separate 
them.
    Senator Graham. I think that is a really good place to 
start.
    General Odierno. We understand that.
    Senator Graham. Because I don't want everybody in the 
country to think that every allegation is of rape. Now every 
allegation of ``I was inappropriately talked to'' is very 
important and needs to be dealt with that I was not treated 
right. But I think there is a big difference between the two 
systems that she is describing, and I don't believe there is 
any tolerance for anyone to allow someone who is a sexual 
predator to get anything other than just as hard a hit as we 
can give them.
    I would like to follow up on her question and you all 
report back to us how you would create two tracking systems.
    Now about lay people making prosecutorial decisions, that 
is a bit odd to the average person. I mean, in the civilian 
community, decisions to prosecute individuals are made by 
trained lawyers, sometimes elected, sometimes appointed. How 
would you justify this in the military, to have such a 
different system?
    General Odierno. I would just say that I think what we do 
in the military is very unique. We are asked to do things that 
are very different than any other profession, and that is why 
the UCMJ was originally created, for us to have this unique 
relationship because of the good order and discipline that we 
often talk about and the unit cohesion that is necessary to do 
the things that we are asked to do.
    Senator Graham. Would you agree that a military commander 
has authority that is hard to find a counter to in the civilian 
community?
    General Odierno. That is correct.
    Senator Graham. Very few of us have the authority to order 
somebody into battle.
    General Odierno. That is correct.
    Senator Graham. Very few of us have the responsibility of 
commanding people where they don't really get to discuss among 
themselves if this is a good idea.
    From the Navy point of view, I remember writing a law 
school paper about the absolute authority of a naval commander 
at sea. There was a case where a guy had been up for like 20 
hours. He went to sleep for 2 hours, and the ship ran aground, 
and they court-martialed the commander. Why would you do that?
    Admiral Greenert. Well, we entrust in the commanding 
officer of the ship all of the people aboard and the ship 
itself, part of the Nation. That authority and that delegated 
authority to the commanding officer is absolute, and they are 
absolutely responsible for anything that goes on.
    Senator Graham. All I would tell my colleagues, the 
military is truly a different world.
    General Gross, who picks the jury?
    General Gross. Senator, that is the convening authority.
    Senator Graham. Is there any such thing as a jury of one's 
peers in the military?
    General Gross. It is different. I mean, everybody on the 
panel--
    Senator Graham. You are not going to get a jury of your 
peers?
    General Gross. That is correct. They outrank. They outrank 
the individual who is on trial. In the case of an officer, it 
is an all-officer panel, but every officer outranks the 
individual.
    In the case of an enlisted, they can elect to have an 
enlisted panel, and part of the panel will be enlisted.
    Senator Graham. But they will be all senior enlisted 
people?
    General Gross. That is correct.
    Senator Graham. The point is that court-martial panels are 
not jury of one's peers. They are juries made up of people who 
have expertise and knowledge and experience for the unit who 
are assigned to do justice in individual cases, but have that 
command perspective because the whole point of military justice 
is to render justice in individual cases, but to make sure the 
system is moving the unit forward as a whole.
    I understand this is a bit difficult to absorb for a lot of 
folks who are not in the military. But I would say that from my 
point of view, that commanders do listen very closely to their 
JAGs. It seems like the only cases that go forward are the bad 
cases. I don't know why you would want to send a case to court-
martial where your JAG said we didn't think it was a good case.
    Can you tell us why you would do that, General Amos?
    General Amos. I would be happy to, Senator, because there 
are times when I have sent a case forward when my JAG has said, 
sir, we don't have enough compelling evidence. It is a ``he 
said, she said,'' which, quite honestly, makes up an awful lot 
of our sexual assault cases.
    There is alcohol involved. It is complicated, and I, in 
those cases, often have forwarded it to a court-martial, 
forwarded it to an Article 32, then a court-martial because I 
am going to let the jury, the judge sort it out. But I want to 
send a signal to the command that it is not tolerated here 
because it may be ``he said, she said'' to me, but it may come 
clearer in the matter of a court.
    Senator Graham. Gotcha. One last question, I am over my 
time. Article 60 power, the ability to set aside a finding or a 
specification and reduce a sentence, do you all agree that that 
should be taken away from commanders in most cases? To me, that 
is internally inconsistent with your message to us in terms of 
power of the commander. How do you reconcile that?
    General Chipman. Senator, if I can answer that? I think 
that when the code was promulgated in 1950, it was before 
substantial reforms had occurred in 1968, where we brought in 
trained judges, qualified lawyers, to perform those roles. So, 
I think that the conditions that warranted that authority back 
in 1950, coming out of our experience in World War II, no 
longer pertained.
    Chairman Levin. Thank you, Senator Graham.
    Now Senator McCaskill has raised this question of keeping 
statistics much more separately in terms of assaults, sexual 
misconduct involving assaults versus other types of sexual 
misconduct. That might not be the perfect dividing line. I am 
not sure. But the point that she raised I think is extremely 
important. Senator Graham has just emphasized that as well.
    We would ask you, I think under your leadership, General 
Dempsey, to propose and to put into place a system of tracking 
the misconduct in different categories so that we can, number 
one, understand it better but, number two, have a baseline that 
we can follow. That would be very helpful to us.
    So will you, General Dempsey, take the leadership, see if 
that is possible with the stats that are currently available. 
If it is, fine, we will have an earlier baseline.
    Senator McCaskill. It is not.
    Chairman Levin. Apparently, it is not. Senator McCaskill 
said I think it is not, and one of the Services, I think, 
indicated it is not. So either way, but assuming it is not 
available, start now. If it is, you can reconstruct something, 
fine.
    Senator McCaskill. Mr. Chairman, the numbers that we have 
been relying on that have been so widely reported is the 26,000 
number, and that is from the biannual survey. The question is, 
have you had unwanted sexual contact? That is the problem is 
that that includes sexual harassment, unhealthy work 
environment, and rapists.
    Chairman Levin. Right.
    Senator McCaskill. That doesn't help us track whether or 
not we are getting at this or not.
    Chairman Levin. I think it is an important point, and we 
are asking you, starting now, if you can't reconstruct it 
earlier, to give us a much more useful system, okay?
    General Dempsey. We will go to work on it. If I could add, 
though, just so you know how we got here, because I recalled it 
might be now 10 or 12, 15 years ago, a conversation about 
whether we should separate these categories. Because in 
separating them, you could encourage some to ignore the 
unwanted sexual touching or the sexual harassment and focus in 
only on the sexual assault, and it was our view 15 years ago 
that this was a problem that was a continuum, not individual 
acts.
    I know, but I am suggesting to you we didn't get to this 
point by being stupid. We actually got to this point because we 
were trying to do the right thing. Looking back at it, it is 
probably time to adjust it.
    Chairman Levin. Right. Well, we thank you for taking on 
that task. We think it is now important that we do that.
    Senator Gillibrand, thank you for your leadership on your 
subcommittee, too. You have had hearings on this subject, and 
you have been a leader on this subject. We very much appreciate 
both of those things.
    Senator Gillibrand.
    Senator Gillibrand. Thank you, Mr. Chairman.
    Thank you for holding this hearing, and I think what 
Senator Levin said when he opened up this hearing, he said 
discipline is the heart of the military culture, and trust is 
its soul. I am sure there is not one of you who disagrees with 
that statement, and this goes to the very reason why we are 
having this hearing.
    I have spent a lot of time over the past several months 
trying to understand this problem because I appreciate the 
service and dedication every single one of you gives every 
single day to this country. I am extremely grateful with the 
renewed passion and determination so many of you have shown in 
this hearing about how you will get to the bottom of this 
problem and how you end the scourge of sexual violence and 
assault in the military.
    I believe you when you say that is what you want to 
accomplish. But what I want to talk about today is how we are 
going to accomplish that and what the actual problems seem to 
be.
    After speaking to victims, they have told us that the 
reason they do not report these crimes is because they fear 
retaliation. More than half say they think nothing is going to 
be done, and close to half say they fear they will have 
negative consequences. They will be retaliated against. Of the 
victims who actually did report, 62 percent said they actually 
did receive some retaliation.
    Unfortunately, the reports that we do have, the incidence 
of reporting has actually dropped in comparison to the number 
of cases. It has dropped from 13 percent to under 10 percent of 
the vague estimate of 26,000 incidents. We don't know how many 
are rapes and sexual assaults and how many are unwanted sexual 
attempts.
    Now Secretary Hagel has said the most important thing we 
can do is prosecute the offenders, deal with those that have 
broken the law and committed the crime. If we can do that, we 
can begin to deal with this issue. Each one of you have talked 
about today military trust.
    General Odierno, you said the military is built on a 
bedrock of trust. Crimes cut to the heart of military 
readiness. You have to be able to rely on our troops. It goes 
to unit cohesion and discipline. You have said it perfectly.
    General Amos, you have said the exact same thing, that we 
need to have trust.
    General Welsh, you said the bottom line is, though, they 
don't trust us enough to report.
    General Amos, you said the exact same thing in April, you 
say why wouldn't female marines come forward? Because they 
don't trust us. They don't trust the command. They don't trust 
the leadership.
    General Dempsey, you said the same thing. You said that you 
might argue that we have become too forgiving because if a 
perpetrator shows up at a court-martial with a rack of ribbons 
and has four deployments and a Purple Heart, there is certainly 
the risk that we might be a little too forgiving of that 
particular crime.
    Lieutenant General Harding, you just answered Senator 
McCaskill's question, saying you think character should be 
considered whether or not we go to trial. No legal standard in 
the country agrees with you. That is why we want prosecutors to 
make that decision.
    So my concern is this. You have lost the trust of the men 
and women who rely on you that you will actually bring justice 
in these cases. They are afraid to report. They think their 
careers will be over. They fear retaliation. They fear being 
blamed. That is our biggest challenge right there. Right there.
    So what I want to ask you, now you have all said you could 
never support taking this out of the chain of command. Now the 
key question Senator McCaskill made is very important. I agree 
with you. The chain of command is essential for setting the 
climate. Absolutely. You do set the climate.
    That is why when we looked at this problem we have chosen 
to keep all Article 15 issues in the chain of command. We have 
also chosen to keep all crimes of mission--going AWOL, not 
showing up on time, not charging up the hill when you command 
your servicemember to do so. So we have understood that you do 
set the tone for all of this.
    But there is a difference between setting the tone, dealing 
with misdemeanor-level behavior and dealing with some criminal 
behavior. But when we are talking about serious crimes, serious 
crimes like rape and murder, crimes that have penalties of more 
than a year or more, what several of us are asserting and 
arguing today is we think you should do what other countries 
around the world do, who we fight with every day, that are our 
allies. They are side-by-side with us in combat--Israel, the 
United Kingdom, Australia, Germany.
    They have taken the serious crimes out of the chain of 
command for precisely this reason because the commander, while 
you are all so dedicated and determined, not all commanders are 
objective. Not every single commander necessarily wants women 
in the force. Not every single commander believes what a sexual 
assault is. Not every single commander can distinguish between 
a slap on the ass and a rape because they merge all of these 
crimes together.
    So my point to you is this has been done before by our 
allies to great effect, and in fact, in Israel, in the last 5 
years because they have prosecuted high-level cases, you know 
what has increased by 80 percent? Reporting.
    I would like you to tell me specifically if you elevated 
only the decision point of whether to prosecute the serious 
crimes to a JAG military trained prosecutor to make that one 
decision, along with the decision that Secretary Hagel has 
already recommended, the decision of whether or not to overturn 
the jury verdict, it is just two decision points for only 
serious crimes, for no other command climate.
    I do agree with you, U.S. commanders are essential to this. 
I don't think you can get this done if you are not 100 percent 
dedicated to eliminating the scourge of sexual assault. So I 
would like you to say, and starting with General Dempsey, how 
do you feel about those two decision points? Why can't you 
maintain good order and discipline without those two decision 
points?
    Because you have those two decision points today, and you 
do not have good order and discipline. You have, arguably, 
26,000 attempts, either unwanted sexual attempts, assaults, or 
rapes. That does not define, by any of your definition, as 
stated today, good order and discipline. It goes to the heart 
of not having military readiness.
    General Dempsey, please give me your thoughts about those 
two decision points, and why is overturning okay with you, but 
whether to go to trial is not okay with you?
    General Dempsey. Well, we have had the time with the chiefs 
or our SJAs to give full consideration of the Article 60 
adaptation, and we will give consideration as part of the 576 
process to the other part of the question.
    But as I have said earlier, I haven't had the time to talk 
to my counterparts. I am not sure they would completely align 
themselves with you on the success or failure of taking it out 
of their military chain of command. Some cases they were forced 
to do it, and they are expressing their support for that.
    But I do want to be clear. Though I am aligned very closely 
with my peers here on the idea that we should try to fix this 
through the commander, not around him. I also think we should 
take a look at surrounding him or her with a constellation of 
checks and balances so that we empower and hold accountable 
commanders. So that is my initial thoughts.
    Senator Gillibrand. General Amos, could you give me your 
thoughts?
    General Amos. Senator, I just pile on what General Dempsey 
said about enabling the commander better. So that is something 
we have not talked about, and actually, that is very 
encouraging.
    But just a little bit, last year we had a total of all our 
general court-martial cases last year, 97 percent of those 
under your proposed bill would go to this independent decision 
authority, independent disposition authority, 97 percent. That 
would be things like failure to obey orders and regulations. 
Clearly, that is----
    Senator Gillibrand. No, that is excluded under our bill. 
Any crime of mission is excluded.
    General Amos. Okay. I am just going by what is listed down 
here. Assault, Article 134 offenses, adultery, child 
endangerment, all those things would be would--go to this 
independent disposition authority. Those are things that are 
line with a commander's ability to be able to mete out justice 
and maintain good order and discipline.
    So, as I said earlier, if I thought--and I am not convinced 
of this. If I thought that moving in an Initial Disposition 
Authority (IDA) on sexual assault matters would reduce sexual 
assaults, increase reporting, then I would support it. I am 
just not there yet because I don't have any proof of this 
thing, and I am not convinced of it yet.
    Senator Gillibrand. Since my time has expired, I would like 
each of you to submit for the record two things. How do you 
intend to regain trust of the men and women that serve under 
you that they can get justice within the current system? 
Because that is clearly what they have told us. They don't have 
the trust, and many of you have actually said that.
    [The information referred to follows:]

    General Dempsey I agree. We are losing the trust of our men and 
women on this issue. To regain that trust, we will ensure victims are 
confident they can report without fear of blame or retaliation and have 
confidence in a transparent military justice system.
    We are taking swift and deliberate action to reinforce a 
professional work environment, prevent and respond to predatory and 
precursor behaviors, and better protect victims. Already, we have moved 
initial disposition authority to O-6 commanders or higher. We are 
aggressively implementing the nearly 100 actions in the 2013 Department 
of Defense (DOD) Sexual Assault Prevention and Response (SAPR) 
Strategic Plan. We are engaging in a Department-wide stand-down to put 
a laser focus across the force on these crimes.
    We must do all this and more to increase victims' willingness to 
report, hold commanders accountable for a unit climate of respect and 
trust, and cement an enduring culture of dignity and professionalism. 
We will identify and promote promising programs, such as the Air Force 
Special Victims Counsel pilot program. This program has already 
benefited hundreds of victims, many of whom have changed their report 
to unrestricted, an immediate indicator of greater trust in the 
process.
    We will explore every option, and we are open to every idea, that 
will help eliminate this crime from our ranks. I will not be satisfied 
until trust is restored.

    Senator Gillibrand. The second thing, how do you intend to 
hold commanders accountable if they don't get reporting up and 
they don't begin to solve this problem? Because none of you has 
ever reprimanded or held any of these commanders accountable in 
the past. But if everything starts and falls, stops and starts 
with the commanders, how do you intend to hold them accountable 
if they do not solve this problem?
    Chairman Levin. That will be asked for the record, but I do 
think, in fairness, that a number of them have testified that 
they have held commanders accountable in the past, including 
for sexual climate.
    Senator Gillibrand. But never dismissed.
    General Amos. Mr. Chairman, can I just----
    Chairman Levin. We will let their testimony speak for 
itself on that.
    General Amos. Sir, I would just like to correct the record. 
My guys behind me reminded me that we have relieved two 
colonels----
    Senator Gillibrand. Oh, you have?
    General Amos.--in the last 12 months. Two for sexual 
harassment and assault, two of them.
    Senator Gillibrand. Thank you. Just please submit for the 
record what your hope is, what your measure will be and how you 
will create a measure of accountability.
    Chairman Levin. Will you all do that then for the record? 
We will require that.
    Thank you very much, Senator Gillibrand.
    [The information referred to follows:]

    General Dempsey Commander accountability is the cornerstone of our 
success. It is absolutely essential to solving this problem and we are 
moving out on a comprehensive approach to hold commanders accountable 
for preventing and responding to sexual assault at all levels. To snap 
this issue back into the focus it deserves, we have taken immediate 
steps to expand proven methods and are moving out on new initiatives. 
We have already refined our assessments of command climate by updating 
the surveys that specifically enable servicemembers to evaluate how 
effectively their commanders promote work environments that are 
intolerant of sexual harassment and violence and respond to reported 
sexual assaults. Additionally, we have moved initial disposition 
authority for incidents of sexual assault to O-6 commanders or higher. 
I have also endorsed Secretary Hagel's proposed amendments to Article 
60 that remove a convening authority's ability to modify Court Martial 
findings or sentences for qualified offenses. To ensure compliance at 
all levels we are also instituting Sexual Assault Prevention and 
Response (SAPR) program compliance inspections and a range of nearly 
100 accountability measures in the 2013 SAPR Strategic Plan. These 
measures will ensure a multifaceted approach to accountability and, 
where commanders fail in their responsibilities, the Service Chiefs are 
resolute in their commitment to remove commanders for cause.
    General Odierno and Lieutenant General Chipman. The Army has 
relieved 57 commanders over the past 4 years for failures to establish 
a healthy command climate or leadership failures. The Army will 
continue to identify commanders who fail to establish climates that 
encourage reporting and eradicate retaliation and hold these commanders 
accountable. The Army intends to enhance our comprehensive set of 
checks and balances through the implementation of a Commanders Response 
Certification program. This program will ensure that all the actors in 
the system--commanders, judge advocates, investigators and other first 
responders--are complying with all requirements and mutually 
reinforcing duties and obligations. This program will provide objective 
and measurable evaluations that can be certified by senior commanders. 
Transparency and visibility, both for offender accountability and 
commander accountability, will be essential to restoring the trust that 
we have lost.
    Admiral Greenert. We recognize the foundation of our operational 
effectiveness is the trust and resiliency of our force. Two elements 
contribute to sustaining this trust-effective means to report incidents 
of sexual assault and holding leaders accountable for creating an 
environment that is safe and does not tolerate, condone or ignore 
sexist behaviors, sexual harassment and sexual assault.
    Commanding Officers are at the front line of creating command 
climates of dignity and respect that prevent sexual assaults, 
responding to sexual assaults when prevention fails, supporting victims 
and ensuring aggressive prosecution and accountability of offenders. We 
have mandatory reporting requirements for sexual assault through our 
Operational Report and Situation Report reporting procedures, where 
each command advises senior leadership of an event soon after it 
occurs. We also require all sexual assault allegations made through 
unrestricted reporting channels be referred to NCIS and investigated. I 
am unaware of any incident where a commander failed to report an 
incident up the chain of command and initiate an investigation based on 
an unrestricted report.
    Should a sailor not be comfortable making a report to their chain 
of command, restricted or unrestricted sexual assault reports can be 
made to personnel outside the victim's command and can be confidential, 
as desired by the victim. Restricted reports are kept confidential; an 
investigation is not initiated, and the command is notified only that 
an assault has occurred with no identifying information regarding the 
victim or suspect. Victims can make restricted reports to SARCs, VAs, 
medical personnel, or by contacting the DOD SafeHelpline by phone (877-
995-5247) or online (https://www.safehelpline.org/), 24 hours per day, 
7 days a week. Victims who make restricted reports will still receive 
medical treatment, including a Sexual Assault Forensic Examination, 
counseling services, victim advocacy support, chaplain support, and 
legal assistance as they desire. Victims may also go outside their 
command to local law enforcement, NCIS, an installation SARC or VA, 
medical personnel, a military attorney, or a chaplain to make an 
unrestricted report that will result in an investigation by NCIS. 
Unrestricted reports provide victims the same support services as 
restricted reports.
    As part of the Navy's accountability process, commanders are 
required to brief their Immediate Superior in Command and the first 
flag officer in their chain of command on each sexual assault incident 
occurring in their command. As part of that brief, commanders evaluate 
the command climate of the suspect's command, as well as the factors 
surrounding the sexual assault, such as location and environment 
surrounding the incident, demographics, and the role of alcohol. Means 
to prevent further incidents are discussed. Our Navy four-star flag 
officers reinforce accountability for command climate by reviewing 
these ``first flag'' reports each quarter. We are implementing the 
policies and actions from our successful sexual assault prevention 
program at Great Lakes Training Center across the Fleet. Early results 
suggest that these commander-led initiatives reduced the prevalence of 
sexual assault in each location through a tailored approach that 
combines elements such as safety and security measures, direct 
engagement with local business and civil authorities, and regulated 
liberty. Empowering our commanders while holding them accountable for 
identifying and implementing change, makes initiatives like these 
possible.
    Additionally, we have also directed that each commander's immediate 
superior will have full access to all command climate survey 
information for the commands under their purview. This will enable a 
full evaluation of commanders based on sailor assessments of their 
command climate.
    We relieve officers in command when they are deemed to create or 
sustain a poor command climate or commit misconduct, which can be 
reflective of or contribute to poor command climate. We publicly 
announce these reliefs and the reasons; since 2010 we have relieved 7 
commanding officers for poor command climate and another 39 for 
personal misconduct.
    Preventing and responding to sexual assault is not just a legal 
issue--it is a leadership issue. The performance, safety and climate of 
a unit begin and end with the commander. By virtue of experience, skill 
and training, our commanders are the best assessors of their people and 
are the key to implementing effective, permanent change in our 
military.
    General Welsh. We know why some of our airmen have not reported 
sexual assault in the past--our surveys tell us that lack of trust in 
the system is a serious factor that we have to address, but there are 
also many other factors that add into this issue.
    We are looking for fundamental ways to improve the prevention and 
response to combat sexual assault and improve the trust of our airmen 
in the current system. For example, we have just established a Sexual 
Assault Prevention and Response Office headed by a two-star general who 
reports directly to the Vice Chief of Staff of the Air Force. This 
Office will provide a multi-disciplinary approach to combat sexual 
assault and include highly-qualified civilian experts with significant 
experience in this area. Additionally, we have very promising initial 
results from our Special Victims' Counsel Program and believe it will 
play a significant role in improving trust and confidence in the 
ability for victims to get justice within our system and in return 
encourage additional reporting by victims of sexual assault.
    The statistical data provides a number of reasons that cause 
victims not to report, and we are pursuing lines of effort to address 
those concerns. From the 2012 Workplace & Gender Relations Survey of 
Active Duty Members, of the 67 percent of women who did not report, the 
reasons in 2012 were:

------------------------------------------------------------------------
                                                             Air Force
                 Reason                   DOD  (percent)     (percent)
------------------------------------------------------------------------
Did not want anyone to know.............             70              79
Felt uncomfortable making a report......             66              73
Did not think their report would be kept             51              NR
 confidential...........................
Did not think anything would be done....             50              NR
Thought they would be labeled a                      47              40
 troublemaker...........................
Were afraid of retaliation/reprisals                 47              NR
 from the person(s) who did it or from
 their friends..........................
Heard about negative experiences other               43             NR
 victims went through who reported their
 situation..............................
------------------------------------------------------------------------
NR = Not reportable due to low reliability as the number of responses
  were too low to provide a statistically relevant amount.

    Additionally, the Air Force contracted Gallup in 2010 to study the 
barriers to reporting and broke the data out by gender and type of 
criminal act to better target our efforts. The Air Force will conduct a 
follow-on survey in the fall of this year to evaluate against the 2010 
baseline. Table 12 from the Findings from the 2010 Prevalence/Incidence 
Survey of Sexual Assault in the Air Force are included below:
      


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    We expect our commanders to create a respectful and professional 
environment where every airman can maximize their potential to meet our 
mission requirements. When this does not occur, we hold commanders 
appropriately accountable, as we have done in the past and will 
continue to do so in the future. We do so utilizing a wide range of 
available administrative and disciplinary options.
    General Amos and Major General Ary. The Marine Corps fully supports 
the direction outlined in the Secretary of Defense memorandum dated 6 
May 2013. One specified task requires the acceleration of the 
assessment of the systems used to investigate, prosecute, and 
adjudicate sexual assaults, mandated under National Defense 
Authorization Act for Fiscal Year 2013. The Secretary of Defense memo 
also requires that: (1) a method be developed to incorporate the victim 
rights specified in the Crime Victims' Rights Act into military justice 
practice, and (2) that victims' counsel be improved, ensuring that 
victims are provided the advice and assistance they need to understand 
their rights and to feel confident in the military justice system.
    Marine Corps legal assistance attorneys received training on their 
role of providing legal assistance to victims of crime, with a focus on 
victims of sexual assault. Legal assistance services provided include 
consultation addressing: the Victim and Witness Assistance Program, 
including the rights and benefits afforded the victim; the differences 
between restricted and unrestricted reporting; the roles and 
responsibilities of trial counsel, defense counsel, and investigators 
in the military justice system; services available from appropriate 
agencies or offices for emotional and mental health counseling and 
other medical services; the availability of and protections offered by 
civilian and military protective orders; eligibility for and benefits 
potentially available as part of the transitional compensation program; 
and traditional forms of legal assistance.
    Marine prosecutors, paralegals and Naval Criminal Investigative 
Service investigators, along with full-time, professional, credentialed 
Sexual Assault Response Coordinators (SARC) and VAs, provide 
individualized support to inform and enable victims to participate in 
the military justice process. The Marine Corps is in the process of 
hiring 25 full-time credentialed SARCs and 22 full-time credentialed 
VAs to augment the over 70 SARCs and 955 uniformed and civilian VAs 
presently in the field.
    The fiscal year 2012 DOD Annual Report shows a 31 percent increase 
in sexual assault reports involving marines and indicates that this 
spike occurred largely in the second half of the year (April-September 
2012). This increase coincides with the Commandant's Heritage Brief 
Tour from April to August and the launch of the SAPR Campaign Plan in 
June. With sexual assault being a highly under-reported crime, this 
increase in reporting is a positive endorsement of our efforts to 
heighten awareness and to deepen the trust and confidence in the Marine 
Corps response system.
    New Command climate survey initiatives will supplement existing 
ones, to get after instilling an environment that is not non-permissive 
to misconduct and criminal behavior, therefore contributing to 
increased trust and confidence. Supplementing the survey provided 
within the first 90 days of a commander taking command, the Commandant 
has initiated a new requirement. Mandatory 30 days after assuming 
command and at the commanding officer's 12-month mark, this new survey 
will go up to the first General in the chain of command to hold 
commanders accountable for the climate they set. We believe that this 
tool will help commanders measure the health and well-being of their 
command and mitigate the high risk behaviors that tear at the fabric of 
the Corps.
    I do not think we should lose sight of the true goal of fostering a 
culture intolerant of sexual assault. While the increased reporting in 
2012 may indicate an increase in trust in the commander, the hope is 
that future reporting will decline as a result of a corresponding 
decline is sexual assaults. Therefore, it might not be appropriate to 
punish a commander merely for reporting numbers that hold steady, 
decline, or increase.
    To ensure that commanders are appropriately executing their solemn 
duties, in May 2013 the Commandant directed new Marine Corps-wide 
Command Climate surveys. Command climate is the single greatest 
indicator not only of combat readiness, but also of the spiritual 
health of that institution. Marines have a sacred obligation to take 
care of each other and it starts with the commander. Command climate is 
not simply a measure of how happy marines and sailors are in their 
workplace; it is an indicator of the good order and discipline and 
drives mission accomplishment.
    These new surveys are mandatory within 30 days of a commanding 
officer taking command and also at the commanding officer's 12-month 
mark in command. Giving commanding officers this tool and holding them 
accountable for the overall health and well-being of their command will 
help us mitigate the high-risk behaviors that tear at the fabric of the 
Corps. The results of the Command Climate surveys will be forwarded to 
the next higher headquarters in the chain of command. Senior commanders 
may relieve their subordinates of command if they lose trust and 
confidence in their subordinate's ability to lead the marines and 
sailors under their charge. In just the last 6 months, the Marine Corps 
has relieved three commanders based upon command climate concerns.
    Admiral Papp. [Deleted.]

    Chairman Levin. Senator Blunt.
    Senator Blunt. Thank you, Mr. Chairman.
    Thanks to all of you for your service and for being here.
    You don't get to this table that you all are at today 
without considerable skill in lots of areas--leadership, 
communication, lots of things. I am always impressed when you 
come and represent your Service and represent those who serve 
us and defend us.
    I did think, General Dempsey and Admiral Greenert, that 
your response to the question that Senator Shaheen asked was 
stunningly bad. The question was, have you talked to people, to 
Services that have been dealing with this for longer than we 
have?
    Admiral Greenert, you said thanks for the tip about 
Australia and Israel, which Israel would--and General Dempsey, 
you said you had just begun that process preparing for this 
hearing, which I thought was not--it is a good thing we had the 
hearing. But then in response to what Senator Gillibrand said, 
General Dempsey, you said you hadn't had time.
    So maybe I have heard this wrong. Has anybody who works for 
you been asking these people? This is not a tough management 
thing.
    Where do you go to find out how people have dealt with this 
before, and how could that possibly, Admiral Greenert, be a 
``tip'' from somebody on this committee to the principal 
manager of the U.S. Navy? I will let you answer that first and 
then General Dempsey.
    General Gross. Yes, Senator, thank you.
    As the legal counsel to General Dempsey, that is one of the 
areas I have looked into. I have done some research on the 
United Kingdom----
    Senator Blunt. I was going to ask Admiral Greenert, and 
then I will come to your----
    General Gross. Oh, oh.
    Senator Blunt. That will be good. If somebody is looking 
into this, I will feel better than I did a minute ago. I am 
hoping.
    Admiral Greenert. Well, Admiral DeRenzi tells me she, too, 
has had those conversations with our Navy, but I take that 
aboard as something that I should have done, Senator, and I 
didn't, although we have talked about it with my JAG.
    Senator Blunt. Well, now apparently you hadn't talked about 
it enough to know that she had talked to them about it, or you 
would have said that to Senator Shaheen. I am trying to be fair 
here. I know you have a difficult job. I admire what you do.
    But this has been going on now for years. Senator McCaskill 
has been, since the day she got here, trying to draw attention 
to this effort. You haven't been in this job all that time, but 
talking to people who have managed this problem longer than we 
have seems to me the very easiest place to start. The guy at 
the top should know that. The man or woman at the top should 
know that.
    Admiral Greenert. To be clear, Senator, I have talked about 
sexual assault in our navies with several of my counterparts. 
What I have not discussed is litigating and taking litigation 
or the process, if you will, of litigation outside of the chain 
of command. I have had numerous conversations with my 
counterparts.
    Senator Blunt. That is a helpful addition. General Dempsey? 
Do you want your attorney to answer?
    General Gross. Yes, Senators. As part of my duties, I have 
been looking into these matters. I mean, I even started 
thinking about it when I was in International Security 
Assistance Force and U.S. Forces Afghanistan back in 2009 and 
got a chance to learn about some of our allies' systems, to 
include Germany. Frankly, I heard some dissatisfaction with a 
criminal justice system that was completely bifurcated from the 
military chain of command.
    An individual who had made a decision that a commander with 
battlefield experience might not have seen as a violation of 
the rules of engagement and so forth, but it was handed over to 
civilian prosecutors with no military experience, no combat 
experience, to make decisions about whether or not it was 
appropriate for that individual in that particular case to call 
in fire on a position. So there was some dissatisfaction there.
    I have recently spoken with a British Judge Advocate. He 
sent me an article on the British system that I have been in 
the process of looking at, and some of my folks are as well.
    I know that the Service Judge Advocate, each Service Judge 
Advocate also has criminal law shops. Just from speaking to 
some of them, I know that they have considered Australia, the 
United Kingdom, Israel, and others that have looked at this as 
not necessarily as a solution to sexual assault, but as just a 
system for pulling all crimes out of the chain of command and 
into an independent, in some cases civilian prosecutor, in some 
cases court.
    Senator Blunt. I would think from a greater management 
point of view, in addition, and I think you are doing this--I 
hope you are doing this. But all of the thoughts we can get 
from other people dealing with this, or how do you stop it from 
happening? How do you minimize the chances you are going to 
have to deal with this at a litigated level by whatever you do 
in the culture of the command? What do you do to stop this from 
happening?
    If we find out they are doing no better than we are, that 
is something that we should know. But I think they, in many 
cases, dealt with this in the situations particularly we are 
going into now longer than we have--in combat and other 
situations.
    The question I am going to submit for the record, and I 
don't have time for everybody to answer it now, but among 
others, it will be is to each of the Service Chiefs, is the 
soldier, sailor, airman, marine, or coast guard person less 
fearful of being retaliated against for reporting instances of 
sexual harassment or assault than they were in the past?
    I may put a couple of qualifiers on how--than they were, 
say, 18 months ago, and how do you feel that the guidance that 
commanders are issuing is restoring the trust among members of 
the Service that we need to have?
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Blunt.
    That question for the record will be answered. Then would 
that be addressed to all of them, all the Chiefs?
    Senator Blunt. It will be to the Service Chiefs.
    Chairman Levin. All right, and to the chairman, I assume, 
as well, and all questions for the record that we have 
identified so far, kindly answer those promptly.
    Any other questions that are not referred to specifically 
today should be in to me so that we can pass them along no 
later than, let us say, by Thursday, so we can put some kind of 
a finite end to questions for the record.
    [The information referred to follows:]

    General Odierno and Lieutenant General Chipman. Data in the Army's 
2012 Human Relations Operational Troops Survey (OTS) showed some 
improvement over the 2009 OTS with regard to ``fear of retaliation'' 
after reporting a sexual assault. However, there is still much work to 
do to eliminate the fear of retaliation. The 2012 OTS showed we are 
making some progress in building a positive command climate in ensuring 
personnel are protected from retaliation.
    In 2012, approximately 16 percent of female enlisted soldiers and 
15 percent of male enlisted soldiers said it was likely/very likely 
that the reporting person's career would suffer; compared to 23 and 19 
percent in 2009. In 2012, approximately 16 percent of female enlisted 
soldiers and 14 percent of male enlisted soldiers said it was likely/
very likely that the reporting person would be labeled a troublemaker; 
compared to 26 percent and 2 percent in 2009.
    Admiral Greenert. We believe that our sailors have increased trust 
in the Navy and their leadership with regard to sexual assault. This is 
based on an increase we have seen in the number of sexual assault 
reports since fiscal year 2009. In fiscal year 2012, there were a total 
of 726 reports (527 unrestricted, 199 restricted) of sexual assault in 
the Navy. This is an increase over the average of 564 total reports per 
year from fiscal year 2009-fiscal year 2011. Additionally, through 2013 
we continue to receive reports of previous incidents--assaults that 
happened months to years prior to the date of report. Together, we view 
the increase in reporting and the fact that victims are reporting prior 
events an indicator of decreased barriers to reporting. Further, we 
believe these trends indicate sailors increasingly trust the reporting 
process and the ability of the command to support them as victims.
    We address the issue of retaliation and other barriers to reporting 
in our training and messaging to the force. Every sailor's 
understanding of the sexual assault reporting process, as well as the 
consequences for retaliation, has been raised through continuous 
awareness and outreach, including key initiatives such Sexual Assault 
Awareness Month, the interactive Sexual Assault Prevention and 
Response-Leaders (SAPR-L) and Sexual Assault Prevention and Response-
Fleet (SAPR-F) training, and the recent DOD-wide Sexual Assault Stand-
down.
    We will continue to closely monitor the impact of barriers to 
reporting, and specifically retaliation, through future DOD and Navy 
surveys.
    General Welsh. The Air Force continues to strive for Sexual Assault 
Prevention and Response (SAPR) and Equal Opportunity (EO) programs that 
remove barriers to reporting incidents of assault or harassment, 
especially fear of reprisal or retaliation. The Air Force will conduct 
a follow-on survey in fiscal year 2014 to evaluate our progress against 
the 2010 Prevalence/Incidence Survey of Sexual Assault in the Air Force 
baseline. We believe the findings from this survey will provide us the 
data we need to measure our progress in the areas covered by the 2010 
survey. Both programs have significantly improved educational efforts 
so all Airmen understand they should immediately notify EO, Sexual 
Assault Response Coordinators, or Victim Advocates if they feel they 
are being retaliated against for making a report. Additionally, every 
new member of the Air Force receives accession training upon initial 
entry on SAPR and EO reporting options, procedures and victim rights. 
Training on both programs is further re-emphasized at all levels of 
leadership and professional development. Our airmen can also utilize 
the Inspector General office, which is an alternate reporting option 
free from any chain of command involvement. Finally, reprisal or any 
other form of retaliation is not tolerated in any Air Force 
organization and victim privacy is the foundation of all existing 
programs.
    General Amos and Major General Ary. Sexual assault is a field that 
is replete with deeply held myths that our training programs are 
designed to dispel. Myths are often centered around victim blaming and 
used as motives for reprisals. All of our efforts are focused on 
changing our culture, educating marines about sexual assault, and 
eliminating victim-blaming myths. which are contributing factors to 
this problem.
    We purposefully survey our marines to use their input to move 
forward. Survey results help shape future initiatives, as we move 
forward. As our SAPR Campaign Plan continues to unfold and its many 
training initiatives are implemented, we anticipate that the survey 
will show continued improvements. Since the Campaign Plan's launch, our 
training efforts have included: the SAPR General Officers Symposium, 
SAPR training at the Sergeants Major Symposium, Command Team Training, 
``Take A Stand'' bystander intervention training for noncommissioned 
officers, and all hands training for all marines. To continue our 
emphasis on leadership engagement, we updated our SAPR training course 
for prospective commanders and senior enlisted leaders to meet all core 
competencies and set learning objectives as defined by the Office of 
the Secretary of Defense. We have also implemented SAPR training 
programs customized for the Delayed Entry Programs, Recruit Depots, 
Entry-Level Training, Professional Military Education (PME), Officer 
PME, and Pre-Deployment Environments.
    Also designed to protect victims from reprisal are Expedited 
Transfer Requests, implemented in February 2012, an option made 
available to victims to help empower and inform their decisions. 
Victims who file unrestricted reports can request a transfer and will 
receive a decision within 72 hours. Additionally, victims who remain 
reluctant to come forward have the option to file a restricted report. 
This option allows victims to confidentially disclose the assault to 
specified individuals (i.e., SARCs, VAs/UVAs, or health care personnel) 
and receive medical treatment and counseling, without the involvement 
of law enforcement or command.
    The Marine Corps does not take reprisal lightly and our training 
programs are designed to reduce stigma and increase confidence in 
reporting. The 31 percent increase in reporting from fiscal year 2011 
to fiscal year 2012 is a positive endorsement of these and other SAPR 
initiatives designed to reduce stigma and to encourage victims to come 
forward.
    Admiral Papp. [Deleted.]

    Chairman Levin. Senator Blumenthal?
    Senator Blumenthal. Thank you, Mr. Chairman.
    I want to join in expressing appreciation to you for being 
here today. I know this moment is a challenging and difficult 
and even a painful one because you share our view that the 
crime of sexual assault sullies the good name and honor of the 
greatest military in the history of the world. Each of you has 
given your lives, your professional and your personal life, to 
serving that military, and many under your command have 
literally given their lives under your command to serve that 
military and to keep faith and to maintain the trust that we 
all agree is at the core of the great service that you perform.
    I have no question, having spoken to you before today and 
many under your command, that they share your determination to 
root out this cancer and to do what the civilian world has, in 
many instances, failed to do, which is improve our justice 
system there. I think that the military has a great opportunity 
to teach some lessons to the civilian world, just as you did on 
the issue of race relations and desegregation, which General 
Amos has alluded to.
    I know something about prosecuting because I did it for a 
number of years, and I know that it is very, very difficult to 
make the kind of judgments about whether to charge someone with 
a crime. It is the most difficult part of being a prosecutor 
because you know in charging someone, with many crimes, you are 
going to ruin that person's life forever, whether there is a 
conviction or not. The kind of factors and issues to be 
considered are what kept me awake at night.
    I have supported making those decisions by someone who is 
trained and experienced and has the responsibility exclusively 
not only for making the decisions, but then trying the case. I 
welcome General Dempsey's suggestion that we need to have 
checks and balances, a constellation of checks and balances. I 
welcome General Odierno's suggestion in his testimony that we 
need to take a hard look at the present system.
    What I would suggest to you, very respectfully, is that 
decisions about prosecuting are as difficult and demanding and 
challenging as some of the decisions that you make about the 
expertise that is within your training, and the military would 
be well served by having those decisions made by someone who is 
perhaps not completely outside the chain of command, but at 
least within it, and not maybe a Judge Advocate, who is, again, 
not necessarily trained in this function, but someone who does 
have that role exclusively so that he or she can bring to bear 
that expertise and experience.
    Reporting is the key factor here, and I am encouraged by 
some of the numbers that we have heard, the 31 percent in the 
Marine Corps, which I think is a basis for hope or optimism. 
But reporting will not occur in greater numbers unless we do 
refine, to take the word of the day, refine the present system.
    I have suggested in legislation I proposed that victims be 
given restitution out of a compensation fund as an incentive to 
come forward, but also a means of making them whole. Let me ask 
all of you, considering that someone can get restitution as a 
victim for having a car robbed, isn't it appropriate for 
restitution to go to a victim or survivor of sexual assault?
    General Dempsey?
    General Dempsey. Well, as I said in my opening statement, 
Senator, I have been attentive to all of the legislative 
proposals. I am hopeful that as part of the 576 panel that that 
issue of restitution would come up. But I am not prepared to 
give you an answer on it today because I don't understand--by 
the way, Australia has done that in some ways successfully, in 
some ways unsuccessfully, and I am still trying to learn the 
lessons of our allies in that regard.
    I don't have a view on it today, but I understand it.
    Senator Blumenthal. I assume you would agree, from what you 
have said, that mandating a punitive discharge for a convicted 
sexual offender would be something you would support, another 
measure that I have proposed?
    General Dempsey. Yes, I have actually said that automatic 
discharge for convicted felony offenses, particularly in the 
case that we are discussing, sexual assault, is an idea that I 
would align myself with.
    Senator Blumenthal. What about the idea of some bill of 
rights that is incorporated in the UCMJ, a bill of rights for 
victims or survivors? Is that something that would seem to 
serve the purpose of eliciting more reporting?
    General Dempsey. Yes. I believe it is. The only one we have 
actually put forward our military advice on collectively at 
this point is the Article 60 change. These others we would hope 
to put forward as part of the outcome of the 576 panel.
    Senator Blumenthal. Including, for example, a right against 
repeated interrogation without some kind of counsel being 
present, a right against inordinate delay, a right to be 
present in a proceeding, the right to speak at the proceeding 
if credibility or past sexual history is raised, to set the 
record straight. Those kinds of rights are basic to fairness 
and to trust, it seems to me.
    Finally, some kind of ombudsman or authority within DOD 
that would be a source of action in the event there were a 
miscarriage of the justice system. Would you support that kind 
of change as well?
    General Dempsey. Well, again, Senator, I am not trying to 
avoid your question, but I am suggesting to you that I have 
said that we will consider any of the options presented by 26 
pieces of legislation, by the way, through the 576 process.
    Senator Blumenthal. Let me just close, and I appreciate 
being given this opportunity to question. One of the most 
impressive and startling facts at this hearing was the 
suggestion by--the testimony from General Amos and General 
Odierno that they actually went ahead to prosecute despite the 
recommendations to the contrary in many cases from their Judge 
Advocate, which I think indicates the passion and zeal that 
needs to be brought to this problem by the commanding officers.
    I am confident that if that kind of zeal and passion are 
brought to decision to charge, it will change this, the command 
climate, and eliminate this cancer from the military system.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Blumenthal.
    Before I call on Senator Ayotte, we are going to--after 
this panel is completed, we are going to move directly to the 
next panel, and we are not going to be stopping for lunch today 
at all. We are going to work right through the lunch hour. That 
is good news I wanted to deliver as early as possible.
    Senator Ayotte.
    Senator Ayotte. Thank you, Mr. Chairman.
    I want to thank all of our witnesses who are here today for 
their service and leadership to our country.
    There are a few questions that I feel, number one, have not 
been answered. Senator Graham asked, touched upon it. General 
Dempsey, Senator Gillibrand touched upon it. But I think it is 
a very important question, and if you can't answer it today, 
then I think it needs to be taken for the record.
    That is why is it that you support the changes to Article 
60, and yet when it comes to the disposition authority for 
crimes of sexual assault that you believe that it would 
undermine the chain of command to make those changes or some 
changes to the disposition authority? I have not heard a clear 
answer on that today.
    I am asking as someone who believes this is something we 
need answered. As a panel, we have our markup next week. We 
have all these pieces of legislation, and I think this is an 
important threshold issue that we have to address.
    If you would like to take that for the record, I would like 
a clear answer so we can understand what the differences are 
between what I think has already been described and can be 
viewed very much as an inconsistent position on one end with 
the chain of command versus the disposition authority. I would 
appreciate your response to that.
    I am not asking for it today. I just think it would be 
important for us in this markup to have a full understanding of 
what you think about that.
    Then I wanted to ask----
    Chairman Levin. Is that addressed to each of the chiefs?
    Senator Ayotte. I think it would be appropriate, Mr. 
Chairman.
    Chairman Levin. It is. I think that it has been asked 
today, and whether it has been answered fully or clearly, we 
will leave up to each member here to decide.
    However, it is an important question, and it goes to the 
heart of the matter. We are asking each of the Chiefs, and the 
chairman, to give us your response to that question no later 
than this Friday--given the fact that markup is next week.
    [The information referred to follows:]

    General Dempsey. While I support the proposed reforms of Article 
60, I do not support removing commanders from their role as initial 
disposition authorities in the military justice process. Commanders' 
decisions regarding the initial disposition of offenses are central to 
their role and responsibility to maintain the good order and discipline 
of their units and the individuals they command.
    Article 60 of the Uniform Code of Military Justice (UCMJ) currently 
grants broad authority and discretion to convening authorities to 
dismiss findings of guilt after trial. That authority, which dates back 
well over 200 years, was necessary when the military justice system 
lacked many of the procedural safeguards inherent in the system today. 
In the past, the military justice system lacked attorneys serving as 
trial and defense counsel, independent trial judges, and an appellate 
process. Article 60 was necessary then so that commanders, with the 
advice of their staff judge advocates, could ensure the proceedings, in 
particular the findings, were fair and just. Many changes to the 
military justice system, which began with the Military Justice 
Improvement Act of 1968, now provide the necessary due process and 
safeguards. Licensed military attorneys now serve as prosecutors and 
defense counsel, independent military judges preside over courts-
martial, and convicted servicemembers are entitled to a robust 
appellate process. Due to these changes, there is little or no need for 
a convening authority to dismiss the findings after a panel (jury) has 
found the accused guilty, except in those cases where the panel has 
found the accused not guilty of the major offenses and guilty only of 
minor offenses which, in and of themselves, would not justify court-
martial in the first place. As I testified, prudent and deliberate 
refinements to the UCMJ, after careful study, are necessary to keep the 
military justice system vibrant and relevant, and the system needs 
certain checks and balances to protect the rights of the accused, the 
rights of victims, and the interests of justice. This proposed change 
to Article 60 is one of those sensible refinements.
    The same cannot be said for eliminating the commander from making 
initial disposition decisions. While I support raising the initial 
disposition authority to higher level commanders in sexual assault 
cases, as the Secretary of Defense did in April 2012, I do not support 
removing commanders from that decision entirely. The authority and 
responsibility for a commander to hold his subordinates accountable for 
criminal activity, violations of orders, and dereliction of duty goes 
to the heart of good order and discipline.
    General Odierno and Lieutenant General Chipman. The Army supports 
the Secretary of Defense's revisions to Art. 60, which preserve the 
current practical uses of post-trial convening authority to set aside 
minor offenses and reduce sentences. The convening authority's ability 
to reduce a sentence based on the interests of justice is unchanged by 
the DOD proposal. The Army supports these amendments because of changes 
in our practice. Article 60 was part of the original code passed in 
1950 and was not amended during the first major revision in 1968. At 
that time, the Services had not established the independent trial 
judiciary and independent defense bar. Line officers, not Judge 
Advocates, were assigned as judges, trial counsel and defense counsel. 
The intent of Article 60 was to allow the convening authority to grant 
clemency if the accused Soldier had not received a fair trial or if the 
court-martial adjudged an overly harsh sentence. These justifications 
do not support the current authority as it pertains to findings under 
Art. 60 given the current state of our practice.
    The Army does not support removal of the commander from the 
disposition decision because the justification for this authority has 
not changed. The commander's ability to punish offenses quickly, 
visibly and locally is central to the authority of the commander and 
the responsibility of commanders for all that goes on in the unit.
    In addition, there are several practical concerns with removing the 
commander from the initial phases of courts-martial. Commanders are 
integrated into every aspect of their soldiers' lives and would remain 
responsible for vitally important ancillary aspects of both victim care 
and victim protection (where the victim is a soldier) as well as 
control over the accused. Even if the commander were removed from pre-
trial disposition decisions, the commander would remain responsible for 
determining whether an accused should be placed in pretrial confinement 
or whether other conditions on liberty are appropriate, such as a 
military protective order. The commander would also discipline the 
soldier in the event he violates the military protective order. Because 
we are deployed globally, the military commander is frequently the only 
authority who can order such actions. Additionally, more senior 
commanders in the accused or victim's chain of command are vested with 
authority to process a transfer request for the victim, to appoint 
sanity boards and to authorize the assistance of expert witnesses. The 
commander's responsibility to care for the victim while managing the 
accused is inextricably linked with his responsibilities as a 
disposition authority, and removing this important aspect of command 
authority will have significant ramifications.
    Admiral Greenert. I support amending Article 60 regarding the 
commander's post trial authorities while retaining disposition 
authority with the commander as presently constituted. These positions 
are not inconsistent, because they pertain to two entirely different 
functions in the military justice process. A commander's disposition 
authority pertains to pretrial responsibilities and the ability to 
direct appropriate disciplinary action to support good order and 
discipline; Article 60 pertains to post-trial actions, where a 
disposition determination supporting good order and discipline is 
complete and post-trial review and appeal processes are adequate to 
ensure the effective administration of justice.
    The responsibility, authority, and accountability we repose in 
commanders for mission accomplishment--including successfully leading 
U.S. servicemembers in combat--require that they play a central role in 
the military justice system, with the authority to hold perpetrators of 
all offenses appropriately accountable. The experience and perspective 
a military commander brings to bear, augmented by the advice of 
experienced military lawyers, allow for the proper balancing of mission 
accomplishment, the rights of the victim, the rights of the accused, 
and the interests of justice to reach an appropriate disposition 
decision.
    We have taken significant steps to ensure that allegations of rape, 
sexual assault, forcible sodomy and attempts to commit those offenses 
are forwarded to experienced senior commanders for disposition 
determinations; these commanders are required to consult with their 
experienced staff judge advocates and/or prosecutors in every case 
before making a disposition decision. Commanders who serve as Sexual 
Assault Initial Disposition Authorities are 0-6 or senior ranking 
officers who have special court-martial convening authority.
    Post-trial actions are different from the initial disposition of a 
case. The Navy fully supports DOD's legislative proposal to amend 
Article 60 removing the authority of commanders to set aside the 
findings of a court-martial except for certain qualified offenses as 
defined in the DOD proposal and requiring convening authorities to 
explain, in writing, any action to modify a court martial sentence or 
qualified offense findings. The DOD proposal recognizes that court-
martial practice has changed since World War II through the 
participation of professional military prosecutors, defense counsel, 
and judges, and the inclusion of a comprehensive review and appeal 
process. Post-trial appeal and review processes under Articles 64, 66, 
and 69 of the UCMJ occur after court-martial proceedings. Article 66 
reviews apply to cases in which a punitive discharge or sentence of 
confinement for 1 year or more was approved; those convicted are 
assigned appellate defense counsel, and cases on appeal are decided by 
senior judge advocates serving as Navy and Marine Corps Court of 
Criminal Appeals appellate judges or by civilian judges of the U.S. 
Court of Appeals for the Armed Forces. Article 69 reviews apply to 
general courts-martial where a punitive discharge or confinement for 1 
year or more was not approved; the records of trial are reviewed by the 
Office of the Judge Advocate General. Article 64 reviews are conducted 
for all other courts-martial cases and are submitted to a judge 
advocate who must respond to any allegation of error made by the 
accused.
    Because court-martial convictions are now subject to these 
processes (obviating the need for a substantive review by the convening 
authority), the Navy supports the DOD proposal to amend Article 60 of 
the UCMJ.
    General Welsh. Airmen must very clearly understand who will hold 
them accountable, both for mission execution and for meeting personal 
and professional standards. They expect that to be their commander. Our 
entire military system is based on commanders having that authority and 
responsibility. In general, it has served us remarkably well in both 
peacetime and conflict for a very long time. I believe we should be 
very deliberate as we consider significant changes to that authority. 
The ``576 Panel'' gives us the opportunity to do that.
    Article 60 addresses the convening authority's responsibilities at 
the completion of a court martial; the disposition decision has already 
been made and findings have been issued by the court. Article 60's 
post-trial authority developed at a time when the armed forces did not 
have a robust appellate court system. Each Military Service now has its 
own Court of Criminal Appeals. Every case tried at a military court-
martial is eligible for review by the Court of Criminal Appeals under 
either Article 66 or Article 69 of the Uniform Code of Military 
Justice. Cases with a sentence that includes a punitive discharge or a 
year or more of confinement receive a compulsory appellate review. I 
believe that Article 60 authorities can, and probably should, be 
updated to reflect today's more modern military judicial system.
    The Article 60 modification proposed by the Secretary of Defense 
would prohibit a convening authority from setting aside the findings of 
a court-martial except for a narrow group of qualified offenses. 
Convening authorities would still retain their authority to execute 
pretrial agreements and safeguard the interests of the command by 
taking action on the sentence alone. Again, improvements in the 
military judicial system and our robust appellate process provide the 
rationale for my support of this Article 60 modification-not any loss 
of confidence in our convening authorities. Secretary Donley and I are 
committed to preserving the authority and responsibility of commanders 
to promote good order and discipline within their units, while 
simultaneously advancing victim support and protecting the due process 
rights of the accused.
    General Amos. A commander's pre-trial and post-trial court-martial 
roles involve separate and distinct authorities that should not be 
linked together. A commander's pre-trial disposition authority is an 
enforcement mechanism that reinforces the commander's authority as the 
individual who sets and maintains standards of conduct in a unit. A 
commander's post-trial role, in addition to continuing to serve as a 
mechanism to enforce a court-martial sentence, also includes a clemency 
function that when exercised, provides some sort of relief to an 
accused. The two roles can therefore serve completely opposite 
functions. While at one time there was a need for both functions, the 
military justice system has evolved substantially since its inception, 
to the point where the broad clemency power under Article 60 is no 
longer necessary, even though the enforcement portion of the Article 60 
is still needed.
    The commander's broad authority under Article 60 was established 
during a time when the key participants of the trial--the prosecutors, 
defense counsel, and military judges--were not professional lawyers, 
and when there was not a comprehensive system of appellate review. The 
complete discretion of the commander under that system prevented 
miscarriages of justice, provided for the expedient correction of legal 
errors, and permitted the granting of clemency in certain cases. The 
professionalization of court-martial practice and the addition of 
multiple layers of appellate review justify reducing the commander's 
once unlimited authority to take action on the findings in cases not 
involving ``minor offenses.'' The Secretary of Defense's proposal 
retains the proper amount of clemency authority necessary to maintain 
good order and discipline and properly excludes the right class of 
cases that should be left to the appellate review process for the 
correction of legal error and/or clemency. Additionally, the 
requirement for a written explanation for any Article 60 action (on the 
findings of a ``minor offense'' and/or the sentence of a court-martial) 
ensures transparency and will preserve the trust and confidence 
servicemembers and the public have in our military justice system. 
Lastly, it preserves the ability of a commander to take action on a 
sentence under Article 60, which serves as the authority for that 
commander to reduce an adjudged sentence in accordance with a pre-trial 
agreement.
    Unlike the historical changes involving the conduct of a court-
martial and the post-trial processing of that court-martial, the 
general role of the commander has not changed since the inception of 
the UCMJ. The military still needs a system of deployable military 
justice that provides swift and appropriate justice for the entire 
spectrum of misconduct. This will never change. As long as there is a 
military, there will be a chain of command. As long as there is a chain 
of command, there will be a commander responsible for everything that 
the unit does and fails to do. This responsibility cannot be 
overstated. Command is a central pillar of military culture. When a 
unit enters combat, success will be directly related to a commander's 
ability to enforce his or her orders and standards. Commanders are 
charged with building and leading their team to withstand the rigors of 
combat by establishing the highest levels of trust throughout their 
unit. Virtually every facet of Marine life underscores the authority 
and centrality of the commander, to ensure that when those critical 
moments come there is no hesitation among the marines he or she leads. 
This is a cornerstone of combat effectiveness, which is the core 
mission and central organizing principle of every Military Service. In 
a very real sense, the Nation's security depends on the strength and 
trust in the relationship between the commander and those he or she 
leads.
    This trust can only be built and maintained when marines know that 
commanders have the authority to hold accountable marines who violate 
that trust. Marines must know that their commander sent a marine to 
court-martial, not an unknown third-party prosecutor, who plays no 
daily role in developing and maintaining the bond of trust essential to 
combat effectiveness.
    The modification of Article 60 is about the reduced need for a 
commander to make certain clemency decisions in the post-trial process. 
Because the commander's need to make enforcement decisions has not 
changed, the commander's authority to make those enforcement decisions 
under the Uniform Code of Military Justice should also not change.
    Admiral Papp. The Coast Guard does not support removing the 
commander from the role of initial disposition authority because he or 
she is responsible for mission accomplishment and instilling good order 
and discipline in the unit. For that reason, the commander's role in 
deciding whether and how to dispose of charges is vital to the 
effectiveness of the military justice system and the military as a 
whole. Judge advocates are critical to the effective and fair 
application of the modem military justice system, but the discipline of 
military personnel is primarily the responsibility of commanders. A 
commander's exercise of initial disposition authority is apparent to 
subordinate military members, reinforces their appreciation of the 
authority of the commander, and thereby reinforces discipline. 
Moreover, to make a commander who is held absolutely responsible for 
mission execution, crew safety, and unit discipline, and not provide 
the commander the authority over military justice matters may place the 
commander at a disadvantage by maintaining his accountability but 
denying him the authority to ensure discipline.
    Significantly, the vast majority of officers who have the authority 
under Article 22 to make an initial disposition on allegations of 
sexual offenses in the Coast Guard are flag officers. In June 2012, the 
Commandant of the Coast Guard withheld initial disposition authority 
for allegations of sexual offenses to those special courts-martial 
convening authorities who have achieved the rank of 0-6 (Captain) and 
have an assigned staff judge advocate. While many special courts-
martial convening authorities are of the 0-6 pay grade, only 13 have an 
assigned staff judge advocate. Even when the 0-6 has the authority to 
dispose of an allegation of a sexual offense, the Flag Officer above 
the 0-6 still has the authority to withhold disposition to his or her 
level. As a result, most sex crime cases are disposed of at the Flag 
level.
    Initial disposition authority under Article 30 and the exercise of 
convening authority under Article 22 are different than the authority a 
commander exercises under Article 60. A commander's exercise of 
discretion in granting clemency under Article 60 arguably has a 
negligible effect on good order and discipline. Moreover, the 
historical justification for post-trial clemency authorities has abated 
with the introduction of professional judges, a highly competent 
defense bar, and an appellate process of review.

    Senator Ayotte. Thank you, Mr. Chairman. I appreciate it.
    I know, General Welsh, that you were asked earlier about 
the Air Force Special Victims' Counsel Pilot Program. Senator 
Murray and I, we have a bill Combating Military Sexual Assault 
Act of 2013. It has 33 co-sponsors. As I understand it, you 
said that the response has been very, very positive in the Air 
Force to this program?
    General Welsh. Yes, Senator. Overwhelmingly positive.
    Senator Ayotte. Overwhelmingly positive.
    General Welsh. Yes, ma'am.
    Senator Ayotte. In other words, victims feel that they have 
the support of the system, which has been--when I look at your 
survey, that is one of the issues that comes loud and clear 
when you have people who are reporting saying 43 percent heard 
about negative experiences of other victims that went through 
that reported their situation.
    General Dempsey, I would like to ask you what your position 
is on our legislation in terms of giving this special victims' 
counsel not only to those in the Air Force victims, but in 
every branch of our military?
    General Dempsey. Yes, Senator, thanks.
    We have discussed that as chiefs, and there is a 
distinction between special victims capabilities and special 
victims advocacy that we are trying to work through and 
understand the resource implications. But we are very much in 
agreement that we need to do more for the victims.
    Senator Ayotte. Okay, General. I also would appreciate if 
you are able to give us--I know that you are talking about it 
at a command level with the Secretary, but as we go into the 
markup next week, it would be very helpful to know.
    Because this piece of legislation does have 33 cosponsors 
in the Senate, I want to make sure that every victim of sexual 
assault gets the support that they need in the system to make 
sure that people--we turn this around in terms of people who 
are not coming forward because they fear how they are going to 
be treated in this system.
    I think knowing that there is a representative that 
represents them and will represent their rights and respect 
their rights within the system, I think, is very important. I 
would appreciate any follow-up you have on that with your 
meetings within.
    [The information referred to follows:]

    General Dempsey. The Air Force Special Victims Counsel (SVC) pilot 
program, while very new, has shown positive results and provides a 
robust support program for victims of sexual assault. Hundreds of 
victims have availed themselves of SVC services in the Air Force in 
just the past several months since it was implemented. Many of those 
victims who initially filed restricted reports of sexual assault 
decided to change their report to unrestricted, allowing full 
investigation of the offenses committed by their assailant. As the 
early reports have been so promising, I expressed in my May 20, 2013, 
letters to Senators Levin and Inhofe that the proposed SVC legislation 
had merit. I support providing victims of sexual assault this important 
resource.
    General Odierno and Lieutenant General Chipman. The Army is 
monitoring the Air Force's special victim counsel pilot program and 
recognizes the value of all efforts that enhance victim care and 
satisfactions. The Army is engaged in hiring several hundred victim 
advocates as directed by law. We are also training our legal assistance 
attorneys and victim-witness liaisons to better advocate on behalf of 
victims. The Army has 300 legal assistance attorneys currently 
assisting and advocating for victims within a confidential attorney-
client relationship.
    I am confident that the Army's approach of a Special Victim 
Capability with specially selected and trained prosecutors, 
investigators and victim witness personnel working as a coordinated 
team, not in an adversarial relationship with a separate attorney, is 
the best opportunity for effective, sustainable victim care without 
undercutting accountability. The relationship between the prosecutor 
and the victim is the bedrock of every case and I am hesitant to place 
a wedge between them.
    Admiral Greenert. The Navy's legal professionals provide support to 
sexual assault victims. Navy prosecutors explain to victims their 
rights; the court-martial process; and available Federal, State, or 
local victim services and compensation. In addition, the Navy has 
trained more than 150 attorneys, paralegals, and enlisted personnel to 
provide legal assistance to crime victims in order to ensure victims' 
rights are understood and protected. Active-duty and dependent victims 
are eligible for military legal assistance services and are directed by 
Sexual Assault Response Coordinators and Victim Advocates or 
prosecutors to legal assistance attorneys to receive help pertaining to 
victims' rights, understanding the court-martial process, and a wide 
variety of legal issues related to being the victim of a crime.
    I believe it is premature to commit to the full scope of the Air 
Force Special Victim's Counsel pilot program at this time, particularly 
given that in-court representation of victims has triggered judicial 
challenges. The first such challenge is currently pending before the 
United States Court of Appeals for the Armed Forces. The outcome of the 
judicial challenges, and assessment of the issue by the Response 
Systems Panel created by section 576 of the National Defense 
Authorization Act for Fiscal Year 2013, will help determine the 
feasibility of in-court representation of victims.
    While such assessment is pending, I support a program that provides 
victims with the legal support judge advocates are uniquely qualified 
to provide, including: legal consultation regarding victims' rights; 
the military justice process; potential criminal liability of the 
victim; potential civil litigation; and legal assistance in personal 
civil legal matters.
    General Amos. The Marine Corps agrees with prohibiting sexual 
contact between trainers and trainees, and would also support extending 
that prohibition to recruiters and those honorable Americans seeking to 
enter the Marine Corps. Sexual activity between these classes of 
individuals is shameful and violates the trust and esprit de corps that 
makes the Marine Corps what it is.
    Marine commanders currently possess sufficient charging options to 
punish this unacceptable behavior. Marine Corps regulations at our 
Recruit Depots, where we train approximately 38,000 new marines each 
year, provide strict guidance prohibiting any form of social or 
personal relationship between drill instructors and recruits. Sexual 
activity between a drill instructor and a recruit would clearly violate 
this order under Article 92 of the UCMJ. Additionally, a drill 
instructor would violate Article 120 when he or she used their position 
of authority to coerce or threaten a recruit with some sort of wrongful 
action in order to get the recruit to engage in sexual activity. This 
type of abuse of authority justifies elevating criminal liability from 
an orders violation to a non-consensual sex crime and registration as a 
sex offender.
    The Marine Corps believes this proposal should be first studied by 
the Section 576 Response Systems Panel (RSP) to ensure the strict 
liability nature of the crime would not create unintended second- and 
third-order effects.
    Admiral Papp. The Coast Guard supports providing comprehensive 
legal services to victims of sexual assault, and we recognize the value 
of designated Special Victims Counsel. As such, we are currently 
developing an SVC program to ensure that victims of sexual assault are 
provided the advice and assistance they need to understand their rights 
and to feel empowered in the military justice system. In this effort, 
the Coast Guard continues to closely monitor the changes and 
enhancements to the Air Force's SVC program to assess and potentially 
adopt best practices.
    The Coast Guard would have no objection to legislation as long as 
it vests in the Secretary concerned a degree of latitude in 
implementation. The Coast Guard ensures currently that a cadre of 
specially trained and designated personnel provides services to sexual 
assault victims: Criminal Investigators, Victim Advocates, Sexual 
Assault Response Coordinators or Employee Assistance Program 
Coordinators, Health Care Providers, Family Advocacy Specialists, Trial 
Counsel, Physical Disability Attorneys, and Legal Assistance Attorneys. 
These specially trained personnel provide a host of complementary and 
integrated services, including consultation between restricted and 
unrestricted reporting, education about victim-witness assistance 
programs, explanation of the military justice system, advisement of the 
availability of health and mental health services, offers to assist 
with any personal civil legal matters, and information about post-
service benefit programs. Affording survivors of sexual assault access 
to special victim counsel would potentially supplement these services.
    The Coast Guard notes that, as a general matter, statutory 
requirements may not always take into account the disparity in the 
size, organizational structure, and geographic location of units within 
and among the services. Given geographic dispersion, structure, and 
missions of the Coast Guard, absent additional funding, existing Coast 
Guard legal resources may not be sufficient to allow special victim 
counsel to carry out all of the duties identified in the current draft 
language, which include accompanying and representing victims during 
interviews with investigative services, at Article 32 hearings, and at 
any court-martial proceedings. At the same time, some functions 
contemplated for special victim counsel may potentially duplicate some 
of the already available services performed by Victim Advocates.
    The Coast Guard therefore recommends legislation provide the 
Secretary concerned with a degree of flexibility in implementation and/
or execution, by foregoing prescriptive requirements and duties, and by 
allowing the flexibility to allocate functions appropriate to their 
training and expertise among special victim counsel and other members 
of the cadre of specially trained and designated personnel who provide 
services to sexual assault victims. This approach would preserve and 
help to realize the apparent intent to prescribe a vibrant special 
victim counsel program that would provide valuable assistance to 
survivors of sexual assaults.
    The Coast Guard understands that the Defense Department recommends 
deferring legislation mandating special victim counsel pending 
completion of the Air Force pilot program and assessment by the section 
576 panel. The Coast Guard concurs with that recommendation.

    Senator Ayotte. I also wanted to ask in our legislation, 
one of the incidents that we have been--when we talk about 
incidents that we are all troubled by, one of them has happened 
at Lackland, where you have 43 female trainees alleged to have 
been victimized by their military training instructors. 
Seventeen instructors were accused of offenses ranging from 
improper relationship all the way to rape.
    One of the components of the legislation that Senator 
Murray and I have introduced actually prohibits sexual contact 
between instructors and trainees while the training is going on 
and within 30 days of the completion of basic training. I think 
all of you, as leaders of the military, appreciate that there 
certainly is a vulnerability to those who are in a training 
setting with those who are the commanders there and the people 
that they are reporting to that are training them.
    General Dempsey, when I saw your written response to that 
piece of the legislation, I was troubled by the fact that there 
wasn't an endorsement of that. I need to understand where do 
you stand on the notion of prohibiting sexual contact between 
instructors and trainees during basic training?
    General Dempsey. We have spoken about special protections 
for, for example, cadets in basic training. But we find 
ourselves at a little bit on the horns of a dilemma. We have 
the 576 process that the Secretary of Defense has been 
chartered to go through, and we haven't had a chance, frankly, 
to speak with him about any of these in particular, which is 
why I have said on a couple of occasions now that, personally, 
I think some of these issues have real merit and potential, but 
I have to also be true to the legislation and the panel that 
will try to see this thing holistically.
    I am not trying to avoid the question, Senator. But I am 
trying to make sure that I have the opportunity with the 
Secretary to bring it into context.
    Senator Ayotte. My time is up, and I just think it would be 
hard to justify not supporting what seems to be basic common 
sense when you have incidents like Lackland. Just the 
relationship between a trainee in a basic training setting and 
the individuals who have command over them, who are training 
them, that there should not be sexual contact there because 
that, obviously, can lead to issues of coercion.
    I hope that that would be something that would just pass 
the basic common sense test. I look forward to hearing more 
about that from you as you have these meetings.
    Thank you.
    [Additional information follows:]

    Admiral Papp. The Coast Guard concurs with the intent of the draft 
legislation criminalizing a trainer engaging in consensual sexual 
relationships with a trainee. However, the statute is duplicative with 
existing charging options under the Uniform Code of Military Justice 
(UCMJ) and may invite appellate challenges.
    This conduct is already criminalized under the UCMJ. Coast Guard 
personnel policy explicitly states that consensual sexual activity 
between a trainee and trainer is prohibited and punishable under 
Article 92 for failure to obey an order or regulation. The Coast Guard 
has long used Article 92 to hold company commanders accountable for 
consensual relations with students at training commands. In addition, 
Coast Guard Training Center Cape May has promulgated a lawful order 
prohibiting personal relationship between company commanders and 
graduates of recruit training for 1 year following graduation.
    Sexual conduct that is not consensual is prohibited and punishable 
under Article 120. That would include cases when a trainer uses his 
authority to place a trainee in a position where he or she cannot 
consent freely. Sexual harassment is also punishable under Article 92 
(orders violation) or Article 93 (maltreatment).
    Placing this proposed offense under Article 120 as a sexual assault 
raises legal concerns. The proposal removes consent as a possible 
defense, thus making sexual conduct between two consenting adults a 
strict liability sex offense.
    Doing so would likely draw Constitutional challenges in light of 
recent decisions by the Supreme Court and Court of Appeals for the 
Armed Forces. Categorizing this offense as a ``sex act'' and placing it 
under Article 120 raises an issue with regard to sex offender 
notification. Under the Federal Sex Offender Registration Act, ``an 
offense involving consensual sexual conduct is not a sex offense for 
the purposes of this title if the victim was an adult, unless the adult 
was under the custodial authority of the offender at the time of the 
offense.'' 42 U.S.C. Sec. 16901(5)(c). The result is that conduct 
criminalized under Article 120 may not result in registration while 
other conduct will.
    Because the proposal invites unnecessary legal risk with some of 
the language used in the draft text and placement of this offense under 
Article 120, the Coast Guard recommends that this proposal be further 
studied by the congressionally-mandated panels under the National 
Defense Authorization Act of 2013.

    Chairman Levin. Thank you, Senator Ayotte.
    Senator Donnelly.
    Senator Donnelly. Thank you, Mr. Chairman.
    I want to thank all of you for your service, and I know how 
hard you are working to try to get this right.
    We have heard about the risk of unintended consequences, 
but here is the risk that concerns me; I know you all feel the 
same. We have brothers and sisters, sons and daughters, 
husbands and wives, and when this happens, it is the risk of 
personal violation of somebody. It is the risk of destroying 
that person's internal soul, their emotional state, their 
physical state.
    In some cases, by a person who they look to as their 
leader, their commander, and that they look to with a sacred 
trust. General Amos, you put it best. You said this is a sacred 
trust that we have in front of us and that we have an 
obligation to get this right.
    We are in this with you. When you said the buck stops here, 
the buck stops with us, too. We have an obligation to get this 
right.
    I was at the Indy 500 a week before the race, and we 
inducted a couple hundred young men and women into the Service. 
I want to be able to know when I look them in the eyes that I 
can keep my obligation to tell them you can serve our country, 
serve with dignity, have your dignity respected. That is what 
we are trying to do.
    General Odierno, you said we have a commander problem, and 
so my question is we ask a lot of our commanders, in many 
cases, they are in the middle of fighting a war at the same 
time. They have a lot on their plate.
    It doesn't, in my eyes, make them less capable that they 
don't handle this. They have other things to handle. Why would 
a soldier think less of their commander simply because their 
commander doesn't handle this area?
    General Odierno. Well, having been a commander in combat on 
three occasions----
    Senator Donnelly. Right.
    General Odierno.--I would tell you that is essential 
because they depend on you for everything that goes on in that 
unit. One of the things we talked about, by the way, is this 
threat about retaliation. That is not going to change if you 
take it outside the chain of command. You still have the threat 
of retaliation.
    I want the commander fully involved in the decisions that 
have an impact on the morale and cohesion of the unit, to 
include punishment, to include UCMJ. That is their 
responsibility. It is not too much responsibility.
    In my mind, it sets the tone for the unit in order for them 
to execute under the most strenuous conditions, and I need 
commanders who can do that. I think, ultimately, if they can't 
do it, then we hold them accountable. That is their 
responsibility.
    So I feel very strongly about it. Because what we ask them 
to do--I agree with you. What we ask them to do is very unique 
and very complex, and it requires a commander who sets the tone 
for every issue. As we increase the role of women, it becomes 
even more important in my mind that the commanders take this on 
themselves and that they are part of the process to solve these 
problems.
    The other thing I would just say is they are not making 
these decisions independently. You have a very experienced 
Judge Advocate by your side the whole time, walking you through 
and helping you through this process.
    Senator Donnelly. What is the training that they have, the 
commanders, as well in terms of classes that they take or book 
learning that they take that they can look at this and go, ``It 
is this or it is that,'' where they have the same kind of 
prosecutorial ability.
    General Odierno. Yes. We require commanders to go through 
legal orientation courses before they take command. That is 
part of the requirement for a battalion command, brigade 
command, and when general officers take command, they are 
required to go through a course that we teach at the Judge 
Advocate General School in Charlottesville.
    They go through that course to specifically outline for 
them what their responsibilities are. One of the key pieces of 
that is if you don't understand the responsibility, you go to 
your JAG for them to explain to you the details and technical 
responsibilities that you have. It is not only do they get 
trained, they are taught to rely on their JAGs.
    Senator Donnelly. This would be for any of the people. Are 
you aware of how often, and I am sure you are, that people who 
have suffered the sexual assault, that not long after there is 
often suicidal thoughts or suicidal problems? I mean, this 
seems to compound another issue that we deal with.
    General Odierno. You are right.
    Senator Donnelly. Well----
    General Odierno. You are right, Senator. It does, and that 
is why it gets to the overall issue of climate, environment, et 
cetera.
    Senator Donnelly. I would like to ask our Coast Guard 
admirals who are here with us, there is a documentary, ``The 
Invisible War.'' There is a young lady in there who is a member 
of the Coast Guard, stationed not far--stationed on Lake 
Michigan, not far from where I live. She went through an 
extraordinary and horrible series of events.
    I was just wondering after having seen that--she has been 
working with the Department of Veterans Affairs (VA) and 
working with others--has the Coast Guard reached out to her? 
Have you contacted her or sat with her or talked with her to 
say, ``Hey, how can we help put this back together for you?''
    Admiral Papp. Senator, we have made attempts to--some of 
the allegations she makes were not revealed when she was a 
member of the Service. Every time we have made the offer to 
further investigate or take up those allegations, we have 
received no response.
    I watched that, and it broke my heart. I brought it home 
and had my wife watch it with me. I know many of our spouses go 
on the road with us, and they are dealing with the families. 
They are dealing with the crews. We have made that mandatory 
viewing for our senior leaders, and we have also engaged in 
seminars, every single senior leader within the Service.
    In fact, we are going to finish up with our headquarters 
component next week. It is our intent that nothing like that 
happen again.
    Senator Donnelly. Okay. I guess the point I also want to 
make with this, and this is to all of you, and I know you are 
all committed to this as well, is that we continue to follow-
up. We continue to try to get it right for some of these folks 
who have felt, look, I have put forward my best claims. I have 
been put aside.
    Or as this process goes through, that once a decision is 
made that we don't just leave them to the side. That they are 
continuing to deal with a whole host of issues that we, like I 
said, when I looked at those kids at the Indy 500, the buck 
stops here, too. I have an obligation to make sure they get it 
right and have an awesome and wonderful career, just like all 
of you have had.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Donnelly.
    Senator Kaine.
    Senator Kaine. Thank you, Mr. Chairman.
    Admiral Greenert, in your testimony you departed a little 
bit from your written testimony in one way that I thought was 
interesting. You said this issue of sexual assault in the 
military represents an existential threat to our core values, 
and I think that is a great way to put it.
    There has been a lot of testimony today and questions 
eliciting testimony about the inside effect, the effect upon 
those who are serving, the debilitating effect that sexual 
assault of any kind would have. But I just want to say a word 
about my concern about the external effects, not just those 
currently serving.
    First, the recruiting concern is a major one. I was 
recently at the Mary Baldwin College in Virginia. There is a 
Virginia Women's Institute for Leadership. It is an 800-person 
women's college in Staunton, VA. One hundred of the women are 
in an institute that is focused on training people to take 
commissions in the military. They have a commissioning rate 
that is higher than most of the senior military colleges in the 
United States, about 60 percent.
    As the students and I were in dialogue about what they 
thought about for their future, they had two major concerns 
that they wanted to raise with me. First is on our soldiers. Is 
Congress, with sequester and all these other things, really 
committed to the mission? Would we want to sign up for a career 
if a political leadership wasn't committed to us?
    Second they were asking about the sexual assault issue. 
When somebody says I will put my life on the line and I will 
risk death to go in harm's way, but I don't know whether I want 
to risk a culture that has allowed this to grow so much, that 
is a very serious concern.
    You all, and we all, want to make sure that the best 
leaders in the future feel like this is a career that they can 
pursue because we want to be sitting here 25 years from now 
with leaders who are entering today because they know they can 
do it.
    The second external effect that this has in a very dramatic 
way is one on society. Every society needs heroes, and you all 
are as good as we have right now. But when people start to 
question their heroes or think that there is a cancer or 
something within the heroic class, it not only affects their 
view about the military, it affects their view about our entire 
society.
    I think they feel the same if they look at Congress. If 
they look at Congress and they feel like we don't treat each 
other civilly or we are too gridlocked, it doesn't just affect 
their view about Congress. It affects their view about our 
country.
    So, when people look at the military and they see these 
stories about sexual assault, it is not just affecting their 
view about the military. It weakens their confidence in our 
Nation. That is why the stakes in getting this right are so 
high.
    I tend to agree with the line of questioning that Senator 
Gillibrand and others were pursuing that one of the main issues 
here is this fear of reporting. The DOD report that came out in 
April has some staggering numbers.
    For those who do report unwanted sexual contact, 62 percent 
say that they have experienced something that they would 
believe is retaliation as a result. For those who do not 
report--and we know, I guess, maybe 7 of 8 don't report, based 
upon the recent survey--47 percent don't report because of fear 
of retaliation, and 43 percent don't report for another reason 
that is very close, which is the experience of others who have 
had the same reason, which would either be retaliation or, 
well, nothing was done. Why bother?
    So 90 percent of people who don't report are reporting for 
something, either retaliation or a sense of I have seen others 
who have gone through it, and it just doesn't make any 
difference. We have to get at that issue of the reporting and 
the retaliation.
    General Welsh, one of the things that I think is 
interesting, you talked briefly in your comments and also to 
Senator Ayotte about this Air Force special victims' counsel, 
the response that you have gotten. I would be interested in 
knowing about the positive response.
    I am sure it is positively received that along the way 
there is someone who can help understand the process, but I 
wonder whether the special victims' counsel, whether you are 
getting reports about it, ``It makes me fear retaliation less 
knowing that I have someone who is going to be with me through 
every step of the process.''
    If we can't get the fear of retaliation down, then we are 
not going to solve this problem. So, I think that the special 
victims' counsel pilot project that you all are working on, 
that may have an impact on the fear of retaliation. But if we 
can't whittle that fear down, we are not going to solve this 
problem.
    So I would be curious as to whether you are seeing that in 
any of the initial reports about the project?
    General Welsh. Senator, we haven't seen any comments back 
from the victims who do the survey debriefs with us that 
specifically relate to ``I feel better about the risk of 
retaliation because I had a special victims' counsel.''
    The positive return rate is about 95 percent on these 
surveys, overwhelmingly positive about the benefits of having 
someone who understood the legal process, who was by their side 
supporting them primarily the entire time, who shielded them 
from unnecessary questioning, and who helped them understand 
the intricacies and the confusion and the law of the legal 
system that they are now in.
    The positive results we are seeing are, number one, that 
feeling from victims. Even in some cases where the alleged 
perpetrator was acquitted, the victim still had usually 
positive things to say about the special victims' counsel.
    A couple of other areas that are really positive for us are 
that we are finding fewer victims of the ones represented by 
special victims' counsel deciding not to proceed forward with 
prosecution, and I agree with the comments that have been made 
earlier today about prosecution being a very, very, very 
critical piece of this. So, the more cases we can get to a 
court with good victim support to get the facts in the case 
right, I think the better we will be in the future.
    The other thing we are seeing is that there is a higher 
propensity for victims who start as a restricted report. Once 
they are assigned to special victims' counsel and have someone 
who is helping guide them through this what must be an 
incredibly confusing maze they face, more are deciding to come 
forward and change from restricted to unrestricted, about 50 
percent more than have in the past.
    Those two statistics are really positive for us. The 
special victims' counsel, in my mind, is one of a set of game-
changing things that can help us in this area across the 
spectrum of issues related to sexual assault. Right now, it is 
the only one we have found that is really gaining traction. We 
have to keep looking for all the others.
    Senator Kaine. Mr. Chairman, earlier you indicated, all of 
you, that you thought you had the tools you needed right now. 
But General Welsh, you did say that on the special victims' 
pilot that resources are a component of how broadly you can 
implement that, either in the Air Force or system wide. 
Correct?
    General Welsh. Yes, sir. It would be different by Service, 
based on numbers of legal, of SJAs that are available and size 
of your Service. But this is an issue. We just can't define it 
clearly enough yet because we don't know what the top end of 
our support capacity is.
    Hopefully, we will find that out by the time we finish the 
1-year pilot and be able to report on that in our paper.
    Senator Kaine. Thank you.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Kaine.
    Senator King.
    Senator King. You all have a great deal of experience with 
leadership. In my experience, the personality and qualities and 
character of the leader infect the whole organization, whether 
it is for good or ill, whether it is a company or a small unit 
or a governmental entity.
    We have talked a lot today about culture, and it just seems 
to me that one of the most important things is for you all to 
mean it. To mean it. To make it absolutely clear, no jokes, no 
winks, no nods, and don't tolerate people that make jokes, 
winks, and nods. That is going to be a powerful way to 
communicate it.
    I am not suggesting that you don't, but I am just saying 
that. Down the line that has to be part of this that we can 
change the rules and do all those kinds of things, but it is 
the culture that has to change, that this is unacceptable 
conduct.
    Along those lines, is retaliation an offense? If it isn't, 
it should be. General Dempsey, is retaliation an offense in one 
of these situations?
    General Gross. Senator, there may be ways to charge that. 
There is interference with the justice system and certain 
things that there may be threats that could be charged. There 
may be--there are different ways under the UCMJ that you could 
get at that behavior.
    Senator King. Well, I would suggest maybe you want to look 
at something more specific than tampering with the system. But 
we are talking about more subtle offenses, and perhaps think 
about defining an offense of retaliation for reporting one of 
these crimes because nonreporting is the big problem here. That 
is the big issue.
    General Gross. I mean, I truly do think there is adequate 
provisions within the UCMJ now that you could charge almost all 
the behavior that fell within that span.
    Senator King. Does it ever happen?
    General Gross. I know that I have recently seen charges 
where there was obstruction of justice. I don't know that it 
was retaliation, per se. But it was the idea that somebody was 
encouraging someone not to testify or threatening them not to 
tell the truth.
    I have seen that a number of times over my career. I don't 
know of a recent example of someone being charged with 
retaliation, per se, but some of the Service TJAGs might have 
an idea about that.
    Senator King. Anybody else want to address that issue?
    General Chipman. Senator, I will address part of it. We 
talk about retaliation, and in fact, the top three reasons that 
people don't report relate to loss of privacy, a desire not to 
undergo the process, the idea that too many people will know, 
so a lack of confidentiality. Those are the reasons that 
actually outnumber retaliation.
    Much of the retaliation that our survivors report actually 
relates to ostracism from fellow unit members. So, it is not a 
command-driven retaliation, but it is this idea that through 
social media and other contexts, victims feel that they are now 
isolated from the base of support within the unit that they may 
have once shared because of this report of misconduct within 
the unit, that same unit whose values and cohesion and ethos 
they share.
    Senator King. I would just suggest that this issue of 
retaliation is significant. Whether it is in the command chain 
or whether it is in the unit, again, it is creating a culture 
of zero tolerance. I think that is important.
    Let me change the subject for a minute. A lot of this 
discussion is about Senator Gillibrand's bill to take these 
decisions out of the chain of command. That is the issue that 
all of you addressed in your opening comments, and I think it 
is an important one.
    Are there any figures, and there may be--I apologize if I 
didn't pick them up--on how many decisions not to prosecute 
after a complaint is made? How big a problem is this of a 
decision of the O-6 or higher who decides not to prosecute? Is 
it 1 percent, 2 percent, 10 percent, 20 percent? Do we have any 
figures on that?
    General Chipman. Senator, I think much of our experience 
would be anecdotal. We have that check and balance with the 
Judge Advocate and the commander discussing each and every 
case. In the Army, for example, we have 50 major jurisdictions 
that last year tried 2,400 cases. I would have 50 general court 
convening authorities making the individual decision on the 
merits of each case, accompanied by a discussion with his or 
her Judge Advocate following a pretrial investigation.
    Senator King. But you see, the point of my question is 
Senator Gillibrand has suggested that we ought to take this out 
of the chain of command because that is a problem in the 
prosecution. I am trying to get at is it a problem in terms of 
the numbers? Does it happen once every 1,000 cases or once 
every 10 cases?
    If you can comb the studies and the records and perhaps 
answer that for the record, I would appreciate it.
    [The information referred to follows:]

    General Odierno and Lieutenant General Chipman. Statistically and 
anecdotally, the Army prosecutes the most serious offenses (rape, 
sexual assault, and forcible sodomy) at a rate comparable or favorable 
to most civilian jurisdictions. Data available in the fiscal year 2012 
Annual Report to Congress indicates that in founded cases in which 
there was a final disposition and jurisdiction over the offender, the 
Army prosecutes rape offenses at the rate of 56 percent and sexual 
assault (sleeping or intoxicated victims) at a rate of 59 percent. 
Studies by advocacy groups and academics estimate that civilian 
jurisdictions, that do not have comparable comprehensive reporting 
requirements, prosecute those same offenses at a rate between 12-20 
percent. In a penetrative offense allegation, if insufficient evidence 
exists to support the allegation, commanders can, and do, take lesser 
actions for related offenses such as adultery, fraternization, or 
violations of barrack's policies.
    Due to the variety of disposition options for commanders under the 
Uniform Code of Military Justice (UCMJ), the Army also prosecutes 
``minor'' offenses, those involving an unwanted touch, with non-
judicial or administrative punishments. Civilian jurisdictions rarely 
prosecute these types of offenses.
    Finally, the UCMJ criminalizes conduct, such as indecent language 
and or the sexual harassment of subordinates (maltreatment) that is not 
criminalized in civilian jurisdictions. This allows commanders to 
address the pre-cursor behaviors that can contribute to sexual assaults 
and affect morale and discipline in a unit.
    General Welsh. In general, the Air Force does not specifically 
track decisions not to prosecute after a complaint is made. However, 
some data is available specifically for sexual assault. The fiscal year 
2012 Sexual Assault Prevention and Response Office (SAPRO) report 
details 177 cases that were presented to Air Force commanders for 
action in fiscal year 2012. Commanders took action for a sexual assault 
offense in 56 of those cases: 42 resulted in preferral of court-martial 
charges, 14 in non-judicial punishment. Command action was precluded or 
declined for a sexual assault offense in 121 of those 177 cases 
presented to commanders for action in fiscal year 2012: 54 because 
probable cause existed only for a non-sexual assault offense, 32 
because there was insufficient evidence of any offense, 24 in which the 
victim declined to participate, 11 because allegation was deemed 
unfounded by command.
    ``Unfounded by command'' includes cases involving determinations 
made by a commander with supporting legal advice that the cases were: 
(1) False cases--Evidence obtained through an investigation shows that 
an offense was not committed or attempted by the subject of the 
investigation; or (2) Baseless cases--Evidence obtained through an 
investigation shows that alleged offense did not meet at least one of 
the required elements of a UCMJ offense constituting the SAPR 
definition of sexual assault or was improperly reported as a sexual 
assault.
    With regard to the number of cases where a Judge Advocate 
recommends going forward and a commander does not, the Air Force 
recently reviewed this through a data call. We found that commanders 
disagreed on disposition in only 22 of 2,511 cases tried from 1 Jan 
2010 to 23 Apr 2013 (less than 1 percent). Of those 22, there were 10 
in which a superior commander preferred charges and only 12 where no 
commander preferred charges. Only one of those 12 cases involved a 
sexual offense charge (wrongful sexual contact).
    General Amos and Major General Ary. In fiscal year 2012, 
investigations were completed on 288 suspected individuals. Of those, 
32.3 percent were outside of DOD's legal authority (i.e., the offender 
was unknown, the subject was a civilian or foreign national, civilian 
authorities assumed initial jurisdiction, or the subject died or 
deserted). Accordingly, in fiscal year 2012 there were 195 suspected 
individuals whose cases were presented to commanders for disposition 
decision. After consultation with a Staff Judge Advocate, the commander 
determined in these cases that there was insufficient evidence to 
substantiate any misconduct in 54 percent of those cases. Of the 
remaining cases, the commander determined that probable cause supported 
sexual assault charges in 33 percent of the cases. In 97 percent of 
those cases, the commander referred the case to court-martial.
    On April 20, 2012 the Secretary of Defense issued a memorandum 
withholding initial disposition authority (IDA) in certain sexual 
assault offenses to the, 0-6, SPCMCA level. The Secretary of Defense 
withheld the authority to make a disposition decision for penetration 
offenses, forcible sodomy, and attempts to commit those crimes. This 
withholding of IDA to a Sexual Assault Initial Disposition Authority 
(SA-IDA) also applies to all other alleged offenses arising from or 
relating to the same incident, whether committed by the alleged 
offender or the alleged victim (i.e., collateral misconduct).
    On June 20, 2012, the Commandant expanded this withholding to 
include not just penetration and forcible sodomy offenses, but all 
contact sex offenses, child sex offenses, and any attempts to commit 
those offenses. The Marine Corps also made it clear that in no 
circumstance could the SA-IDA forward a case down to a subordinate 
authority for disposition. For example, if a marine was initially 
accused of a non-consensual sex offense, along with orders violations 
and adultery, but the NCIS investigation did not substantiate the 
nonconsensual sex offense, the SA-IDA would still be required to make 
the disposition decision on the remaining non-sexual assault offenses, 
even if those types of offenses were of the type normally handled at 
lower levels of command. The result is that the USMC now has a smaller 
group of more senior and experienced officers making disposition 
decisions for all sexual offense allegations and any related 
misconduct.
    In fiscal year 2012, Marine Corps Legal Services Support Sections 
received 2,575 Requests for Legal Services (RLS) on military justice 
cases from commands within the Department of the Navy. Of those 2,575 
RLS, 17 percent resulted in adjudicated general or special courts-
martial. The other 83 percent were adjudicated using alternate forums 
or disposition methods. The Marine Corps found that convening 
authorities took action consistent with their SJA's recommendation for 
all cases that were disposed of during fiscal year 2012.

    General Chipman. Senator, we will do that. There is very 
little daylight between the cases that a Judge Advocate think 
is worth prosecuting and the decision of the commander to refer 
that case. So on the order of 1 percent would be more 
realistic.
    Senator King. That is a perfect intro to my final question, 
and that is instead of taking--I am looking for an alternative 
to taking it out of the chain of command but to still have a 
check and balance. What about a situation where a decision not 
to prosecute would have to have the written concurrence of the 
JAG officer associated with that decision? In other words, it 
is a two-person decision, as opposed to one.
    That is an attempt to find a middle ground between not 
tampering with the chain of command in any way, shape, or form 
and the bill that would take these decisions out of the chain 
of command. Any reflections on that?
    General Odierno. Senator, as I said in my opening comments, 
that is required. The JAG is required today to give his opinion 
in writing. If it disagrees with the commander's decision, it 
could be pushed up to the next higher level.
    Senator King. It could be or would be? That is my question.
    General Odierno. Yes, I think--I will let you answer that.
    General Chipman. Senator, I think could be. I don't think 
there is an automatic. It really depends upon the nature of the 
disagreement between the commander and the Judge Advocate. But 
certainly, there have been convening authorities and Judge 
Advocates who have called me in my current duties to say can I 
talk through this case with you and get your own assessment as 
to the merits of this particular decision.
    Senator King. My suggestion would be that it would go up 
one level if the JAG disagrees with the decision not to 
prosecute. Again, I am searching for an option here that 
maintains the chain of command but still provides another check 
and balance in these cases, which we all agree are 
unacceptable.
    Thank you very much, gentlemen.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator King.
    Senator Nelson.
    Senator Nelson. I would like to ask the commanders in 
determining whether or not to prosecute, do you feel that the 
accused's military service record should be a determination 
aid/determining factor in whether or not to prosecute? General 
Dempsey, I will start with you.
    General Dempsey. We had this conversation a little bit 
earlier, actually, and the question was at what point does 
character enter into a decision to prosecute? I think we were 
pretty clear, I thought, that the decision to prosecute was 
made in the context of the overall character of service, but 
always in light of the crime and the evidence that supported 
the criminal prosecution.
    In my own experience now, character generally comes into 
sentencing and punishment far more than it does into the 
decision to prosecute.
    Senator Nelson. Yes. Character in the sense of a person's 
exemplary military record, that is what I am talking about. Is 
there anybody that disagrees that a decision to prosecute could 
be mitigated by an exemplary record of the servicemember 
accused?
    General Amos. Senator, I don't believe a valorous record or 
a substantive record should have anything to do with the 
decision as to whether or not an individual should be 
prosecuted, number one.
    Number two, in 43 years, and having done this now many 
times, I can't think of a single instance where my SJA sat down 
with me and said, sir, we ought to reconsider this because this 
marine XYZ has a tremendous record. Not a single time.
    Senator Nelson. Does anybody disagree with General Amos? 
[No response.] Okay. Now I understand that you all have already 
discussed this, that you all agree that a commanding officer 
can, at whatever level, cannot reverse a conviction by a 
military court? Is there anybody that disagrees with that, in 
other words, you would agree that a commanding, convening 
authority could not reverse a conviction by a military court?
    General Gross. Senator, I think--I can't speak for 
everybody on the panel. But I think what was said earlier is 
that we support Secretary Hagel's proposal to modify Article 60 
that a commander, a convening authority couldn't reverse a 
conviction in all except certain minor qualified offenses, if 
those were the only ones remaining. He or she would still 
retain the authority to reduce sentences for different 
purposes.
    I think that was the earlier testimony.
    Senator Nelson. Could any of you speak--I guess, General 
Welsh, could you speak to the circumstances where this has 
happened that Senator McCaskill has been so involved in with 
regard to the Air Force general?
    General Welsh. Senator, I am not sure exactly what you are 
looking for. The case was the Aviano case, but are you talking 
about the convening authority's actual overturning of the 
verdict?
    Senator Nelson. Yes. In the case of General Helms.
    General Welsh. Yes, sir. General Helms is actually a case 
in Vandenberg Air Force Base in California, and General Helms' 
case was a case where an individual was charged with two 
counts, two sexual assault charges, and then some additional 
lesser charges.
    In the court, one of the sexual assaults, the principal 
sexual assault charge was found to be not guilty. The 
perpetrator was found guilty of the second charge and the 
subordinate charges. General Helms, in her Article 60 review, 
as the convening authority felt that the court had not met the 
burden of proof for the allegation of guilt or for the finding 
of guilty.
    So, she set aside that finding in the court, and she 
punished that finding under a lesser charge and the subordinate 
findings of the court under nonjudicial punishment. That is 
what happened.
    Senator Nelson. Do you believe that a commander should have 
that authority to overturn the decision of a military court?
    General Welsh. No, Senator. I completely agree with 
Secretary Hagel's recommended changes to Article 60.
    Senator Nelson. Thank you.
    Chairman Levin. Thank you, Senator Nelson.
    Senator Hirono.
    Senator Hirono. Thank you, Mr. Chairman.
    We have heard a number of you testify that the victims in 
these circumstances can make an initial report in a number of 
ways to a number of people. Now when the report is not to the 
person that is in the chain of command and it is to some 
nonmilitary entity, what happens to that report? Are these 
entities required in any way to submit a report to that 
person's, the complainant's chain of command?
    General Welsh. Senator, each of the Services may be a 
little bit different on how this starts, but I think we are 
fundamentally all the same. If the report goes to someone who 
then reports to the chain of command, the chain of command or 
anyone in the chain of command, the chain of command must now 
consider it an unrestricted report and it is reported through 
the command chain through standard reporting procedures.
    If the initial call goes to one of our Special Assault 
Response Coordinators, to a victim advocate, or to a medical 
person as part of that initial string of notifications, if they 
get it first and contact the victim, then the victim will have 
the opportunity to file an unrestricted report--or excuse me, a 
restricted report. It starts with focus on victim care.
    The commander is then only notified through the command 
chain that an incident has occurred. There is no identifying 
information.
    Senator Hirono. I can understand when it is all in the 
military environment, and so there is that. But we all know 
that one of the major issues with regard to these kinds of 
crime is the tremendous underreporting that is going on.
    My interest is to make sure that whatever reporting is done 
is being captured in some way by the military, and the 
testifiers said that sometimes civilian authorities or 
anonymously these crimes are reported. How do those get 
tracked, if at all?
    General Welsh. In some cases, they don't. In many cases, 
our SARCs actually have done an awful lot of work to connect to 
and cooperate and communicate with victim care agencies in the 
regions around the bases. In those cases, those organizations, 
unless there is a privacy restriction imposed upon them, will 
share information or encourage victims to talk to the SARC, and 
we will get the reporting back into the military chain.
    Senator Hirono. You all do your best, all of you Chiefs and 
all of our Services, you do your best to capture this kind of 
information, I hope? Good.
    There was also a discussion about command climate surveys 
and how important they are to determine what kind of 
environment our men and women are serving in. It seems as 
though these are not institutionalized. It is not formalized.
    I would suggest, and following up on some of my other 
colleagues' line of questioning, that I would like to know who 
does the survey? Who gets asked to participate in the survey? 
What questions are asked in the survey? What happens in those 
surveys?
    I think that these surveys should be institutionalized 
because of the importance.
    General Odierno. Yes. In fact, I believe they are 
institutionalized. First, the entire unit answers the question. 
So, in other words, if it is a company or a battalion, the 
entire unit will be part of the command climate survey, or at 
least a proper representation of the unit of every rank.
    Involved in the questions are anything to do with the 
readiness of the unit to discipline within the unit, to sexual 
assault, sexual harassment, to suicide information, to how they 
feel the command reacts to what they do, what they don't do. So 
it gives you overall assessment of a capability of a unit from 
readiness to climate issues, and we have questions that are 
specifically built for them to answer that have been studied 
and continue to be adjusted over time throughout the Army.
    Then those answers are taken. There are assessments done, 
and then feedback is given to the chain of command.
    Senator Hirono. So these surveys are institutionalized in 
the Army. What about the other Services? Also there is a 
question of confidentiality. Are these surveys done 
confidentially?
    General Odierno. They are.
    Senator Hirono. What about the other Services?
    General Amos. Senator, we have institutionalized it. It is 
mandatory for each command. As soon as a commander takes over, 
within 30 days, he or she has to have this 34-question command 
climate survey taken on 100 percent of the individuals in their 
unit. Then it will be done on the anniversary of that taking, 
so every year.
    That information is confidential, and it goes to the next 
higher command, and in that, out of that, the next higher 
commander. So if the command is a battalion that is having the 
survey, a regimental commander is going to know the climate of 
that organization. Are the marines happy? Is the equipment up, 
and are they--what is the climate for sexual harassment and 
sexual assault?
    Senator Hirono. Thank you. I am running out of time, and I 
have a couple of important questions.
    We know that there are a number of bills that have been 
introduced, and several of them is to remove the chain of 
command from certain decisions. We know that we have allies--
Israel, United Kingdom, Australia, Germany--who have done the 
kinds of things, removal of chain of command on certain 
decisions.
    The response to the question of whether or not any of you 
have talked with our allies with regard to their experience I 
thought was unusual in that you had--apparently you haven't had 
those discussions. I like to make decisions based on 
information and experience. I would really like to hear from 
you as to when you intend to or if you intend to talk with our 
allies as to what their experience is in moving in the 
direction that some of these bills move in.
    Is there any timeframe when you are going to be doing that, 
any of our chiefs?
    General Welsh. Senator, I think we have all done a little 
bit of this work. General Harding, for example, has spoken with 
the Australians, with the Canadians, and with the British TJAG 
or member of the JAG staff to get their views on this.
    I have spoken with the former Canadian and British air 
chiefs, also the Israeli air chief on a visit to Washington. On 
my visit to Israel in about a month, it is one of the topics we 
have on the agenda to discuss with his legal team. I think this 
actually is happening. There are people interested.
    The problem is getting to the details, and to get the 
details of how they operate, we have to go to them to talk to 
them and their staff. That is what was not available when we 
spoke originally with the air chief.
    Senator Hirono. Mr. Chairman, I would very much appreciate 
a response from all of our Services as to when they intend to 
talk with our allies, if they intend to, and with specifically 
regarding the removal of the chain of command on some of these 
decisions.
    Chairman Levin. Do you want that for the record?
    Senator Hirono. I would like to have that in the record.
    Chairman Levin. Please tell us whether you and your JAGs 
have had such conversations and, if not or even if you have, 
what your plans are to have additional conversations with our 
allies. A number of people have raised that question. So we 
will ask each of you, for the record, to give us that 
information.
    [The information referred to follows:]

    General Odierno and Lieutenant General Chipman. The General officer 
leadership of The Office of The Judge Advocate General (TJAG) for the 
U.S. Army has met with the Canadian TJAG, Canadian DJAG on Military 
Justice, British T JAG, and Australian TJAG within the past 2 years to 
discuss the role of the commander in military justice. It is important 
to note that changes in those systems, that altered the authority of 
the commander in military justice, were based on perceptions or 
findings that the rights of the accused soldiers were not being 
adequately protected. We will continue to examine our allies systems of 
justice.
    Admiral Greenert. The Judge Advocate General of the Navy, the 
Deputy Judge Advocate General of the Navy and I have had meetings with 
our counterparts from the United Kingdom, Canada, and Australia to 
discuss the management of military justice cases, including sexual 
assault. The role of the military commander in these nations differs 
from the role of the commander in the U.S. military justice system.
    In the United Kingdom, a civilian Director of Service Prosecutions 
makes the decision to prosecute at court-martial and determines the 
charges. Military commanders may try minor offenses at a Summary 
Hearing (similar to non-judicial punishment (NJP) under Article 15 of 
the Uniform Code of Military Justice (UCMJ)); however, serious offenses 
are referred to General Court-Martial and, in contrast to the U.S. 
military justice system, commanders may not grant clemency following a 
conviction at court-martial.
    In Canada, commanders may try minor offenses at a Summary Trial 
(similar to NJP). For more serious offenses, a commander, a commander's 
delegate, or a military police officer may charge the offenses, which 
are then referred to the Canadian Military Prosecution Service (CMPS). 
The CMPS was created to separate the court-martial system from military 
commanders; the Director is appointed by the Defense Minister and it is 
staffed with active-duty attorneys. CMPS decides which cases should 
proceed to trial, designates the trial forum, drafts appropriate 
charges, and provides prosecutors for court. CMPS may also decide to 
not proceed with charges. Military commanders have no authority to 
grant post-trial clemency following conviction at court-martial. 
Offenses committed by servicemembers in Canada may also be prosecuted 
in civilian courts.
    In Australia, a military commander may try minor offenses before a 
Summary Authority (similar to NJP). More serious offenses are 
investigated by the Provost Marshal, who has the discretion to submit 
the investigation to the commander or to the independent Director of 
Military Prosecutions (DMP). The DMP, appointed by the Defense 
Minister, consults with the Superior Authority (typically a two-star 
commander) to ensure chain-of-command input is considered in the 
disposition decision. For offenses with concurrent military/civilian 
jurisdiction, the DMP is required to consult with civilian authorities 
to determine whether the offense is sufficiently connected to service 
discipline to allow trial by court-martial. If the DMP determines that 
court-martial is warranted, the DMP determines the charges and provides 
the prosecuting attorney. Through the Registrar of Military Justice, a 
panel of jurors is chosen at random from all available officers of the 
defense force. This system was instituted in Australia eight years ago. 
Although generally thought to have provided more transparency and 
fairness in the eyes of the Australian populace, the changes have not 
markedly changed the rate of criminal offenses, serious crimes, or 
conviction rates. The Australian force has expressed an interest in the 
U.S. system's restricted reporting options to encourage sexual assault 
victims to come forward.
    Many of the changes made to the military justice systems in the 
United Kingdom, Canada, and Australia resulted from perceived system 
unfairness, lack of transparency, or court rulings pertaining to the 
rights of accused servicemembers. However, each system retains the 
authority of the commander to adjudicate minor offenses and maintains 
differing roles for the military commander in the disposition of more 
serious offenses.
    General Welsh. We have spoken with a number of our allies about 
removal of the chain of command on some decisions, and we have begun 
evaluating the merits of their approaches. Specifically, Lieutenant 
General Rich Harding, the Air Force Judge Advocate General, had 
meetings with his Australian and Canadian counterparts on the topic in 
the last 6 months and intends to engage with his British counterparts 
later this year. In addition, I will be meeting with his Israeli 
counterpart in August and this issue is already on their agenda. He 
will add this topic to the agenda for future meetings with his 
counterparts from our other nations who have a system that separates 
commanders from the initial disposition decision. Our additional 
conversations with allies on this topic will build on the knowledge we 
already accumulated.
    One key distinction that makes adopting any of the allied models of 
criminal justice especially problematic for the United States is the 
relative size and geographic distribution of our Armed Forces compared 
to those of our allies. The United States has approximately 1.4 million 
active duty servicemembers stationed worldwide compared with 
approximately 221,000 in Germany, 212,000 in the United Kingdom, 
172,000 in Israel, 59,000 in Canada, and 51,000 in Australia. As of 31 
December 2012, U.S. Armed Forces were stationed in more than 150 
countries, with large contingents of 52,692 in Japan, 45,596 in 
Germany, 39,157 in Afghanistan, Iraq, Kuwait, South Korea and 
classified locations, 10,916 in Italy, and 9,310 in the United Kingdom. 
Implementing a centralized prosecutorial system likes our allies 
presents unique challenges given a need to administer a consistent 
uniform justice system for a very mobile workforce across nearly every 
time zone in multiple foreign countries subject to host nation 
arrangements.
    General Amos and Major General Ary. The Staff Judge Advocate of the 
Marine Corps (SJA to CMC) has personally met with the senior Canadian 
judge advocate and discussed changes in their military justice system. 
The SJA to CMC's staff has also been researching and evaluating the 
changes some of our allies have made to their military justice systems 
to see what lessons may be learned.
    The Marine Corps' initial research into the changes made by our 
allies indicates that in many cases, those changes were undertaken 
because of court decisions that found the military justice system did 
not adequately protect the rights of the accused. This is a 
fundamentally different situation than the one currently being 
evaluated by Congress. Federal courts, including the Supreme Court, 
have consistently upheld the constitutionality of our military justice 
system.
    The Marine Corps will continue to research lessons learned from our 
allies, both individually and collectively as part of the Joint Service 
Committee on Military Justice, the Code Committee, the Response Systems 
Panel, and the Judicial Proceedings Panel. We are constantly reflecting 
upon our system and trying to improve it. We will continue to do so in 
the future.
    Admiral Papp. [Deleted.]

    Chairman Levin. Thank you, Senator Hirono.
    Senator Hagan.
    Senator Hagan. Thank you, Mr. Chairman.
    Mr. Chairman, I really do appreciate you holding this 
hearing today, and I appreciate all of you being here and your 
testimony.
    I also appreciate the fact that we have All-Volunteer 
Service today. I think our men and women who are serving us, 
they have a mission, and they have a job to do. They should not 
have to worry whether today is going to be the day that they 
are sexually assaulted.
    I want to tell General Amos and Admiral Papp, I believe in 
your opening sentence, both of you said that this is a crime, 
sexual assault is a crime, and we have to address it as such. 
That is what this hearing is for, to discuss this.
    One of the concerns that I have heard and that has been 
raised with me is an environment in which commanders--and this 
is a little bit of background--are hesitant to report issues 
like sexual assault up to the chain of command because of the 
fear that making these incidents known might possibly reflect 
poorly on them as commanders. Commanders may fear that if they 
are not ``handling it at their level,'' they might be passed 
over for promotions and future command.
    While I realize that the official message from our senior 
leaders is different, I am concerned that at the lower levels, 
especially at the lower levels, there may be an environment in 
which commanders believe that they have to sweep sexual assault 
reports under the rug in order to avoid a perception that they 
are not properly leading their units.
    General Odierno and General Amos, if you could tell me, are 
there any concerns that our commanders, especially at these 
more junior levels, feel they need to handle the situation 
rather than properly reporting sexual assaults? In particular 
if it would impact on their careers?
    General Odierno. I think, first off--thank you, Senator, 
for the question. I think, first off, what we have to discuss 
is that this is everybody's problem. It is not their problem. 
It is every commander's problem. It is every soldier's problem. 
It is everybody's problem. We have to work this together.
    In fact, what we are trying to establish is that the worst 
thing we can do is not report this and not deal with it. That 
is our responsibility. What I am trying to emphasize is the 
fact that if you don't do the things we are asking, reporting, 
setting the right climate, it is about what actions you are 
taking. Inaction is what we don't like.
    I think the constant discussion that you have to have from 
command level to command level to command level is what you 
have to do to ensure this does not happen, what you described, 
and that is what we are really focusing on. Because in order 
for us to solve this problem, everybody has to be all in on 
this problem.
    General Amos. Senator, I think it could happen, and I 
suspect, as I look back over years, decades, it probably has. 
But I will just say that we talked a lot about command climate 
here. We have talked about, to me, that, in and of itself, is a 
commander's report card of sorts.
    I mean, there is a lot of other things that a senior 
evaluates a junior on, but in there, you will know right away 
whether you have a climate that supports and protects victims 
of sexual assault and sexual harassment.
    Today is different than it was even a year ago. Our 
commanders now, just as the chief was saying, understand that 
the problem is a Service-wide problem. We are all in it 
together. I am not going to take a commander that has a sexual 
assault in a unit and say, ``Shame on you.'' I will say ``shame 
on you'' if you don't protect the victim and you don't handle 
it well, and you back away from it.
    But my sense is we are leaving that environment. We 
probably had that environment in the past.
    Senator Hagan. I just want to be sure that there is not 
negative professional consequences to the commanders who are 
doing the job to report these incidents and to prosecute them.
    Admiral Greenert?
    Admiral Greenert. Senator, if I may? For about 6 months 
now, we have had a process in place where the unit commander 
briefs a sexual assault to the first flag in the chain of 
command. There is--they sit down and say this is what happened. 
This is the environment behind it. These are the specifics of 
it.
    All sexual assaults are reported in our Operations Report, 
our operation reporting system. So there is no hiding it, per 
se. Now we want to get to the details, bring that together, and 
find out----
    Senator Hagan. Well, you have to report it in order to get 
to that point.
    Admiral Greenert. Yes, ma'am. But once they are--once it is 
reported, I mean, it is out there. So, again, to General Amos 
and General Odierno's point, it is a conversation that we all 
have to have. Then quarterly, I sit down with my four-star 
commanders and say what are we learning about all of this? What 
are our commanders telling us?
    So there is a broader conversation, and there can be more 
focused action. We do this for big things like collisions, 
airplane crashes, and things of that nature. It is embedded in 
important operational issues for us.
    Senator Hagan. Thank you.
    I want to now look at sex offenders in the military and 
then how it relates to the civilian component. Back in 2008, 
there were guidelines where sex offender registration required 
military correctional and supervision personnel to actually 
notify State authorities concerning the release of sex 
offenders to their States. There are instructions that they 
must inform the convicted person of his or her duty to register 
and must inform the appropriate officials in the offender's 
State and jurisdiction of residence.
    The Secretaries concerned ``shall establish a system to 
verify that these required notifications have been made.'' I 
agree that military personnel convicted of sexual offenses 
should be punished and then separated from the Service, out of 
the Service. But I also believe our obligation doesn't end at 
that point when a sex offender walks out the gates.
    So my question is, and perhaps General Chipman and Ary, how 
are the Services verifying that these required notifications to 
State authorities have been made for sex offenders as they 
separate from the military or after they have been convicted?
    General Chipman. Senator, part of the issue depends on the 
point of departure. For example, from an installation, that 
responsible installation would be the notification entity. If 
it is from a confinement facility, there are provisions within 
the confinement, also the administrative entity that supports 
the confinement facility that would make those notifications.
    Where we have a challenge is when that ex-soldier or ex-
prisoner then moves to another State, and how do we follow up 
to ensure that that individual has then notified? Is that our 
follow-on obligation to ensure that that gaining State is also 
aware of this sex offender?
    Senator Hagan. What State do they report it, and are you 
positive that that reporting takes place?
    General Chipman. In other words, when they move, they have 
an obligation----
    Senator Hagan. Right. Well, no, when they actually--when 
they get out the first time.
    General Chipman. Well, from the point of the State in which 
they separate or in which they are discharged.
    Senator Hagan. General Ary?
    General Ary. We have a similar process. Both the brig 
system will do the notification, and then NCIS will do a 
notification for qualifying offenses.
    Senator Hagan. You are positive this takes place?
    General Ary. It is required. I think making sure it happens 
in each and every case to the follow-on States and the moving 
challenges, that is going to be an issue. But it is in the 
system.
    Senator Hagan. The individuals here, do you see reports 
like that that this has, in fact, been done?
    Admiral DeRenzi. Yes, ma'am. Those reports come up through 
the brig system. Our brigs are responsible. They notify the 
individual that he or she has to register as a sex offender, 
and they notify the State that the offender is going to so that 
the State is on alert that we are going to be releasing someone 
who has to register as a sex offender when they move.
    As the general said, when the individual doesn't receive 
confinement, the NCIS does that for us.
    [Additional information follows:]

    Secretary of the Navy Instruction 5800.14A provides instructions 
for notification of sex offender status prior to release from military 
confinement, or notification by the Naval Criminal Investigative 
Service (NCIS) if the sex offender was not confined.

         Prior to the permanent release from confinement, the 
        correctional facility (brig) will advise the prisoner of the 
        registration requirements for the State the prisoner intends to 
        reside within upon release.
         Prior to the release of the prisoner, the confinement 
        facility will provide written notice of the prisoner's 
        impending release to:

                 the chief law enforcement officer of the State 
                in which the prisoner intends to reside upon release;
                 the chief law enforcement officer of the local 
                jurisdiction in which the prisoner intends to reside; 
                and
                 the State or local agency responsible for the 
                receipt or maintenance of sex offender registration in 
                that jurisdiction.

         If the offender was not sentenced to confinement, or 
        the offender is not confined in a military confinement 
        facility, no later than one working day after completion of the 
        judicial proceeding. the Convening Authority will provide the 
        Results of Trial indicating sex offender registration or 
        notification requirements to NCIS.
         NCIS will then notify the State and local law 
        enforcement officials and the agency responsible for sex 
        offender registration/notification in the jurisdiction of which 
        the convicted servicemember intends to reside, work, or attend 
        school.

    Senator Hagan. Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Hagan.
    We thank you, this panel very, very much. We thank those 
with whom you serve. Thank you for your service, and also your 
families for your service.
    This panel is excused, and we will now call our second 
panel.
    We are going to take a 5-minute break for the sake of our 
reporter here. [Recess.]
    We now welcome our second panel, a panel of commanders. 
Colonel Donna W. Martin, U.S. Army, Commander of the 202nd 
Military Police Group.
    Captain Stephen J. Coughlin--did I pronounce your name 
correctly?
    Captain Coughlin. It is Coughlin, sir.
    Chairman Levin. Coughlin. Thank you, Captain. U.S. Navy, 
Commodore, Destroyer Squadron Two.
    Colonel Tracy W. King, U.S. Marine Corps, Commander, Combat 
Logistics Regiment 15.
    Colonel Jeannie M. Leavitt--did I pronounce your name 
correctly? U.S. Air Force, Commander of the 4th Fighter Wing.
    We welcome you all. We thank you for your service and those 
with whom you work, and we will call you in the order that I 
just stated.
    So, Colonel Martin, welcome, and please limit your 
testimony to 5 minutes. Colonel?

    STATEMENT OF COL DONNA W. MARTIN, USA, COMMANDER, 202ND 
                     MILITARY POLICE GROUP

    Colonel Martin. Chairman Levin, Ranking Member Inhofe, and 
distinguished members of the committee, thank you for the 
opportunity to testify before you today.
    My name is Colonel Donna Martin, and for the past 2 years, 
I have commanded the 202nd Military Police Group CID, which 
provides world-class investigative and protective services to 
the U.S. European Command, U.S. Africa Command, and U.S. 
Central Command. Our mission is to protect and safeguard DOD 
personnel and resources.
    I lead personnel assigned to 13 military installations 
throughout Germany, Italy, Belgium, and Kosovo. I have 
commanded military police units at the company, battalion, and 
brigade levels. My experience with and authority under the UCMJ 
has grown at each stage of command.
    As a company commander, I attended a Company Commander-
First Sergeant Pre-Command Course, which included instruction 
on military justice. The Company Commander-First Sergeant 
Course emphasizes the role and relationship between the Judge 
Advocate and the commander. This relationship is critical. It 
is a relationship that is built on mutual trust and respect. 
From my time as a company commander through brigade command, I 
have received instruction on military justice, and I have 
relied upon my Judge Advocate as I have considered military 
justice actions.
    Military justice becomes more complex as you become more 
senior. Prior to assuming my duties as battalion commander, I 
attended the Senior Officer Legal Orientation Course at the 
Army's Judge Advocate General School.
    This course acquaints senior Army officers with the legal 
responsibilities and issues commonly faced by battalion, 
brigade, and installation commanders and by those commanders 
assuming special court-martial convening authority. As a 
battalion commander, I relied heavily on my past instruction, 
along with the advice of my Judge Advocate in making military 
justice decisions.
    I currently serve as the commander of the Army's premier 
felony investigative unit in Europe. Being a CID commander not 
only gives me the inherent authorities of command, but it also 
exposes me to the crime trends throughout the units in Europe. 
Part of my mission is to educate and inform leaders at all 
levels of possible causes for crime trends and assist in the 
development of strategies to prevent further crimes.
    We have conducted over 100 crime trend analysis briefings 
in Europe, specifically oriented to a requesting unit. In my 
capacity as a CID commander, I have had the unique opportunity 
to build a Special Victims Unit consisting of both skilled 
sexual assault investigators and a special victims prosecutor, 
all of whom receive additional specialized training.
    This collaborative team develops the facts, builds a 
rapport with the victim, and advises the commander so that he 
or she can make an informed decision regarding adjudication. 
The Special Victims Unit is notified of and tracks every 
allegation of sexual assault. They confer early and often with 
investigators to ensure a thorough and professional 
investigation.
    We are in constant contact with the commanders that we 
support as investigators. My criminal investigators offer 
commanders additional resources to combat sexual assault, 
included targeted prime analysis briefings, newcomers 
briefings, and a sharing of best practices aimed at solidifying 
our commitment to providing the best possible investigative 
support so that commanders can execute their UCMJ authorities.
    In summary, I would just reiterate that I have been 
educated in military justice at each stage of command, and I 
have worked closely with Judge Advocates at every step. It is 
of paramount importance that commanders are allowed to continue 
to be the center of every formation, setting and enforcing 
standards and disciplining those who do not.
    The commander is responsible for all that happens or fails 
to happen in his or her unit. They set the standard, and we 
enforce them. The UCMJ provides me with all the tools I need to 
deal with misconduct in my unit from low-level offenses to the 
most serious, including murder and rape. I cannot and should 
not relegate my responsibility to maintain discipline to a 
staff officer or someone else outside of the chain of command.
    Thank you for the opportunity to speak with you today. I 
look forward to answering your questions.
    Chairman Levin. Thank you very much, Colonel.
    Captain Coughlin?

    STATEMENT OF CAPT STEPHEN J. COUGHLIN, USN, COMMODORE, 
                     DESTROYER SQUADRON TWO

    Captain Coughlin. Good afternoon, Mr. Chairman and members 
of the committee. Thank you for allowing me this opportunity to 
speak with you today and to provide any information that may be 
useful on how we in the Navy are responding to the crime of 
sexual assault from the perspective of a unit-level naval 
commander.
    I am serving in my third command assignment at sea, and I 
am currently the commander of Destroyer Squadron Two, home 
ported in Norfolk, VA. My squadron is comprised of 8 Arleigh 
Burke-class destroyers, consisting of just under 2,500 
personnel. These units deploy across the globe independently as 
ballistic missile defense ships or components of a carrier 
strike group.
    I am a career service warfare officer and a graduate of the 
U.S. Naval Academy. Beginning in Annapolis, I have been a 
leader in a mixed-gender environment throughout my career. From 
the beginning, we were all taught to recognize the value of 
each individual sailor and annually trained in sexual assault 
prevention and response, fraternization, equal opportunity, and 
other aspects of military law and accountability.
    More specifically, prior to every leadership position I 
have held, I have received mandatory refresher training on 
these subjects, particularly in sexual assault. In addition, I 
have had legal counsel and technical guidance by a local or 
embedded SJA at every command that I have been assigned to, and 
like any prudent commander, I have never hesitated to seek 
advice for any case that I have handled.
    In all those cases, the use of the UCMJ authorities enable 
me to set a tone, shape a culture, establish good order and 
discipline in my organization by quickly and visibly taking 
action to hold those under my command accountable for 
misconduct and to protect those I am responsible to with the 
preventive measures enabled by the UCMJ.
    As the commodore of a destroyer squadron, I ensure all of 
my commanding officers are trained on the UCMJ and that they 
use it as a tool for maintaining a squadron-wide environment 
where all personnel are treated with respect and dignity and 
where rules and regulations are not violated.
    This is a vital component of the commander's ability to 
establish the conditions where the result is unit efficiency, 
team cohesion, and trust up and down the chain of command. 
Since the commander of a military unit is responsible and 
accountable in every respect for the welfare of all assigned 
personnel, there must be authorities in place for that 
commander to take appropriate actions for every infraction and 
disturbance that negatively affects his or her people.
    Any change to this will erode the commander's ability to 
command by reducing his or her effectiveness in the eyes of the 
crew. Taking authority away from unit commanders could have 
direct adverse effects, such as warfighting inefficiencies, 
noncompliance with battle orders and rules of engagement, and 
the lack of damage control and fire fighting effectiveness in 
moments of crisis.
    In short, the authority of a naval commander at sea is 
essential for fighting the ship. The failure of a commander to 
exercise his authority, in turn, should and does result in the 
immediate removal of that commander, a practice the Navy 
persistently maintains.
    Based on my unit-level perspective, the process for victim 
reporting, with the option for a restricted or unrestricted 
report and the many avenues available for reporting sexual 
assault, has encouraged more victims to come forward and 
receive the care and support that they need.
    I have also noticed the effects of the new fleet-wide 
training initiatives that have been targeted at smaller groups 
and have us openly and candidly talking to each other about 
violent crimes, the importance of bystander intervention, the 
role of alcohol, and related topics.
    Our current training efforts are not the typical ``death by 
PowerPoint'' or block-checking exercises, but personal and 
meaningful facilitated engagement that is building trust and 
changing our culture.
    Thank you for this opportunity to be here today and discuss 
this very important issue in our military, and I look forward 
to your questions.
    Chairman Levin. Thank you very much, Captain.
    Colonel King.

   STATEMENT OF COL. TRACY W. KING, USMC, COMMANDER, COMBAT 
                     LOGISTICS REGIMENT 15

    Colonel King. Chairman Levin, Ranking Member Inhofe, and 
members of the committee, I am honored and humbled at this 
opportunity to address you today on this critical issue.
    Preventing sexual assault or any other form of misconduct 
in my regiment is my personal responsibility. It is a 
responsibility I don't take lightly.
    My name is Colonel Tracy King, and I have the honor of 
leading approximately 3,000 men and women of Combat Logistics 
Regiment 15. I have commanded marines and sailors of platoon, 
company, battalion, and most recently in my current assignment 
as a regimental commander. I have served in all three Marine 
expeditionary forces and with all elements of the Marine Air-
Ground Task Force. My operational experiences include numerous 
deployments in the Middle and Far East.
    Like all commanders at my level, I have received legal 
training on numerous occasions to include the Senior Officer 
Legal Course at Newport, RI, the Naval War College, and most 
recently at the Commanders Course just last year. 
Accountability in my regiment begins and ends with me. This 
includes the prevention and adjudication of any form of 
misconduct, especially all instances of sexual assault.
    Please allow me to be blunt. My job is to ensure that my 
regiment is ready to fight today's fight today. This kind of 
readiness demands a level of unit cohesion that can only stem 
from strong bonds between marines and complete trust between 
marines and their commander. I cannot afford and my Commandant 
will not allow an environment absent that trust.
    Thank you again for holding this important hearing. I look 
forward to the opportunity to answer your questions.
    Chairman Levin. Thank you very much, Colonel.
    Colonel Leavitt.

  STATEMENT OF COL. JEANNIE M. LEAVITT, USAF, COMMANDER, 4TH 
                          FIGHTER WING

    Colonel Leavitt. Good afternoon. Chairman Levin, Ranking 
Member Inhofe, and distinguished members of the committee, 
thank you for the invitation to join you today.
    My name is Colonel Jeannie Leavitt, and for the past year, 
it has been my privilege to command the 5,000 men and women of 
the 4th Fighter Wing, located at Seymour Johnson Air Force 
Base, NC.
    Our mission is to deliver dominant Strike Eagle air power 
any time and any place when called upon to do so in defense of 
our great Nation. Within a matter of hours, we can deploy to 
provide precision combat air power and hold targets at risk 
anywhere in the world.
    I have been in the U.S. Air Force for more than 21 years. I 
am an F-15E instructor pilot with more than 2,600 hours, 
including more than 300 combat hours over Iraq and Afghanistan. 
I have served at various State-side locations as well as in 
South Korea, and I have deployed to locations in Saudi Arabia, 
Kuwait, Turkey, Bahrain, Qatar, and Afghanistan. I have 
commanded at the squadron and wing levels.
    My experience with the military justice system began well 
before I became a commander. From pre-commissioning academics 
to continuing coursework, training, education, and leadership 
briefings, these experiences instilled in me a deep sense of 
the vital role military justice plays in maintaining a 
disciplined force. As a result, I take my duties and 
responsibilities as a commander very seriously today.
    As the commander of the 4th Fighter Wing, I am responsible 
to ensure that our airmen are properly trained and equipped to 
go into harm's way at a moment's notice, should the need arise. 
Our Nation has entrusted the lives of America's sons and 
daughters to our military, and ultimately, it is the commander 
who shoulders that responsibility.
    An absolutely indispensible attribute of a combat-ready 
force is discipline. Commanders must have the ability to hold 
airmen accountable for their behavior. This is what enables a 
highly disciplined force, which increases the lethality of our 
weapons systems and improves the safety of our airmen.
    Discipline is not punishment. It is a state of readiness 
that allows flawless execution of a mission. A disciplined 
airman follows orders. The UCMJ gives commanders the ability to 
enforce the high standards they set.
    I often address 4th Fighter Wing airmen and reiterate my 
expectations of them. I expect them to abide by the Air Force 
core values of integrity first, service before self, and 
excellence in all we do. I also expect them to be professional 
and disciplined and to always have respect for others. When I 
talk about respect, I emphasize that there is absolutely no 
tolerance for sexual assault.
    If a sexual assault happens, we will ensure the victim is 
taken care of and ensure any guilty people are held 
accountable. Sexual assault is a vile crime against the victim 
and against society. It erodes trust, damages the unit, and 
weakens our military.
    The UCMJ gives commanders the ability to prosecute the 
guilty and hold them accountable for their actions. As we 
continue our efforts to eradicate sexual assault, we must 
strive to set a climate where prevention is the norm, a climate 
where airmen feel the duty and desire to protect one another.
    We must aggressively combat sexual assault to ensure we 
remain the world's greatest military. I won't set a goal of 
anything below 100 percent bombs on target for my fighter wing, 
and I won't set a goal of anything below 100 percent 
eradication of this wretched problem.
    Thank you again for the chance to testify before this 
committee today. I look forward to answering your questions.
    Chairman Levin. Thank you very much, Colonel.
    We will have a 6-minute round for questions.
    When a commander offers an Article 15 or a nonjudicial 
punishment (NJP), the accused has a right to decline the 
punishment and to insist upon a trial by a court-martial 
instead. If the accused does that, however, he or she risks 
more serious punishment that could be assessed by a court-
martial. Is that correct?
    Colonel King. That is correct, sir.
    Chairman Levin. Okay. Now let me ask each of you, is the 
availability of NJP, under Article 15 of the UCMJ, to quickly 
and efficiently punish servicemembers for some serious 
offenses, let us say barracks larceny, for instance, is that an 
important tool for the commander?
    Let me start first with you, Colonel Martin. Is the 
availability of NJP under Article 15, is that an important tool 
for the commander?
    Colonel Martin. Thank you, Senator.
    Yes, it is an absolute important tool for the commander to 
have. Number one, to be able to effect discipline in my unit, I 
must have the tools to do that. The UCMJ allows me to do that.
    But it also sends a message in my unit of what the standard 
is. So, if I, as a commander, don't have a tolerance for, say, 
barracks larceny in this case, then I have the tool to punish 
that offender under the article, Article 15.
    Thank you.
    Chairman Levin. Okay. Thank you.
    Captain?
    Captain Coughlin. Yes, sir. Absolutely, without question. 
That is probably the number-one tool for the commander to 
quickly and visibly establish discipline in his unit based on 
some infraction of a regulation.
    Chairman Levin. Okay. Colonel King?
    Colonel King. Sir, without question. It is quick. It is 
effective. So, yes, sir. It is an effective tool.
    Chairman Levin. Okay. Colonel Leavitt?
    Colonel Leavitt. Yes, sir. The Article 15 is absolutely a 
critical tool in the commander's toolbox.
    Chairman Levin. Now the question is whether we take away 
the--one of the questions that has been raised in one of the 
bills before us is whether we should remove from the commander 
the authority to refer cases for trial by court-martial.
    Now, first of all, what impact would that have on the 
commander's authority and control over those who are under his 
or her command? Why don't we start at the other end? Colonel 
Leavitt?
    Colonel Leavitt. Yes, sir. I think it is absolutely 
critical that the commander has the ability to prosecute 
offenses. You know they say that actions speak louder than 
words. I need to be able to back up my words. When I say there 
is absolutely no tolerance for sexual assault, I need to have 
the ability to back that up.
    I need to be able to take action against any perpetrators 
and hold people accountable. That is part of my responsibility 
as a commander.
    Chairman Levin. Now when you say to hold someone 
accountable, do you mean by, for instance, referring a case for 
trial by court-martial?
    Colonel Leavitt. Yes, sir.
    Chairman Levin. Okay. Colonel King?
    Colonel King. Sir, I will give you a straightforward 
answer. If you remove my authority to convene a court-martial, 
my suspicion is that the overwhelming majority of marines will 
refuse NJP.
    Chairman Levin. Will do what?
    Colonel King. They will refuse NJP. They will not accept 
it. They are not going to do it. They are going to take their 
chances with the person they have never met, a convening 
authority that is not there with them every single day. I think 
they will refuse it.
    Especially for the high-order cases where I can refer 
charges, the preponderance of evidence supports that the event 
has occurred, but I am not quite sure whether or not I can get 
beyond a reasonable doubt, they are going to never accept 
Article 15, if I am not the convening authority.
    Chairman Levin. A nonjudicial punishment?
    Colonel King. Yes, sir. They are not----
    Chairman Levin. So your ability to successfully use the 
tool of NJP, in your judgment, is dependent upon, at least in 
some cases, having the power to refer a matter to a general 
court-martial?
    Colonel King. That is correct, sir.
    Chairman Levin. Okay. Captain Coughlin?
    Captain Coughlin. Sir, in my mind, it comes down to a very 
simple matter of trust, and I know we mentioned that earlier 
today. But I want to refer back to what the Chief of Naval 
Operations mentioned in his testimony about this charge of 
command that we use in the Navy, and there is a passage in that 
that refers to trust.
    I would just like to read before you. ``As the commanding 
officer, you must build trust with those officers and sailors 
under your command. You build trust through your character and 
in your actions, which demonstrate professional competence, 
judgment, good sense, and respect for those you lead.''
    Now every person who takes command of a naval vessel reads 
this, acknowledges it, and signs it, and that is credibility 
and trust. I have to be viewed as being trusted by my chain of 
command in the eyes of my crew. That gives me credibility and, 
therefore, leads to good order and discipline.
    Chairman Levin. Thank you. Colonel Martin?
    Colonel Martin. Senator, I would agree with my colleagues 
on the panel that having that ability to refer a case to court-
martial is crucial. Not only to the commander's credibility, 
but we also speak of trust in this matter as well. It is a 
crucial element.
    I do believe exactly what Colonel King said that soldiers 
knowing or understanding that you don't have the authority as a 
commander to refer a case to court-martial, they will never 
take--they will never accept an Article 15.
    Chairman Levin. All right. The commander has a broader goal 
when considering whether to refer a case to a court-martial, 
such as protecting his or her troops and sending a message 
that, for instance, the conduct at issue--sexual misconduct, 
barracks stuff, whatever--will not be tolerated.
    Would you be concerned that professional prosecutors, 
without the responsibilities of a commander, might actually be 
less likely to pursue court-martials in those--in close cases?
    Colonel Martin?
    Colonel Martin. Yes, Senator. I think that because the 
commander is so in tune to discipline and setting standards 
inside of their units that they would fiercely pursue NJP, and 
I don't think that someone outside of the chain of command or a 
staff officer would have that same passion for discipline 
inside of their unit.
    Chairman Levin. Okay. Now we are also saying, my question, 
though, is might a commander be more likely to pursue a court-
martial than even an outside independent officer because of the 
desire of a commander to send a message to his unit?
    Colonel Martin. Yes, Senator. I do believe the commander 
would.
    Chairman Levin. Captain Coughlin?
    Captain Coughlin. Sir, I think it goes to the severity of 
the crime. I mean, there are some crimes that clearly need to 
go to a higher level, and I think most commanders have that 
sense and judgment when to elevate it. When questioned, that is 
where they seek the advice of the SJA.
    Chairman Levin. Okay. Colonel King?
    Colonel King. Sir, my comment on that would be that 
commanders at our level don't even consider judicial economy. I 
think that if we had a separate and distinct panel of civilian 
prosecutors that judicial economy is something that is always 
factored in, whether or not it is worthwhile to try the case. I 
don't even consider that.
    What I consider is, number one, protecting the victim; 
number two, achieving justice for whatever crime was committed; 
and also the message that I send to the thousands of marines 
that are aptly watching what is going on. Even if I fail to 
achieve a conviction at whatever level, I can still send a 
powerful message to them that this kind of conduct, even 
alleged, even not proven, is completely unacceptable.
    Chairman Levin. Colonel Leavitt?
    Colonel Leavitt. Yes, Senator. I could absolutely see the 
scenario where a prosecutor may not choose to prosecute a case 
or recommend prosecuting a case because the likelihood of a 
conviction. However, as a commander, I absolutely want to 
prosecute the case because of the message it sends so that my 
airmen understand that they will be held accountable.
    Then we will let the jury decide what happened in the case 
and whether or not it will be convicted. But that message is so 
important, whereas an independent prosecutor may not see the 
need to take it to trial if the burden--if the proof is not 
necessarily going to lead to a conviction.
    Chairman Levin. Thank you.
    Senator Inhofe.
    Senator Inhofe. Mr. Chairman, I don't think I have ever 
heard four opening statements so precise and specific. I am 
real impressed.
    Of course, with all of your commands that you have had, 
Colonel Martin, including CID, and you, Captain, and of course, 
Colonel Leavitt, as a fellow flight instructor, I know how you 
all feel about discipline.
    Colonel King, I was listening to you. I can tell that you 
are a very well-educated man. Where did you get that education?
    Colonel King. Boomer Sooner, sir.
    Senator Inhofe. Oh, Oklahoma. There you go. [Laughter.]
    I wouldn't expect that you folks have had time, since it 
just came out, to have read and digested the Defense Legal 
Policy Board report. I know you will be doing it, and it is 
certainly appropriate to what our discussion is today.
    I would like just to quote one thing out of it and ask for 
your opinions. The quote is, ``The notion that commanders have 
the ability to deal swiftly, fairly, completely, and visibly 
with all misconduct, both in and out of the field environment, 
is necessary to achieve effective deterrence and discipline. 
Executing fair, prompt military justice reinforces command 
responsibility, authority, and accountability.''
    I would like to ask you, in your view, would creating a 
centralized initial disposition authority with oversight by an 
O-6 Judge Advocate, combined with the centralized authority to 
detail judges and members of courts-martial, impact the 
qualities of portability and agility of the military justice 
system? Then getting back to the four qualities, how would a 
system like this impede your ability to deal with misconduct 
swiftly, fairly, competently, and visibly?
    Can you give me any thoughts on that? Start with you 
Colonel Martin.
    Colonel Martin. Thank you, Senator.
    One of the things that as I think about this, I think about 
a case in question that I had, maybe anecdotally, about one of 
the times when I had to relieve a senior noncommissioned 
officer in my command. What happened was the senior 
noncommissioned officer was having an inappropriate 
relationship with a junior member of the command.
    So, while it wasn't a sexual relationship, it was 
inappropriate because of the rank differential, and my ability 
to deal with that was certainly swift. It gave me the ability 
to send a message, number one, to the victim, the very junior 
enlisted member of that offense, that I took her complaint, 
because she did complain about it, I took her complaint very 
seriously. Just because he was a very senior member, she knew 
that I would act on that, on the issue.
    That spread across my unit. It was very, very transparent, 
and it affected very positively the morale in the unit. So just 
having that ability to affect those is very, very positive.
    Senator Inhofe. Well said. Captain Coughlin?
    Captain Coughlin. Sir, my first thought on that is just 
possibly the logistics behind providing that kind of support in 
dispersed naval forces, and the ability to act quickly by the 
commander is what is going to set the tone and establish those 
conditions.
    Some of this information, depending on it may have a half-
life, but to deal with it quickly is essential.
    Senator Inhofe. That is good. Colonel King?
    Colonel King. Senator, resident in the four folks you see 
sitting right here today is a nexus that I think is important. 
That is, we tell our marines--it comes from our mouths--this is 
the standard we want to hold you to.
    We tell them why we have that standard. These are the 
things that we are going to achieve, and then we hold them to 
that standard. That is actually the same person.
    Right now, we have the tools to do what I just described. 
It is not always precise, but it works, and they know. The 
deterrent value, the prevention of misconduct is actually where 
I know I spend most of my time. I don't want it to occur. So I 
attempt to set the conditions where it can't flourish.
    That is what is most important, and that is what I think we 
need to be very cautious about changing.
    Senator Inhofe. Well said. Colonel Leavitt?
    Colonel Leavitt. Yes, Senator. I believe that the 
commander's ability to issue swift and fair justice is critical 
to enforcing the high standards we set. When we are able to 
enforce those standards, that is when we are able to build 
discipline and trust, and that is when we build combat 
capability, and that is when we have combat effectiveness. That 
is how we become victorious, and that is how we maintain our 
state as the best military in the world.
    I think this portion of it is critical that you allow a 
commander to command by being able to enforce the standards 
they set.
    Senator Inhofe. Yes. Well, thank you.
    Mr. Chairman, I think this has been a really good panel to 
get people on the ground, doing it on a day-to-day basis, as 
opposed to looking at all the theories and all that. So, I 
appreciate your responses very much.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Inhofe.
    Senator Reed.
    Senator Reed. Well, thank you, Mr. Chairman.
    Thank you, ladies and gentlemen, for your service to the 
Nation and to your individual Services.
    Let me put my two questions, and they are not rhetorical. I 
am searching, with your guidance, for answers.
    I commanded a paratrooper company a long time ago. It was 
not mixed gender so this issue of sexual assault was not as 
central as it is today. But I have given Article 15s, and I 
have referred people to general court-martials, and I have seen 
some of my soldiers actually sent to Fort Leavenworth. It was 
not a good day for either one of us.
    There are, I think, two or three issues that I would like 
to explore. First of all, and I say this not rhetorically, but 
how do you separate a chain of command from a legal process in 
the fact that--and I think there is a presumption if we had 
this independent process outside the chain of command, it will 
encourage reporting. It will be much more effective.
    But the reality in a company, particularly is if something 
bad happens, most people know about it. If the company 
commander knows about it last, that is probably the worst thing 
for the company and for the company commander.
    But just in sort of practical detail, if a serious offense, 
even if it is reported through an independent channel, very 
quickly CID agents will show up in the company. Company mates 
will be--I use the term generically, but it applies to 
squadrons and also ships. You will have individual soldiers who 
have to be interviewed.
    Then you will have to take some action as a company 
commander. It might not be the formal referral of charges. Do 
you separate the individuals? Do you transfer an individual out 
of the company, et cetera? Will that be perceived as 
prejudicial or discriminatory or retribution?
    Again, this is the reflection of someone who 30-plus years 
ago, being kind, had to do this, but not in the same context 
today. So your comments, Colonel Martin and then down the row, 
about this issue.
    Colonel Martin. Thank you, Senator.
    I think the anecdote that I gave may suit this question 
very well with my sergeant major and a very junior victim in my 
command. We moved the victim in this case, but I suspended the 
sergeant major of his duties. She moved by her request to go to 
another installation, and I suspended him of his duties.
    I think that responsibility has to lie with the commander, 
and the commander has to make difficult choices because we 
always have to do what is best for our organization. So, that 
is in the forefront of our minds at all time.
    That discipline that we have all talked about and setting 
the tone, those are actions that the commander has to take. So 
separating or bifurcating that process of the command from the 
legal authority, I think, would set us back in discipline.
    Senator Reed. Captain?
    Captain Coughlin. Sir, accountability is such a broad term, 
and I think when you try to separate one element of 
accountability from my responsibility as a commanding officer, 
that would be confusing. I don't think people under my command 
really could list a definite list of what elements of 
accountability did I own. I think you add confusion to the 
chain of command, and a crew of a ship or ships in a squadron 
will eventually wonder who is really doing all of the 
commanding.
    The question about investigation, an outside entity comes 
in, conducts an investigation. I do that. I conduct command 
investigations that are thorough by using the Judge Advocate 
General Manual (JAGMAN), and we are trained on doing that. It 
is not uncommon.
    Senator Reed. Colonel King, briefly?
    Colonel King. Senator, I don't think you can separate it. 
In fact, it is my opinion that if we do separate these two 
things that you are talking about, you are actually going to 
have a significant decrease in reporting. That is my opinion. I 
can't prove a negative, but that is my opinion.
    I would be very hesitant to do this. I know I have read 
some studies in the past year since this has become our number 
one priority that show that reporting in the civilian community 
is even worse. Well, they don't have a chain of command out 
there. So I can't--I am attempting to rationalize that in my 
mind right now.
    I actually think that our commanders' involvement and how 
we have really taken this at issue is going to get after the 
reporting issue because reporting is the bridge to everything. 
It is the bridge to victim services. It is the bridge to 
justice. So it is about reporting.
    You pull those two apart, reporting is going to go down.
    Senator Reed. Let me follow up quickly. Colonel Leavitt, 
your comments on this question, and then I have another 
question which I want to address.
    Colonel Leavitt. Yes, sir. I agree that the command and the 
legal aspect have to be hand-in-hand. For me to be able to 
enforce the standards I have set, I have to be able to take 
action when people don't follow the guidance I give. I have to 
be able to hold people accountable.
    The command team works in conjunction with legal. So I have 
advice on any legal matters from my Judge Advocate.
    Senator Reed. Colonel King, let me go back to your comment 
because there is another--this is part of the complex nature of 
this issue. There are compelling statistics that there are 
numerous cases of improper sexual contact between members of 
the military. Then there are also and I think very compelling 
statistics that a lot of them go unreported.
    When you ask the young marine, the young sailor, the young 
soldier or airman why, it is ``I don't trust the commander. I 
don't trust the whole system.'' I think there is enough there 
not to dismiss that as sort of, well, it is worse in the 
civilian life. The intention of many of the proposals is to 
provide that kind of trust, et cetera.
    So how do you respond to this issue most specifically, and 
if anyone else has a quick comment also, how do you respond to 
this issue of--because it is all about trust. Colonel?
    Colonel King. Sir, I can only speak from my own experience. 
My experience with actually working through sexual assaults is 
actually pretty limited. But in my experience, this is such a 
personal crime. It is so embarrassing.
    That is what in my experience causes the lack of reporting. 
That is the number-one reason. It is embarrassing, sir. You 
have an 18-year-old kid who just wants to do well, who is 
embarrassed by it. That is what causes it.
    Also, sir, in my experience, sir, I have never met a 
commander that wouldn't jump--wouldn't stop time when they hear 
that something like this is occurring. I have never seen that. 
I have never smelled it. I have never heard of it.
    Now I read the newspapers, too, sir, and I see what is 
going on out there. But I don't see it where I work.
    Senator Reed. Anyone else? Captain?
    Captain Coughlin. Yes, sir. Just to add to that, also 
personal experience. My experience is that people under my 
charge trust the leadership. I know that from reading command 
climate surveys, speaking to sailors face-to-face on my ships.
    I think they are uncomfortable, they are not confident with 
the process. They are not as familiar with it as we are. They 
know that these things take a long time, and just the thought 
of going through that process, even if it is swiftly acted upon 
at the command, is, I think, a huge concern.
    Senator Reed. Anyone else have a comment on this? I have 
one final question. I apologize to my colleagues.
    You know it is ultimately about leadership, and that is 
accountability and responsibility. I have no doubt, Colonel, if 
you will let, or even without your knowledge, an intoxicated 
pilot get in one of your aircraft, you would be relieved. 
Colonel, if an intoxicated supply sergeant drove a truck into a 
wall, you would be relieved, even if you had nothing to do with 
that.
    Colonel, same thing, one of your military police drove 80 
miles an hour because they were under the influence. Do you 
feel that the same responsibility would be extracted if there 
were an incident of a serious sexual assault in your unit, 
i.e., you would be relieved almost without question? Colonel?
    Colonel Leavitt. Senator, I believe it is absolutely the 
commander's responsibility to set the climate where people know 
there is zero tolerance for sexual assault and that if anything 
happens, it is absolutely everyone's responsibility to report 
that, to take care of the victim.
    Senator Reed. It is actually everyone's responsibility to 
prevent someone getting in the aircraft who is intoxicated. But 
if it happens, you would be gone. I have no doubt about that, 
or at least I have a sense of that.
    My point is if the chain of command is going to be the 
chain of command, then commanders have to understand pretty 
quickly that there are some things that if it happens, even if 
they had no ability to deter it, they would be responsible for 
it and they would accept it, salute, and say, ``Yes, sir. I 
understand.''
    Colonel King. Sir, a proven sexual assault occurs in my 
command and I don't report it, I am gone. There is no question 
in my mind.
    Captain Coughlin. Yes, sir. Same here, and also if it has 
become known through an investigation that I have tolerated a 
climate that accepts any kind of behavior like that, then I 
should be accountable for that.
    Senator Reed. I presume you concur, Colonel?
    Colonel Martin. Absolutely, Senator.
    Senator Reed. Thank you.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Reed.
    Senator Ayotte.
    Senator Ayotte. Thank you, Mr. Chairman.
    I want to thank the witnesses for being here and for your 
service to our country.
    I wanted to ask Colonel Leavitt whether you have had any 
experience with the special victims' counsel in the Air Force, 
the pilot program?
    Colonel Leavitt. Yes, Senator. I have spoken with--one of 
my prosecutors is a special victims' counsel and we've spoken 
in broad terms.
    He said that it has been very well received, and truly, it 
gives victims a voice. It gives them an understanding of how 
the process works. It makes them feel like someone is on their 
side to help them through the process for them to understand 
what options they have available.
    Senator Ayotte. Because one issue we are struggling with is 
if you look at the recent Sexual Assault Prevention and 
Response (SAPR) report, one of the real fundamental issues is 
that some people aren't coming forward because they have 
expressed that they have heard other victims talk about a 
negative experience in the situation that they went through.
    I wanted to get the impression from the other branches if 
you have any understanding what the Air Force program is and 
what your thought is of their program of having a special 
victims' counsel represent victims within the system?
    Colonel Martin. Thank you, Senator. I will go next.
    In the Army, we have a Special Victims Unit. That Special 
Victims Unit is made up of a sexual assault investigator. It is 
also made up of a special victims prosecutor, and it is also in 
coordination with a victim witness liaison. All of these 
resources are available to the victim to help them through the 
process, establish a rapport, which is actually the foundation 
of our investigation, and then it works very, very well.
    The interview techniques that we have developed in the 
Army, called the Forensic Experimental Trauma Interviews 
technique, where we use a lot of different questioning 
techniques, I think that word has spread. Because I guess I 
watched ``The Invisible War,'' too. So, the CID agent in ``The 
Invisible War'' talks about how we had a mantra where we tried 
to prove, when we were talking to the victim, you disprove it 
that something didn't happen.
    Now we don't do that. We don't take that approach. We spend 
so much time with the victim establishing a rapport, I think 
that spreads, and so, we have more reporting.
    We also see an uptick in victims who initially did a 
restricted report now come forward and want to do an 
unrestricted report.
    Senator Ayotte. Colonel, the one thing I will say is what 
the Air Force has is that the individuals that would be the 
advocate in the Army, are they trained lawyers? I mean, 
meaning, that their pilot has trained lawyers helping victims. 
Do you have the same thing happening in the Army and other 
branches?
    Colonel Martin. Yes, Senator. We have a special victims 
prosecutor who is a trained attorney.
    Senator Ayotte. They represent the person with the same 
authority as the special victims' counsel?
    Colonel Martin. Yes, Senator.
    Senator Ayotte. I would like to understand, if you can get 
me some more information about that because I understood--
Senator Murray and I have a bill that extends what the Air 
Force is doing to every single branch, has 33 cosponsors in the 
U.S. Senate, and it was our understanding that the Air Force 
had this pilot. So if there are similar programs in other 
branches, I would like to get more information on that because 
our understanding is that the Air Force pilot program really 
had somewhat of a unique standing in the Services.
    Colonel Martin. I will certainly provide that to you, 
Senator.
    [The information referred to follows:]

    I would like to clarify that the Army does not have a program 
modeled on the U.S. Air Force Special Victims Counsel. I was referring 
to the Army Special Victim Prosecutor (SVP) program.
    The Army has 23 SVPs with regional responsibilities. These judge 
advocates are individually selected and assigned based on demonstrated 
court-martial trial experience, ability to work with victims and 
ability to train junior counsel. They complete a specially designed 
foundation and annual training program to elevate their level of 
expertise in the investigation and disposition of allegations of sexual 
assault and family violence. This training includes the career 
prosecutor courses offered by the National District Attorneys 
Association and on-the-job training with a civilian special victim unit 
in a large metropolitan city. The SVP's primary mission is to 
investigate and prosecute special victim cases within one's geographic 
area of responsibility. Their secondary mission is to develop a sexual 
assault and family violence training program for investigators and 
trial counsel in their area of responsibility. SVPs are involved in 
every sexual assault and special victim case in their assigned region. 
The SVPs work hand-in-glove with the SAI investigators throughout the 
process.
    As a brigade commander, I look forward to the results of the Air 
Force's special victim counsel pilot program and recognize the value of 
all efforts that enhance victim care and satisfaction. Within my 
Service, the Army is engaged in hiring several hundred victim advocates 
as directed by law. We are also actively training our legal assistance 
attorneys and victim-witness liaisons to better advocate on behalf of 
victims. The Army has 300 legal assistance attorneys currently 
assisting and advocating for victims within a confidential attorney-
client relationship.
    As a Military Police Commander, I have seen firsthand the 
professional, comprehensive services available to victims of sexual 
offenses. I am confident that the Army's Special Victim Capability 
consisting of specially selected and trained prosecutors, 
investigators, paralegals and victim witness personnel working as a 
coordinated team is the best opportunity for effective, sustainable 
victim care.

    Senator Ayotte. Thank you.
    Colonel Leavitt. Senator, just one thing to add in terms of 
our process. The special victims' counsel is separate from the 
prosecution chain. They are not part of the prosecution for 
that sexual assault. They are there purely for support for the 
victim.
    Senator Ayotte. That is a huge difference. Of course, 
absolutely. In fact, if you are in the prosecution chain, then 
you have a different purpose than if you are there just to 
solely advocate for the victim and who may have a different 
opinion on the plea result in a case, who may want their 
counsel to express that opinion to the prosecutor who has a 
different opinion.
    Victims having their own voice is really important. It is 
something that has happened in certainly the civilian sector. I 
appreciate your clarifying that distinction for me because my 
vision of it, as I didn't understand it, for how it works in 
the Army is much more what happens in the Air Force.
    Because I think victims can have very different feelings 
about a disposition and also if they feel they are part of 
the--if they are just treated within the prosecution, that is 
different than someone representing just their interests.
    I wanted to ask about the situation at Lackland Air Force 
Base; can you help me, Colonel, to understand what that tells 
us about some of the issues we have with basic training, the 
culture during basic training, and the fact that there were 
certainly basically victims there that were either through 
inappropriate sexual contact or, in some instances, criminal 
rape type situations in Lackland. What is your view on this 
issue with regard to basic training, and how much of a problem 
do you think this is?
    Do you all think we should be prohibiting sexual contact 
between military instructors and trainees during basic 
training? Because I see this as a situation where, as you are 
in basic training, you are very new, most of them are young, 
and they want to succeed.
    If there is contact between the person that they are 
reporting to that is training them, then there is a real 
coercion issue there. Could you give me some insight on that, 
what you think?
    Colonel Leavitt. Senator, I haven't been to Lackland 
anytime recently. I am familiar from reading the papers. But my 
view is that any kind of climate or situation that allows 
sexual assault or rape to happen is completely unacceptable, 
and people should be held accountable. That kind of climate, 
there should be zero tolerance.
    Senator Ayotte. What about sexual conduct in general--
doesn't that create a potential for coercion while someone is 
in basic training between someone who is a trainee and the 
person that they are reporting to? I mean, what kind of culture 
would that create within that unit within the trainees as well?
    Colonel King. Senator, any form of contact that wasn't 
professional, that wasn't part of the curriculum, is contrary 
to good order and discipline. I will tell you upfront I have no 
problem with what you are proposing. I think it will help.
    But I also say that we do that now. We just, obviously, 
messed up in that one case. I can only speak from my personal 
experience. My personal experience, traveling through the 
Marine Corps, is that the level of institutional control, boot 
camp, when it is higher, the marines are actually safer.
    That is what I have seen with my own eyes, and that is a 
little bit contrary to the point you are making, but that is 
what I have seen.
    Captain Coughlin. Ma'am, certainly at a basic training 
environment, there should be a huge level of control and 
regimentation, and there is also a chain of command, just like 
any place else. In fact, if you go to the Navy's basic training 
site, it mirrors ships and divisions and departments on ships.
    There is a clear chain of command. All those same rules 
should apply, and anything inappropriate is obviously a 
violation.
    Colonel Martin. Senator, I would agree. I would concur. I 
have no issue with what you are proposing either. I don't 
believe there should be a sexual relationship. It is not the 
place. That is not why they are there. It does erode discipline 
in that environment.
    Senator Ayotte. Thank you all. Appreciate it.
    Chairman Levin. Thank you, Senator Ayotte.
    Senator McCaskill.
    Senator McCaskill. Thank you.
    Thank you all for being here.
    I am a little taken aback. It sounds like you all are very 
bullish on the status quo, just listening to your testimony 
from a distance. I just want to tell you that with this Senator 
and I think other Senators, the status quo is not acceptable.
    I will start with that, and let me first ask all four of 
you, have any of you referred a sexual assault case for a 
court-martial? Start with Colonel Martin.
    Colonel Martin. Yes, Senator. I have.
    Senator McCaskill. Captain Coughlin?
    Captain Coughlin. No, ma'am. I have not.
    Senator McCaskill. Colonel King?
    Colonel King. Yes, ma'am.
    Senator McCaskill. Colonel Leavitt?
    Colonel Leavitt. Yes, Senator. I have.
    Senator McCaskill. Okay. Have any of you referred a sexual 
assault case for court-martial when your JAG officer did not 
recommend it?
    Colonel Martin. Yes, Senator. I have.
    Senator McCaskill. You have? Colonel King? No? Colonel 
Leavitt?
    Colonel Leavitt. No, ma'am.
    Senator McCaskill. Has there been an instance where your 
JAG has recommended a court-martial, and you have instead taken 
an Article 15 and done a NJP. Colonel Martin?
    Colonel Martin. No, Senator.
    Captain Coughlin. No, ma'am.
    Senator McCaskill. Colonel King?
    Colonel King. For a sexual assault, ma'am?
    Senator McCaskill. Yes.
    Colonel King. No, ma'am.
    Senator McCaskill. Colonel Leavitt?
    Colonel Leavitt. No, Senator.
    Senator McCaskill. Okay. The reason I asked this is because 
there is a difference between discipline and punishment, and I 
see that Article 15 and NJP, I certainly appreciated the points 
that Senator Reed was making with you on this regard. But one 
of the issues here is removing the problem versus punishing the 
felon.
    Do you think, any of you think that there may be a tendency 
for commanders to say, okay, I have enough on him over here to 
go to a court-martial. But maybe the court-martial is not a 
slam dunk, and I want to remove the problem. So let us just 
revert to an Article 15, get him out of here. Then I remove the 
problem, and then we don't have the problem in existence 
anymore.
    Colonel Leavitt. No, Senator. Absolutely not.
    If I have a case of sexual assault, I absolutely want to 
prosecute it. I want it to be visible. I want the unit to 
understand that there is absolutely zero tolerance. So, if I 
just make the problem go away, I have eroded the trust and 
confidence that that unit has in its leadership.
    So I do not see a case that that would happen.
    Senator McCaskill. Colonel King?
    Colonel King. Senator, I am not a lawyer, but I have had 
somewhat legal training, and I have done a couple of court-
martials. What I have learned with regards to sexual assault is 
these are hard to prove because they normally revolve around 
whether or not consent was given.
    Senator McCaskill. It is about believability, isn't it?
    Colonel King. It is, and that is----
    Senator McCaskill. It is about the finders of the facts 
being able to hear the testimony in a courtroom and decide who 
is telling the truth.
    Colonel King. Yes, ma'am.
    Senator McCaskill. Because you don't have an opportunity to 
talk to that victim, do you?
    Colonel King. Yes, ma'am. I don't like that, but it is 
absolutely true. In many cases, I can get to where--I can get 
above the 51 percent where I can prefer charges, but I can 
never get above 90 percent. I just can't. There is not enough 
evidence.
    Senator McCaskill. Well, what is the 51 percent and the 90 
percent? What are you referring to?
    Colonel King. Normally, ma'am, I would decide that I can 
prefer charges when one of three things happen. The findings of 
a formal investigation. So an investigation comes back from 
NCIS that says this occurred.
    The conviction of a criminal court out in town or the 
findings of a civil case out in town. Again, that is 
preponderance of the evidence.
    Or when just all the evidence as I took it in got me to 
believe that, you know what, it is more likely this occurred 
than it didn't occur. When I reach that level, I am comfortable 
with sending charges forward.
    Senator McCaskill. Okay, but you are saying that you have 
never disagreed with your professional lawyers who have made 
recommendations on these cases?
    Colonel King. No, Senator.
    Senator McCaskill. Okay. When you decide to do an Article 
15, for whatever reason, a NJP as opposed to a court-martial, 
have any of you ever had an opportunity to talk to the victim 
about that before you did it?
    Captain Coughlin. Ma'am, depending on the crime, we have a 
process on the----
    Senator McCaskill. We are just talking about sexual assault 
today.
    Captain Coughlin. Okay. No, ma'am. I have not.
    Senator McCaskill. Anybody ever talk to a victim before 
doing an Article 15 in lieu of a court-martial? No. Don't you 
think you should? Don't you think that victim at that point--I 
mean, this is a huge decision you are making.
    One of the things we are struggling with here is how many 
cases are going to trial versus how many are reported. We don't 
know many incidents there are because all we know is how many 
have been reported because the only thing that you guys collect 
is sexual contact, unwanted sexual contact. Well, that can be a 
far cry from a rape.
    If we know there have only been 3,300 or so many reported 
and if we only know there has been several hundred of that that 
have gone to trial, the huge difference there, a lot of that is 
NJP. A lot of that is Article 15. But I don't sense that the 
victim is being consulted about this momentous decision to 
avoid a criminal conviction that will mean prison versus a 
demotion or 60 days without pay or even an administrative 
separation from the military.
    Colonel Leavitt. Senator, I can only speak for the 4th 
Fighter Wing specifically. Since January 2012, we have had six 
unrestricted cases. Five of those either have gone or are going 
to courts-martial. The only one that did not was when the 
victim recanted.
    So, under oath, the individual swore that it was consensual 
in all instances. So NJP was never even considered.
    Senator McCaskill. Anybody who had an Article 15 where it 
might have been appropriate to talk to the victim before you 
did it? No?
    Well, you see the point I am making? I like it, I mean, 
believe me, when I was a prosecutor, there were cases that fell 
apart for reasons that were not within the control of the 
victim, and I would have liked to have a backup of something I 
could do to get on this guy's record because very rarely does 
anybody do this once or twice.
    I want to ask you this, do you all feel like you have had 
enough training about the difference between sexual harassment 
and sexual assault?
    Colonel Martin. Yes, Senator. I do.
    Captain Coughlin. Yes, Senator.
    Senator McCaskill. You do?
    Colonel King. Yes, ma'am.
    Senator McCaskill. I would tell you--and I know I am out of 
time, I just want to say this on the record. General Franklin, 
in the Aviano case, when he felt compelled to justify what he 
had done, he wrote--have you all read his letter that he wrote?
    I recommend you read it because it was astoundingly 
ignorant. He opened it by stating that she didn't get a ride 
home when she had a chance. Are you fricking kidding me? That 
that is somehow relevant to whether or not he crawled in bed 
with her and tried to have sex with her?
    I mean, that was his first thing he started recounting, and 
what a great husband he was and how their marriage was picture 
perfect. All of this completely irrelevant to whether or not he 
committed the crime.
    So, if you are making these decisions, which you are, and 
if you have the ability to look at these cases, I recommend his 
letter to you as a poster case of a lack of training and 
understanding the nature of sexual assault. You can have a 
perfect marriage and be a predator, and believe me, there 
aren't very many wives that step forward and admit that their 
husbands, and there aren't very many husbands that would step 
forward and admit that their wives were what is being accused 
of them being.
    It is not unusual for those people to come forward and try 
to justify that they were innocent, I just want to make sure. 
You all are here, and you are on the front lines. I want to 
make sure you read that letter, and if you need it--I am sure 
you can get it through your command. But if you need it, my 
office would be happy to provide it to you.
    Thank you all for being here.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator McCaskill.
    Just for the record, a number of times the NJP acronym has 
been used. I think we all know what it means. You all know what 
it means. But just for the record, that is nonjudicial 
punishment.
    Okay. Senator Gillibrand?
    Senator Gillibrand. Thank you all for being here today. 
Thank you for your service.
    I have been disturbed by some of the testimony in this 
panel. There seems to be a lack of awareness of incidents where 
a victim does not feel he or she has received justice and does 
not feel that they can go to their command because they feel 
they will either be marginalized, retaliated against, or 
blamed.
    There are so many instances of this, it is astounding to me 
that you don't know them personally or haven't seen them. I 
don't know have you seen ``The Invisible War.'' I don't know 
what due diligence you have done, but there is a real problem. 
You have 26,000 cases of unwanted sexual contact, sexual 
assault, or rape. As Senator McCaskill pointed out, we don't 
know how many of each.
    We have 3,300 reported cases, and of the 3,300 reported 
cases just from last year alone, only 1 in 10 go to trial. Once 
it goes to trial, we have a pretty good conviction rate. But 
why is 1 in 10 going to trial, and why is only 1 in 100 cases 
actually resulting in conviction? We have a serious issue with 
a victim's willingness to report.
    Colonel Leavitt, I recently learned of a disturbing case of 
Airman First Class Jessica Hinves. She reported that she was 
raped by a coworker who broke into her room at 3 a.m.
    She said, ``Two days before the court hearing, his 
commander called me at a conference at the JAG office, and he 
said he didn't believe that the offender acted like a 
gentleman, but there wasn't reason to prosecute. I was 
speechless. Legal had been telling me this was going through 
court. We had the court date set for several months, and 2 days 
before, his commander stopped it.
    ``I later found out the commander had no legal education or 
background, and he had only been in command for 4 days.''
    Her rapist was given the award for airman of the quarter, 
and she was transferred to another base. Please explain to me 
how this incident would provide any victim of sexual assault in 
the military comfort that if they are willing to come forward, 
to have the courage to tell their story, report that rape, that 
they have any chance of receiving impartial justice when the 
decision to prosecute is left within the chain of command?
    Now your own personal record sounds very strong, Colonel, 
but I don't know if that is true for everyone in your position.
    Colonel Leavitt. Yes, Senator. I am familiar with the case, 
happened a few years ago, and I have a little bit of summary 
information. I was not there. I don't know why the commander 
chose what he did.
    However, I feel it is very important that we set a climate 
so people feel comfortable to come forward because I was very 
clear. In terms of ``The Invisible War,'' when our new chief 
took command, he quickly made this a huge emphasis item, and it 
was very, very clear. Early November, I called in all of my 
commanders, all of my first sergeants, and together in a 
theater, we all watched ``The Invisible War.''
    We talked in detail about what we can do, how we can set an 
environment where people feel it is okay to come forward 
because I was crystal clear with them. I am not judging you by 
whether or not you have sexual assaults. I am judging you by 
what you do if there is one.
    You need to set the climate to make sure that everyone 
knows it is unacceptable. If it happens, we will take care of 
the victim, and we will bring justice to the perpetrator.
    Senator Gillibrand. If 62 percent of the victims who have 
actually come forward to report a sexual assault or rape 
believe they have been retaliated against, how do you think you 
are going to instill that trust?
    Colonel Leavitt. I think you have to build that trust, 
ma'am. That is what I have been working on since I took command 
a year ago, is trying to build that trust.
    Senator Gillibrand. How long do you think that will take? 
How many more victims have to suffer through a rape and a 
sexual assault until you rebuild that trust?
    Why wouldn't you let someone who is experienced to make 
that decision, who is a prosecutor, so that you have an 
objective reviewer, someone who can't be biased in any way? Why 
wouldn't you allow that to happen, to instill better discipline 
and order? Because if you don't have trust, you have nothing.
    Colonel Leavitt. Yes, Senator. I truly believe that I need 
to be able to back up my words. So when I tell my commanders 
that there is zero tolerance, that I will not tolerate any 
sexual assault, if I can't back it up, if I have to now turn to 
a separate entity to say now I really want to prosecute, please 
do that.
    Because there could be cases where my legal advice given to 
me is we shouldn't prosecute because we don't have enough 
evidence, but I need to send that message that it is 
unacceptable because people in the unit know. They know what 
happened.
    Even though we may not get a conviction, it is very 
important to send that message that there is no tolerance. As a 
commander, I need to be able to do that, even if legal is not 
advising to do so.
    Senator Gillibrand. Colonel King, you said that you have 
never seen this instance of a commander not moving forward. In 
2006, not a mile and a half from where we sit today, Marine 
Lieutenant Elle Helmer was attacked and raped by a superior 
officer. According to Marine Lieutenant Helmer, she immediately 
appealed to her rapist's supervisor, who refused to press 
charges or significantly punish the assailant.
    She has reported that he said, ``You are from Colorado. You 
are tough. You need to pick yourself up and dust yourself off. 
I can't babysit you all the time.''
    In this instance of extreme sexual violence, not only was 
Lieutenant Helmer's attacker not prosecuted, she was 
investigated for public intoxication and conduct unbecoming. 
She was ultimately forced to leave the Marine Corps. Her 
accused rapist remains a marine in good standing.
    Given these kind of stories, this one from Lieutenant 
Helmer, the statements from your commander, Marine Corps 
General Amos, saying that sexual assault victims do not report 
because, ``They don't trust us. They don't trust the command. 
They don't trust the leadership.'' Even the Commandant of the 
Marine Corps say the trust of the chain of command does not 
exist now.
    Do you not agree that this must have a chilling effect on 
reporting?
    Colonel King. Senator, I wasn't at 8th and I Street. I 
can't speak to those circumstances. What I do know about it is, 
is that there were--there was collateral misconduct on the part 
of some of the members, and that was what was adjudicated. I 
can't speak to the charge of sexual assault.
    What I can tell you is what we are doing in my unit. We are 
doing ethical decision games. We do have a positive command 
climate. Senator, and my unit is kind of unique in the Marine 
Corps. I have a little less than 3,000 marines. I have 16 
percent women. That is a lot, especially in the Marine Corps. 
The Marine Corps has about 7 percent women.
    I have a significant amount of women in my unit. I have two 
cases right now, two. I know, just from reading the literature 
that is out there, that I have a reporting issue. I am not 
saying I don't have a reporting issue. I am going after that. 
But those are the numbers that I work with right now.
    Senator Gillibrand. Thank you.
    Colonel King. Thank you.
    Chairman Levin. Thank you, Senator Gillibrand.
    Senator Blumenthal.
    Senator Blumenthal. Colonel King, in one of your answers, 
you describe the way you make a decision about whether to 
pursue charges. I know you are not a lawyer, and by the way, 
lawyers are sometimes confused about these standards as well. 
But you said that you looked at whether it was more likely that 
it happened or not, or whether there was a preponderance of 
evidence, or whether you were 90 percent sure.
    The 90 percent sure, I guess, is guilt beyond a reasonable 
doubt. Those are three separate, different standards. I guess 
one of the reasons why a lot of folks feel that it makes sense 
to have a trained prosecutor making these decisions rather than 
the commanding officer is that the standards are easily 
confused. They are difficult to discern.
    I have heard the charge given to the jury about reasonable 
doubt, and I must tell you, I wonder sometimes whether the jury 
understands it, not to mention sometimes the judges in the way 
that they describe it.
    I wonder whether you can tell us, and this is a question 
really for all the members of the panel, to pursue Senator 
Gillibrand's line of questioning, whether maybe somebody who 
does this for a living, so to speak, who day-in and day-out 
thinks about what those standards mean, sees a lot of different 
cases, makes these decisions every day, and maybe consults with 
you. But at the end of the day says this is how we can win this 
case. We can win it. We can pursue it. Even if we are not sure 
we can win it, after consulting with the commanding officer of 
the unit, this will serve the good order and discipline of the 
unit?
    Colonel King. Senator, thank you for that question. I will 
start off, if you don't mind.
    What I meant to say was when I am considering an alleged 
act of misconduct of any kind, it has to get above a 
preponderance of the evidence in order for me to refer charges 
to a court-martial. That is a barrier that I am not making up. 
That is in the manual for courts-martial, and it is generally 
seen as 51 percent.
    There are three ways I can get there, and those are the 
ways that I laid out. But that is a long ways between a 
preponderance of the evidence and beyond a reasonable doubt, 
which is a very, very high bar. A lot of cases of misconduct 
and, unfortunately, a lot of cases of alleged sexual assault 
fall into that gray area. That is the problem that we have with 
our cases.
    But to get specifically to your question, sir, with 
respect, I don't agree with you. I don't agree. I think that 
having that authority resident inside of the commander who is 
responsible for the discipline of that unit is what is 
required.
    Thank you.
    Senator Blumenthal. Let me ask you this. Suppose there were 
a fund, a restitution fund to compensate victims and maybe 
encourage them to come forward. Right now, as I said earlier 
today, somebody is entitled to restitution if their car is hit 
by a truck in some cases.
    Wouldn't it make sense to have a victim or survivor be 
entitled to some kind of compensation? Anybody, I will open it 
to anyone.
    Captain Coughlin. Sir, I think you are asking about 
incentivizing the reporting through monetary gain, and my 
intuition tells me that because of the severity of this crime--
and I have asked the SARCs in Norfolk at the Fleet and Family 
Support Center just how severe is this crime? It is orders of 
magnitude greater than any other kind of crime you commit to 
somebody.
    So I personally don't think any kind of compensation would 
encourage people much more to come forward. But----
    Senator Blumenthal. Don't you think maybe they are entitled 
to it because of the harm they have suffered?
    Captain Coughlin. They may be entitled to something, but 
they would have to come forward, and we would have to 
investigate and go through that process in order to give them 
that entitlement, I would think.
    Senator Blumenthal. Well, no, I am not talking about 
rewarding them for reporting. I am talking about if there is, 
for example, a court-martial and conviction or even if there is 
some discipline. In other words, a result, an adjudicated 
result, not just an allegation.
    Captain Coughlin. I think that would get back to my role in 
that process, and again, I am not an expert on this either. But 
as long as I am viewed as the commander, as being central to 
that process and the one that is accountable for solving the 
problem, I think that is what it comes back to, any kind of 
deviation from what we have right now.
    Senator Blumenthal. Let me ask you this. How about some 
kind of bill of rights for victims or survivors so that if 
there is a delay, if their credibility is challenged, if their 
sexual history is raised, they have some ability to be 
represented and to have a right to redress?
    Captain Coughlin. Yes, sir. I think they deserve all the 
rights that we can afford them. They have rights now, and there 
is a process now that through victim advocacy and the SARC 
system. I think no matter what you call it, they have to 
believe it, ultimately, in order to come forward.
    Senator Blumenthal. They have to believe that their rights 
will be vindicated?
    Captain Coughlin. Yes, sir.
    Senator Blumenthal. Wouldn't you agree that right now there 
is that lack of credibility and trust?
    Captain Coughlin. I think it depends on the unit. Again, I 
can only speak to my command, and I don't think I have a--I 
can't prove it. I can't prove there is something going on right 
now that is not being reported.
    Senator Gillibrand. It is being reported.
    Senator Blumenthal. We know from the numbers, though, and 
you do, that there is a lack of reporting. Doesn't that reflect 
also a lack of trust and credibility?
    Captain Coughlin. Yes, sir.
    Senator Blumenthal. Anybody disagree?
    Colonel King. I don't disagree, but I will make the point 
it doesn't only reflect just that. It could also reflect the 
nature of the crime.
    Senator Blumenthal. Which raises the issue of 
embarrassment----
    Colonel King. This crime is so personal----
    Senator Blumenthal. Embarrassment, shame, which you 
mentioned earlier.
    Colonel King. Right. I have done a cursory look at 
universities, for example. They have even worse numbers of 
reporting. Other institutions, cities, they have the same. So 
what is that a lack of trust in?
    Senator Blumenthal. So you may be absolutely right and 
Senator Gillibrand has just pointed my attention to these 
graphs on victim reporting, which reflect perhaps a lower rate 
of reporting than other institutions. But the fact of the 
matter is the rate is low, and the Commandant of the Marine 
Corps pointed to the fact that it has increased 31 percent, 
which he cited as progress. I agree.
    He said, and I also agree, that eventually the numbers of 
reporting and the numbers of crime will meet each other. 
Hopefully, the numbers of criminal incidents will come down, 
and the numbers of reporting will rise, which will eventually 
produce better reporting and more deterrence. Because you can't 
have reporting--you can't have prosecution without reporting. 
You can't have deterrence without prosecution.
    I think you would agree, would you not, that deterrence is 
a very powerful means, the fear of punishment?
    Colonel King. Without question, Senator.
    Senator Blumenthal. My time has expired. I thank the 
chairman.
    Thank you all for your service and for your dedication to 
dealing with this problem.
    Thank you.
    Chairman Levin. Thank you, Senator Blumenthal.
    Senator Donnelly.
    Senator Donnelly. Thank you, Mr. Chairman.
    Thank you all for your service.
    Just to follow up, do you think it is easier for a member 
of your command to tell someone else about a sexual assault 
rather than their commander, who they live with every day and 
who they see every day, that they might be more embarrassed to 
tell you than to tell a victims assistance person?
    Captain Coughlin. Sir, there are a lot of ways of reporting 
this, not just through the chain of command. You can make a 911 
call. There is a help line.
    Senator Donnelly. Right.
    Captain Coughlin. I think we are getting that training out 
there and those resources available, and I don't think there 
is--it depends on the level of trust again, whether a member is 
going to go right to their chain of command. That is certainly 
the easiest way to do it, but there are many other ways to 
report.
    Senator Donnelly. Do you feel that it would make--it 
reflects that a commander is less of a commander because you 
don't have full responsibility for this process?
    Captain Coughlin. Yes, sir. I think I need full 
responsibility and accountability for any form of welfare for 
somebody in my command.
    Senator Donnelly. Well, then let me follow up with, and 
this isn't to give you a hard time, but the legal training that 
you then have. What legal training do you have?
    Captain Coughlin. At all the command schools I have gone to 
in my career, essentially in the Navy, every time you go to a 
ship in a different level of leadership, you go through a 
pipeline, depending on the ship you are going to. It all 
includes legal training.
    You actually do case studies, and you do JAGMAN cases, and 
you have a handbook and you have resources available to you.
    Senator Donnelly. How does it make you less of a commander 
to not have full responsibility for this?
    Captain Coughlin. Because my job is to be accountable for 
everything in this command, all forms of welfare for my crew. 
So whether it is safe navigation or it is proper healthcare or 
pay problems or violent crimes, it all falls within the 
commanding officer's responsibility and accountability to 
solve.
    Senator Donnelly. What type of training do you give your 
sailors in regards to sexual assault and how serious this is 
taken? This would be for all of you. How do you get the message 
across when we have seen so many awful cases? How do you get 
the message across that this is serious?
    Captain Coughlin. Well, sir, we have instituted a new 
method of rolling out training to the fleet. We have had the 
SAPR-L leadership training at that level, then the SAPR fleet 
wide, and these are targeted at small groups.
    It is video driven. There are vignettes. There are case 
studies. There is participation. It is very interactive. It is 
facilitated by fleet concentration area SARC, professionally 
trained people.
    I feel it is very effective. I feel like junior sailors 
understand methods of reporting, the severity of this crime, 
and how they can get help if they need it.
    Senator Donnelly. Colonel Martin?
    Colonel Martin. Yes, Senator. I think one of the most 
effective training methods that we used was the viewing of 
``The Invisible War.'' As an investigative unit watching that, 
and then it was amazing to me how many of my special agents 
still questioned the victim's response.
    I think what was very important as we watched that movie 
was to talk about the lack of trust that the victims had for 
the chain of command, to talk about how they felt revictimized, 
especially in our area, in the investigation of the crime. What 
was very important to us and what we spent a great deal of time 
on is the interview technique and how we treat victims and how 
we believe every victim should be treated with respect during 
the investigative process. Very powerful.
    Senator Donnelly. Let me ask you this. Okay, so they have 
watched the movie. Are there any documents that they sign off, 
``Hey, I have read this? I understand the serious nature of 
this.'' Or you mentioned that even after watching the movie, 
some of the folks questioned the validity of some of the 
claims.
    I don't want to put words in your mouth, but how more than 
just watching that movie is the point driven home?
    Colonel Martin. Senator, it is not just watching the movie. 
It is the discussion that goes on while the movie and then 
after the movie is being played. That discussion about how we 
treat victims and even in our case how we investigate, how we 
interview victims was very, very powerful.
    We have changed significantly in the criminal investigation 
role in how we interview victims. We have gone from a system 
where we put the blame on the victim or try to make the victim 
tell us specifically what happened all the time. Instead, what 
we do now is we try to build that rapport with the victim, and 
so it establishes a trust in the system that we can actually 
get to what happened, make her or him feel comfortable.
    Senator Donnelly. Is there a class or classes given, for 
instance, a group gets to one of the forts, do they have a 
class on this? This is critical and serious. This is a sacred 
obligation to have one another's back, and we will not stand 
for that being violated.
    Is there any formal process that you use?
    Colonel Martin. Yes, Senator. That message comes from me, 
the commander of that unit.
    Senator Donnelly. Is there any formal process that you use. 
Hey, here is what I told them. Here is the way the Army does 
it. Here is step one, two, three, four.
    I mean, you know you tell them this is serious. Then they 
watch the movie, and then they are done. Is there anything more 
formal than that?
    Colonel King. Senator, I can tell you from a Marine Corps 
perspective, we have what we call ``Take a Stand'' training, 
and that is every noncommissioned officer (NCO) in the Marine 
Corps, and the Army has something that is very similar to it. 
It is about 60,000 guys go to 40 hours of training a week.
    That is a significant training commitment. I can name a 
handful of other things that are that significant. We also have 
command team training. So command team is commander, sergeant 
major, and whoever else he directs, chaplain. I always bring my 
chaplain with me. That is where we get about another week's 
worth of training that is specified for the command teams.
    Following the ``Take a Stand'' and the command team 
training, we have all-hands training, and that is just what it 
sounds like. Get in a theater, let us talk about this for an 
hour.
    You heard the Commandant mention his campaign plan. During 
Phase 1, he even upped that ante. All 85 general officers were 
brought to Quantico. I have never heard of that before. I have 
never heard of it since. They had one subject. It was sexual 
assault.
    So he started by reading them his white letter, talking to 
all of his general officers, sending them back out, and then 
making 60,000 NCOs take ``Take a Stand,'' which is a formal 
training continuum, do the command team training, and do the 
all-hands training.
    Senator Donnelly. You feel confident every marine from here 
to there has been fully immersed in that culture to tell them 
no more?
    Colonel King. Above 95 percent, yes, Senator.
    Senator Donnelly. Okay. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much.
    Senator Kaine.
    Senator Kaine. Thank you, Mr. Chairman.
    I think this has been a helpful panel, but I feel a little 
bit of it has gotten into kind of a tug of war over your 
reactions to proposals that we might make on this side of the 
aisle, and that is as it ought to be. I want to set aside any 
proposals from this side of the dais and ask you just to be 
problem solvers with us here and not to talk about what is 
being done, but just to engage your problem-solving skills 
because you are dealing with folks on the front line all the 
time.
    Colonel King said reporting is key. The key to this thing 
is reporting. I think a number of the other Senators have said 
the same thing throughout the course of the panel. But the 
stats that were given from the DOD survey show that this is--if 
reporting is the key, that we clearly have a lot of problems.
    Seven out of eight people do not report. Seven out of eight 
who have an experience of unwanted sexual contact do not 
report, and 90 percent of them report that it is either because 
of fear of retaliation or the negative experience of other 
victims that they have seen. That they are not treated right or 
they are not treated significantly.
    Of the one of eight who do report, 62 percent say they 
experience some form of retaliation, 38 percent do not. So if 
reporting is key, and I think we all believe that to be the 
case, and if we are not likely to solve this problem, absent a 
culture that allows reporting to occur more significantly, 
based on your own experience in dealing with your people in 
each of your Service branches, what is the reason for the lack 
of reporting?
    What do you think can be done that will make a culture or 
create a culture where reporting is easier for folks to do?
    Captain Coughlin. Sir, a couple of thoughts come to mind 
about the retaliation, which is preventing the reporting, and I 
don't think we have had enough time yet to see the effect of 
the expedited transfer option by the victim. I think once that 
starts being leveraged and victims know that is what is going 
to happen, I think that is going to reduce some retaliation. It 
should reduce all of it if you transfer them swiftly.
    Another option is military protective orders. Really use 
them. Really enforce them and keep the people retaliating away 
from a victim.
    Senator Kaine. Other thoughts?
    Colonel Martin. Just to key on that, too, is you must set 
the condition in your command where others know that 
retaliation will never be tolerated and set a zero tolerance 
for retaliation as well.
    Senator Kaine. Colonel King or Colonel Leavitt?
    Colonel Leavitt. Yes, Senator. I agree that there has to be 
a climate, a climate where victims feel that they can come 
forward, and command needs to understand at all levels that 
they will be held accountable if they do not identify sexual 
assaults when they happen.
    Now there are a lot of other avenues, like, in our case, 
our SARC. She is very visible throughout our wing. She briefs 
at every ride start, at every first-term airman center. I mean, 
she briefs at unit level. She is out and about and visible.
    On every marquee on my base, it cycles through, and one of 
the things that cycles through is ``Do you need to talk to the 
SARC?'' with her number. It is going to take some time. We are 
trying to get the word out. We are trying to change that 
climate to make sure people understand, victims understand they 
can come forward. We will take care of them, and we will hold 
people accountable.
    Senator Kaine. Colonel Leavitt, real quick before Colonel 
King answers. The special victims' counsel pilot project within 
the Air Force, maybe one of the fears of reporting is the fear 
that you are going to be isolated and alone. You could be 
ostracized. The retaliation may not be from command, but it may 
be from folks within your unit if you report.
    Is the structure of the special victims' counsel set up 
to--so that a victim knows, well, I have an ally. I have an 
advocate. I am not going to be completely isolated if I have 
somebody going through this with me?
    Colonel Leavitt. Yes, Senator. The special victims' counsel 
does exactly that. I mentioned it gives the victim a voice. It 
also empowers them. It helps them understand the rapid 
transfer, that that option is available.
    It helps them understand that maybe I should go 
unrestricted because they are offered the special victims' 
counsel whether it is a restricted or unrestricted report. What 
we have seen is the number of restricted cases that shift into 
unrestricted has increased when they are able to talk to a 
special victims' counsel and understand what options they have 
available and how the whole process works.
    So we have----
    Senator Kaine. Just to make sure I--because this is new 
terminology to me. This is my first instance of dealing with 
the UCMJ-type setup. Somebody comes in and makes a restricted 
complaint, meaning I want to tell you about it, but I don't 
really want it known other than in our conversation.
    But then as the victim who describes what has happened gets 
more comfortable with what the process will be, you have seen 
in the special victims' counsel scenario that they become more 
willing to go ahead and make it an unrestricted complaint that 
would be known within the chain of command?
    Colonel Leavitt. Yes, Senator. Because whether they make a 
restricted or unrestricted case, they are offered special 
victims' counsel. Even with the restricted report, they can 
still have that ally, that expert who can help them through the 
process. Once they understand it, then they have been more 
willing to make it unrestricted, and then we are able to 
prosecute.
    Senator Kaine. Colonel King, how about your thoughts about 
how to fix this, setting aside anything we have proposed to fix 
it?
    Colonel King. You told us to do problem-solving, right, 
Senator? You should have seen me when I was 18. I knew 
everything, and I really couldn't be told anything. Senator, I 
have a regiment full of those guys right now.
    Around 60 or 70 percent of my ranks are young men and women 
who are right out of high school who are bullet proof. When I 
hear terms, Senator, like the chain of command is retaliating, 
what I think that that mostly means is peer pressure. I 
remember what peer pressure felt like. I have two teenage kids 
right now, and that is front and foremost in their world.
    So they don't want to be different. These are--they have 
volunteered to wear the Nation's cloth. They don't want to be 
different. Anything that makes them different feels like 
retaliation.
    Again, I can only speak from my own experience. I have 
never seen the chain of command retaliate, and I haven't done 
anything else my entire adult life.
    Senator Kaine. Just to be fair, Mr. Chairman, the stats 
reported in the DOD report do not suggest fear of retaliation 
from the chain of command. It is just fear of retaliation 
generally. So that could encompass what you are saying.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Kaine.
    Senator King.
    Senator King. Colonel King, you used the words that were 
the first words of my note for my first question, which is peer 
pressure. I am not asking for policy or prescriptions, but just 
for your analysis of what is going on in the field right now. 
Is the peer pressure against sexual assault, or is it against 
reporting sexual assault?
    Try to tell me what you are hearing and seeing.
    Colonel King. Senator, I would say that--I would honestly 
tell you that there is peer pressure against reporting right 
now, but the tide is changing. I believe that. I can't give you 
a number. I can't tell you when.
    But there is a lot of peer pressure out there. I mean, 
these are young, strong, driven men and women who we ask to do 
some pretty amazing stuff. The primary group bonding that they 
go through in order to do that stuff that their Nation asks for 
them, I mean, the sense of belonging is very, very powerful.
    That character, that, for lack of a better term, 
personality, it can have some negative connotations. So, yes, I 
would honestly tell you that sometimes it is peer pressure that 
causes them not to report. Sometimes they will just tell a 
friend.
    In my experience, I have learned about misconduct in a very 
circuitous fashion. When it does get to my level, which is 
truly the chain of command, I know myself and the ladies and 
gentlemen that are sitting up here, we immediately act, 
immediately.
    Senator King. The real question before us all is how do we 
reverse that impulse at the grassroots level in terms of this 
is unacceptable conduct, that is the sexual assault, and 
reporting is okay? I mean, it seems to me that is really the 
nub of this problem.
    Because we can talk about generals and officers and 
admirals, but it has really got to happen in and amongst the 
troops. Colonel?
    Colonel Leavitt. Yes, Senator. That is absolutely critical, 
going to the grassroots. We have to create a climate and an 
environment where the peer pressure is that you don't commit 
sexual assault and you don't tolerate it. You step in, and you 
stop it. That is something we are trying to get to.
    Our chief has had increased emphasis on sexual assault from 
day one, how we prevent it, what we do about it, how we 
respond. In late November, he had a global wing commander call, 
unprecedented. Never had all wing commanders around the world 
been brought to one location, and they were brought to one 
location with one goal in mind--how to address the problem of 
sexual assault.
    We all watched ``The Invisible War'' together and talked in 
great depth because he said you are the ones who are going to 
have to make this change, the wing commanders. You set that 
climate. You set that environment, and you need to make that 
change.
    Following that, I had a series of commanders calls, and we 
looked at a clip from ``The Invisible War,'' and we talked 
about it. We talked about that climate and that culture. We had 
a health and welfare inspection where we went through, and we 
hit the reset button. What is acceptable? What kind of 
environment is respectful, has professionalism, discipline 
written all over it?
    Every class that comes in of new airmen, first-term airmen, 
I go brief them in detail. I make sure it is crystal clear in 
their minds what the standard is, what is acceptable and what 
is not. Because I truly believe it is going to have to be 
grassroots. We are going to have to create that peer pressure 
and that culture where we hold ourselves to a higher standard, 
and that is not acceptable in our Air Force or our military.
    Senator King. Well, I lived through the period where we 
went from drinking and driving being a kind of semi-humorous, 
``How did you get home last night? I don't remember. Ha-ha-
ha.'' To ``That is not acceptable.'' It came not only from the 
legal system, but from your colleagues.
    It came from your peers, and that was what really changed 
that culture, which there has been a remarkable change in the 
last 35 or 40 years.
    Here is my question. Should retaliation be an offense? If 
someone retaliates against someone for reporting, should that, 
in itself, be some kind of punishable offense?
    Captain Coughlin. Sir, that is like any kind of a crime 
against a shipmate. That is unacceptable. Yes, that should be a 
punishable offense.
    Senator King. Do we need language to that effect, or does 
the code already have sufficient language?
    Captain Coughlin. I have all the tools I need to take care 
of that in my command right now through nonjudicial punishment.
    Senator King. Do you recall any evidence or any occasion 
where someone has been disciplined for retaliation in a case 
like this?
    Captain Coughlin. I can't prove it was retaliation for a 
report of a sexual misconduct, but there have been many cases 
of nonjudicial punishment where two sailors get into a fight. 
That is punishable. That is not good order. That is not 
discipline. That is not teamwork.
    We prosecute those things within the lifelines all the 
time.
    Senator King. I would suggest that this might be an area 
to, again, get the word out that if the word gets back that 
somebody is being retaliated against in some way--shunned, 
ostracized, whatever--that that in itself ought to be, in some 
way, punishable, not necessarily with a court-martial, but 
nonjudicial discipline.
    Captain Coughlin. Sir, another method gets back to the 
grassroots theory is bystander intervention that is being very, 
very focused upon in the fleet-wide training, and then reward 
that, reward that kind of bystander intervention, and you are 
kind of attacking the problem from the other end. So that then, 
hopefully, as we get more run time on this, people will come 
forward more.
    Senator King. One final question. A great deal of 
discussion here this morning has been about taking these 
decisions out of the chain of command. What about an 
alternative whereby if you decide not to prosecute, that that 
has to be signed off on affirmatively by your JAG officer. If 
the JAG officer disagrees, it gets bumped up a level.
    I am trying to find something that doesn't violate the 
chain of command, but at the same time provides a check and 
balance to give people the confidence that this is real, they 
are going to get a fair hearing.
    Colonel Martin. Senator, there is already a process where 
if a JAG advises a commander to go forward on a case and they 
decide not to, the commander does, then the JAG can take it to 
the next higher commander.
    Senator King. My question is the key word you used was 
``can.'' Should that be ``shall''? In other words, should it be 
an automatic proposition if the JAG officer disagrees that it 
goes up, not a further discretionary decision?
    Colonel Martin. I think if there is an agreement, and the 
JAG feels very strongly about it, then he shall go forward.
    Senator King. Any other thoughts you have? Colonel King?
    Colonel King. Senator, I wouldn't have a problem with that 
at all. We are so close with our JAGs. I mean, since I have 
been a battalion and a regimental commander, I don't have these 
conversations without them. I honestly thought that we did what 
you are describing anyways.
    Now I never went against their recommendation, but I 
thought we did that. I know he would go to the general.
    Senator King. Okay.
    Colonel King. So I would be fighting this fight anyway.
    Senator King. Thank you very much, and thank you all for 
your service.
    Chairman Levin. Thank you very much, Senator King.
    Senator Sessions.
    Senator Sessions. Thank you very much, and I am sorry I 
missed much of the morning. I am ranking on the Budget 
Committee, and we had a hearing I had to attend.
    This is an important subject, and we are proud that you are 
here to testify about it. I had time in the Army Reserve. I 
even held a JAG slot, but I never was Charlottesville trained. 
So, I am a pretty weak JAG officer, not like Senator Lindsay 
Graham, who actually served in those areas.
    But my experience with JAG officers are that they are not--
they don't see themselves like the average corporate counsel 
for some CEO. They see themselves as an advocate for the values 
of the United States military and proper enforcement of the 
law.
    First, let me ask you, would it generally be so that the 
JAG officers work hard and are prepared to be aggressive in 
prosecuting cases that involve sexual misconduct, or do you 
think there is a lack of aggressiveness in that regard?
    Captain Coughlin. Senator, all my experience with SJAs is 
that they are very aggressive. They are very plugged in, and 
they view themselves as to support me in making a good 
decision.
    Senator Sessions. What I remember in advanced officer 
school, we had an African American that had not cleared the 
course, and we complained to the JAG officer. He happened to be 
from Alabama, and he grilled--we had a hearing. He grilled that 
colonel shockingly, really, and he ended up reversing the 
position.
    I would say that my observation with JAG officers are they 
are courageous and independent and not afraid to take on 
difficult cases.
    I am not fully familiar with your roles at this point in 
your career. But are our captains, colonels, majors, are they 
talking with their officers and leadership team, NCOs, about 
this problem today, and is it being emphasized in a regular way 
in your command? If there is a problem, do you call your 
leadership team together, is it being discussed with them?
    Captain Coughlin. Yes, sir. It is a huge focus. There is 
fleet-wide training that is ongoing.
    Senator Sessions. Now does that happen--been emphasized 
more in recent months as a result of some of the reports we 
have seen?
    Captain Coughlin. I have seen since 2011, we have been 
aggressively tracking this problem and attacking it. The Navy 
is going to have a stand-down from the 10th of June to the 1st 
of July Navy-wide. We have rolled out fleet-wide training, at 
the fleet level and leadership level.
    I can't think of many more things that are more focused 
than this right now in the Navy.
    Senator Sessions. There is no doubt that a person would 
from the lowest rank on up know that this is an increasingly 
important emphasis from the command? You have already done 
that? That has already been done?
    Captain Coughlin. Yes, sir.
    Senator Sessions. Mr. Chairman, I just had a letter and a 
document here that were given to me. Morality in Media. Pat 
Trueman used to be in the Department of Justice. I knew him 
when he was there. Points out that a picture here of a 
newsstand in an Air Force base exchange with sexually explicit 
magazines being sold.
    We live in a culture that is awash in sexual activity. If 
it is not sold on base, it is right off base. There are videos 
and so forth that can be obtained, and it creates some 
problems, I think.
    Let me just say this. Let us say that you had a female 
soldier who had felt she was assaulted by an NCO, higher rank. 
What would happen? When that comes to your attention--Colonel 
Martin, I see you nodding--what would you do? Do you think what 
you would do is typical of what other officers would do?
    Colonel Martin. Senator, I nod because this is exactly a 
situation that I had in my command where I had a young female 
who was sexually harassed by a senior noncommissioned officer. 
That noncommissioned officer was relieved of his duties, and 
then at her request, she was transferred to another unit.
    Senator Sessions. If it were criminal assault, is a JAG 
officer notified first or the Defense Investigative Services, 
or who would investigate the facts of the case?
    Colonel Martin. That would have been investigated by CID.
    Senator Sessions. You did that?
    Colonel Martin. That is correct.
    Senator Sessions. Okay.
    Colonel King. Senator, just to be clear, we are not allowed 
to investigate allegations of sexual assault.
    Senator Sessions. How does it work?
    Colonel King. Our commands are not. That has to be 
investigated by NCIS, in our case.
    Senator Sessions. All right. Then who do they make a report 
to?
    Colonel King. The report comes back to the convening 
authority, sir, which in this case would be one of us.
    Senator Sessions. Then you would take--you would convene a 
court-martial or not convene a court-martial proceeding? But 
there is a procedure for that to be done.
    I am just trying to--for the people who are wondering how 
this happens in the real world--I am trying to flesh that out, 
what happens in the real world is that a complaint is not 
ignored, first. Is that correct? Would you all agree with that?
    Then there are mechanisms to investigate and, if necessary, 
prosecute those cases, and the person can be removed from the 
military, placed in jail, or given other kinds of discipline as 
a result of misbehavior.
    Colonel King. Sir, in a recent change, any substantiated 
allegation of sexual assault results in automatic processing 
for discharge. So now we normally----
    Senator Sessions. Automatic processing?
    Colonel King. Automatic processing. Now we hold that in 
abeyance if there is legal proceedings still going on. We don't 
want to discharge someone who we are going to have a general 
court-martial for.
    But if that court-martial proceeds forward and comes back 
with a verdict of not guilty, then we can process them. That is 
a recent change.
    Senator Sessions. I don't know how many million people are 
in all our branches of Service. What? Three million, Mr. 
Chairman? Most of them from 18 to 30, let us say. If you had a 
city of 3 million with a lot of young men and some women, we 
know there will be certain problems. We know that just 
mathematically.
    I do believe the military has a serious commitment. I have 
read and heard General Dempsey's comments today, and I really 
believe he is focused on reversing these bad reports that we 
are seeing that are unacceptable, and whether legislation is 
needed or not, we will see. It is very important that each of 
you, to the lowest level, are aggressive in ensuring that we 
have a safe workplace.
    I thank you for what you have done and your service to your 
country.
    Chairman Levin. Thank you, Senator Sessions.
    Senator Hagan.
    Senator Hagan. Thank you, Mr. Chairman.
    First, I want to say to Colonel Leavitt, congratulations 
for being the first female wing commander in the history of the 
Air Force, we are pleased that you are here today.
    I know a lot of the conversation this afternoon has been 
centered around making the command environment where victims 
are comfortable reporting crimes of sexual assault, and these 
victims in this process need to feel that they are going to be 
listened to, that they are going to be protected. They are 
going to be cared for, their case will be taken at the 
appropriate level of investigation. Hopefully, they are not 
going to be retaliated against, and the stigma, hopefully, will 
not stick with the victim.
    Colonel Leavitt, I know General Welsh was talking about the 
pilot program for the special victims' counsel. Have you been 
directly involved with one of these pilot programs?
    Colonel Leavitt. Senator, I do have familiarity with the 
special victims' counsel. One of the prosecutors that works in 
my chain of command, he is a special victims' counsel. Now he 
can't give me any specifics, but what I did is ask him about 
the program and how it was working. He said it has been very 
positive feedback.
    It really gives a victim a voice. It empowers them. It 
helps them under the process and understand what options they 
have. In cases, it has been able to allow people who initially 
file the restricted report, once they understand the whole 
process and they feel they have an ally, they are willing to go 
to an unrestricted report, in which case we are able to 
prosecute.
    Senator Hagan. So how many current victims get access to a 
special victims' counselor?
    Colonel Leavitt. Ma'am, any victim, anyone who makes a case 
for sexual assault, if they file either a restricted or 
unrestricted report, they are offered special victims' counsel.
    Senator Hagan. Is that true in the other branches?
    Colonel King. Ma'am, we don't have a Special Victims Unit. 
We do have complex trial teams. It is more training our 
litigators, our prosecutors to properly try these cases. One of 
the things that we noticed----
    Senator Hagan. But that is not available to the victim from 
day one?
    Colonel King. No, ma'am. The reason for that is, in my 
opinion, we do the take care of the victim side of it pretty 
well today. I know the Commandant has said we are going to look 
at the special victim unit. I think it is a great idea.
    Senator Hagan. Why don't you give me a run-through as to 
what happens for the victim?
    Colonel King. For the support mechanisms they have? They 
have--in every unit, we have a response coordinator who really 
handles the process once the report has been done. We also have 
a uniformed victim advocate. So that person is specifically 
trained to not only be there in those initial phases of the 
very--reporting that very traumatic experience, but to open up 
all of the things that are available to help a victim, which 
are mostly on the installation side.
    That uniformed victim advocate will walk through with that 
victim every step of whatever counseling or whatever medical 
help they need. Does that answer your question, Senator?
    Senator Hagan. It does. Over the last 20 years, States have 
gotten involved in special victims' counsel. They have been 
involved with advocates for sexual assault victims, domestic 
shelters, domestic violence, all sorts of these issues. I want 
to be sure that these resources that are available at the State 
levels, that the military either makes use of them or actually 
is following what is going on.
    I guess, Colonel Martin, in your case--and tell me if I am 
correct--that you oversee the investigators who are 
investigating many of these crimes?
    Colonel Martin. Yes, Senator. I do.
    Senator Hagan. One question I have is you were talking 
about ``The Invisible War'' and that some of your investigators 
find it hard to believe the victim.
    Colonel Martin. No, Senator, what I was saying was the 
discussion was centered around where we have come from when we 
started investigations to the additional training that we have 
given our agents, to where they are now and how we treat 
victims. They all believe that all victims should be treated 
with dignity and respect.
    Senator Hagan. Okay. I have seen ``The Invisible War,'' and 
I am pleased that some of you have actually witnessed it and 
are using it. But it wasn't put together as a training 
mechanism, and I want to be sure that the training that goes 
into the people that help the victim when they present at a 
hospital stand by their side.
    This is a traumatic situation. So much has been done on the 
civilian side over the last 20 years that I want to be sure 
that the military is using that as good examples of best 
practices. I think the special victims' counsel is certainly an 
area that all the branches need to be moving into, and I am 
certainly hoping that this doesn't just be a pilot program, 
that it continues to be a program that is acted upon.
    Do you feel it is appropriate, Colonel Leavitt, to dispose 
of sexual assault or other serious offenses at the O-6 level of 
command?
    Colonel Leavitt. Senator, I believe that the commander 
needs to have the ability to back up what they say. They need 
to be able to enforce the standards they set. So, if I say 
there is no acceptable level of sexual assault, I need to be 
able to back that up, not look to an independent counsel and 
ask them to then take it to courts-martial.
    Senator Hagan. I am concerned about how the victims are 
continually being treated, and why are they not reporting at a 
larger number than they are right now? I have heard the 
testimony, and I have heard we have a zero tolerance. We are 
going to do this. We are going to do better.
    What specific steps are going to change that reporting 
behavior? If you could just quickly, Colonel Martin?
    Colonel Martin. Senator, I think command climate would 
change that reporting. Positive command climate and belief that 
the chain of command is going to----
    Senator Hagan. Have we not been doing that for the last 
couple of years?
    Colonel Martin. Yes, ma'am. But I think we just have to 
continue. We have to reiterate our concern for our victims.
    Senator Hagan. Captain Coughlin?
    Captain Coughlin. That is the hardest question of all, 
ma'am. We have good command climates, and I am comfortable that 
my commanding officers are addressing this problem and talking 
to me about it, and we are adjudicating it the best we can.
    But the stigma associated with this is the tough thing to 
get through, and I just think we have to break down those 
barriers little by little by little, and hopefully, those who 
would have a tendency to not report would then come forward.
    Colonel King. Senator, I think it is going to take 
continuous pressure and time. I don't think this is an 
intractable problem, but it is definitely a hard one. It is a 
complex one. It is going to take some time.
    Colonel Leavitt. Yes, Senator. I think it is going to be a 
continuous process in order to improve the environment and 
ensure that victims do feel comfortable, and we have done a 
number of things, but we have to continue it.
    There is a big, increased emphasis I have seen with our new 
chief and his focus for our airmen.
    Senator Hagan. Well, hopefully, the victims will start 
coming forward in higher numbers. It should also, I hope, 
discourage the perpetrators of sexual violence to also take 
note and realize that this is a crime, and it is unacceptable 
in the military and in the civilian world.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Hagan.
    We very much appreciate this panel. We appreciate the 
service that you and the men and women with whom you serve, and 
your families. We thank you for coming forward today and giving 
us your own testimony from your own perspectives. It is 
extremely important that we hear from you, helpful to this 
committee and, I hope, helpful to the final outcome of our 
deliberations.
    You are now all excused with our thanks. We will move 
immediately to the third panel. [Pause.]
    Our final panel, a panel of outside witnesses, and we are 
welcoming first Ms. Nancy Parrish, president of Protect Our 
Defenders.
    Ms. Anu Bhagwati, Executive Director and Co-Founder of the 
Service Women's Action Network. Major General, Retired, John 
Altenburg, chairman of the American Bar Association's Standing 
Committee on Armed Forces Law.
    Colonel Lawrence Morris, Retired, General Counsel of 
Catholic University.
    We are grateful for your presence, and for your patience 
here today. We will call on you in the order in which I 
introduced you. First, Ms. Parrish?

          STATEMENT OF MS. NANCY PARRISH, PRESIDENT, 
                     PROTECT OUR DEFENDERS

    Ms. Parrish. Thank you, Mr. Chairman.
    Protect Our Defenders regularly receives pleas from current 
sexual assault victims whose attempts to report are thwarted, 
mishandled, or made to disappear. We try to intervene, hire 
lawyers, block retaliation, reverse errant medical diagnoses.
    Servicemembers with outstanding records after they report 
are often isolated in psych wards, investigated, and forced 
out. One soldier explained, ``I got raped. When I told my squad 
leader, I got shut down. I waited, spoke with my platoon 
leaders. I got told if I say another word, I would be charged 
with adultery.
    ``I told my new squad leader. In December 2012, they 
chaptered me on an adjustment disorder. He is free, wears the 
uniform. It represents a protective shield if you are a rapist 
with rank.''
    A mom reported, ``In April 2012, servicemembers gave our 
daughter cigarettes laced with embalming fluid and raped her. 
She was locked up, denied requests for expedited transfer. 
Weeks later, an Article 15 and an attempt to discharge with 
errant medical diagnoses.''
    Last year, an active duty officer of 18 years said, ``I was 
deployed overseas. The first advice you get, always carry a 
knife, not for battle, to cut the person who tries to rape you. 
I was drugged and raped. Check the base inspector general (IG) 
records. See how many complaints were pushed under the rug.''
    Lieutenant Adam Cohen was violently sexually assaulted and 
endured botched investigations. Today, he faces command 
retaliation, harassment, threats to his life, and finds himself 
the investigation target.
    Several months ago, a commander wrote, ``I have a young 
female soldier. I encouraged her reporting. I have been 
disappointed in the lack of support given by her command higher 
than me. I would appreciate any direction you could advise.''
    Congress must assume its responsibility and not approach 
reform based only on what military leaders would like to 
accept. Common sense tweaks to a dysfunctional biased system 
will not fix this.
    Place the duty to determine whether to go forward to trial 
with trained senior prosecutors. Third-party accountability 
will help fix the culture and legitimize the system.
    Why should a legal decision be left to a non-lawyer often 
connected with those involved and with vested interest? How 
could this consistently produce justice? In deployed areas, 
justice would still occur with the JAG system.
    Remove Good Military Character (GMC) defense from trial. 
Instruction on GMC tells members that it, on its own, can raise 
reasonable doubt. Only if the accused has committed another 
crime can you impeach at trial.
    Remove commanders' authority to reduce sentences. Provide 
victims with absolute legal representation to protect their 
rights, not just advice. Judges, not juries, should pronounce 
sentences.
    Military juries are notorious for light sentencing. Mandate 
minimum sentencing guidelines. Juries should be selected 
randomly, not by someone who may have an agenda.
    Many insist that absolute command discretion is required to 
maintain good order and discipline. Yet when victims are 
punished and perpetrators go free, troops know it, and trust is 
undermined.
    Whether you agree with how our allies have set up their 
outside system, the bottom line is it hasn't reduced a 
commander's ability to train and lead warfighters. Many have 
stressed the critical involvement of commanders in addressing 
this crisis. We agree. Commanders must create a command climate 
that minimizes these incidences.
    Commanders must be held accountable. Status quo supporters 
have failed to explain how placing the disposition authority in 
the hands of capable prosecutors would undermine effectiveness. 
The opposite is true. Today, more reports may mean a commander 
is fair and effective, and a commander with no reports may be 
intimidating victims and burying offenses.
    Third-party accountability will help legitimize the system 
and fix the culture. Victims will report, retaliations shrink, 
and prosecutions increase. Today, there is absolutely no 
tracking of how a convening authority performs this part-time 
duty.
    Forceful leadership and accountability is also required. 
Recently, General Franklin, exhibiting faulty analysis and 
bias, set aside the sexual assault conviction of Colonel 
Wilkerson. Leadership's only response? Franklin acted within 
his authority.
    Of course, he did. That is the problem. What about his duty 
to promote good order and discipline and see justice served? He 
failed on both counts. Will he be held accountable?
    Furthermore, Franklin's commander, General Breedlove, 
speaking before 500 majors, rising commanders, publicly 
defended Franklin's analysis and erroneously attacked the 
prosecution. This circling the wagons above the interests of 
the service is common.
    The panel today said they rarely relieved anyone for having 
a climate of sexual assault. What does it take?
    Survivors have found their voice. Americans are watching. 
Fundamental change is required. It will come. How long will it 
take?
    [The prepared statement of Ms. Parrish follows:]
                Prepared Statement by Ms. Nancy Parrish
    Chairman Levin and members of the Senate Armed Service Committee, 
thank you for holding this hearing and for your visible determination 
to address the critical issue of military sexual assault. Thank you for 
the opportunity to address your committee today.
    Protect Our Defenders is a human rights organization that works 
with victims of military sexual assault, providing support services and 
advocating for military justice reform. Our experience working directly 
with sexual assault survivors, active duty and veteran, as well as our 
work educating the public and policymakers on this issue have left us 
critically aware of the shortfalls within the current system and the 
need to implement fundamental reforms.
    The argument currently circulating that sexual assault reform is an 
old problem, predominantly solved through recent changes in the law, is 
simply not correct.
    It is well understood that the numbers are going up not down.
    We regularly receive desperate pleas from current victims of sexual 
assault, who are having their attempts to report thwarted, mishandled, 
or swept under the rug.
    Increasingly we intervene, hiring lawyers, to block retaliation and 
reverse errant medical diagnoses. We frequently hear from highly rated 
servicemembers, who soon after they report, suffer persecution, are 
isolated in psych wards with wrongful diagnoses, or become targets of 
investigations. Soon after, they are frequently being forced out of the 
Service.
    One soldier explained, quote: ``I got raped by this bastard. . . . 
When I tried to talk to my squad leader I got shut down and reminded 
that he (the rapist) was a Senior NCO. . . . I waited and spoke with my 
platoon SFC (sergeant first class) and lieutenant, [And, they told my 
perpetrator.] . . . . Then, I got told if I say another word to ANYONE, 
I was going to be charged with Adultery. . . . I was sent back to the 
States . . . . I told my squad leader . . . and the next thing . . . I 
get told they are chaptering me on an adjustment disorder. . . . I am 
one of the `unreported statistics' but not without trying. . . . He is 
free and able to do it again as long as he wears the Uniform. . . . The 
Uniform represents a Protective Shield if you're a rapist with rank.''
    A mother reported to us, quote: ``Our daughter's career and life 
nearly ended on base 4/7/12, days before her tech training was to 
begin. That day other servicemember(s) gave her cigarettes laced with 
embalming fluid and raped her . . . she was locked up, prescribed 
medications, denied repeated requests for expedited transfer. . . . 
Only weeks later, Command initiated an Article 15 letter of reprimand 
and proceeded to discharge her with an errant medical diagnosis. (This 
was later overturned with outside legal assistance.) She endured months 
of anguish, hospitalizations, humiliation, punishment . . . having to 
clean and work in the area where she was assaulted a second time--
raped, sodomized, threatened reporting further, and forced to live in 
close proximity to her perpetrators. . . . (A letter is attached the to 
committee from the mother.)
    Last year, an officer of 18 years, still on active duty, said: I 
was deployed overseas. The first advice you get when you get there . . 
. ALWAYS carry a knife. Even in the daylight, almost every woman 
carried a knife. Not for battle against the Taliban, but to cut the 
person who tries to rape her. I was drugged and raped . . . if you 
report people are going to ostracize you. . . . If you report rape you 
are done. . . . Check their crime records here, and [see] how many IG 
complaints were pushed under the rug . . . why? Because, the IG office 
is also a deployment position. They don't want to deal with big issues, 
because it takes too long to investigate.''
    USAF Lieutenant Adam Cohen is on active duty. He deployed three 
times for Operation Enduring Freedom, flying over 40 combat missions in 
Afghanistan.
    Lieutenant Cohen is an example of a failed system, a system that 
permits the weakest within it to suffer manipulation and castigation 
for having the temerity to come forth with an allegation of sexual 
assault. According to Lieutenant Cohen, for years he suffered 
blackmail, at the hands of his assailant and his assailant's friends, 
designed to keep him from coming forward with his allegation. When he 
finally came forward, he was initially ignored by Air Force law 
enforcement. Pressing his claim further, he was punished by 
investigators and manipulated into providing evidence that was meant 
not to hold his assailant accountable, but rather to prosecute him. 
Through the actions of the Air Force, Lieutenant Cohen's alleged 
assailant (still on active duty) is statutorily barred from 
prosecution, while Lieutenant Cohen remains the subject of a 
constitutionally suspect prosecution. He has been retaliated against, 
attacked, and denied an expedited transfer. Upon learning the expedited 
transfer was denied, SVC Major Bellflower asked the commander to 
provide a safety plan. If we are to make any headway in curbing sexual 
assault in the military, we must act to protect those that come 
forward, by ensuring that the system does not punish them for doing so. 
(SVC Counsel, Major John Bellflower's redacted report is attached with 
his permission. Also attached with permission is Lieutenant Cohen's 
background and statement.) There should be a Department of Defense 
(DOD) investigation of the entire matter.
    Several months ago, a commander wrote: ``I have a young female 
soldier. . . . As her commander . . . I have supported and encouraged 
her reporting, but have been disappointed in the way it has been 
handled and the lack of support given to her by her command (higher 
than me). I would appreciate . . . any direction you could advise. . . 
. As I am still in the Command, discretion would be appreciated.''
    Civilian oversight of our military is a founding principle of our 
democracy. Yet, for decades we have seen Congress approach reform 
efforts with great deference, to what military leaders would like to 
accept This has remained the case, even after it became painfully 
evident the reforms to date were not sufficient and that the failure is 
quite damaging. This failure has come at great cost to our 
servicemembers, our military, and our national security.
    The rising numbers of unreported cases of rapes and sexual assault, 
coupled with unacceptably low prosecution rates have left victims 
discouraged, intimidated, disdained, retaliated against, and all too 
often, broken. They are dismissed by a legal system, tightly controlled 
within the chain of command. Many victims are coerced to keep their 
complaints unrecorded and officially unheard. In sum, the criminals are 
not prosecuted and victims are persecuted.
    There are three fundamental issues regarding this crisis plaguing 
the military:

         The broken justice system, which is biased toward 
        retaliating against the victim, while protecting the often 
        higher-ranking perpetrator;
         A culture of objectifying and denigrating women and 
        refusal to recognize male victims; and,
         A failure of military leadership to exhibit resolve 
        and forcefully and effectively address this issue.

    On May 22, 2013, former General Counsel to the Pentagon, Mr. Jeh 
Johnson said, ``I have recently come to the conclusion . . . the 
problem, I believe has become so pervasive. The bad behavior so 
pervasive, we need to look at fundamental change in the military 
justice system itself.'' These are powerful words from the Nation's 
former top military legal official.
    Congress must assume its responsibility and no longer approach 
reform based on what military leaders would like to accept. We cannot 
afford to simply continue to make marginal changes.
    The military leadership has long insisted that absolute command 
discretion is required in order to maintain good order and discipline, 
and to ensure mission readiness and unit cohesion. Yet, when victims 
are punished and perpetrators go free and everyone knows it to be the 
case, trust, the essential ingredient to an effective, functioning 
military is undermined. It would also undermine unit cohesion and 
trust, if as defense counsels frequently argue, commanders, in response 
to political pressure, simply pursue witch-hunts against anyone 
accused. Why have the commander in a position where so many people may 
question their objectivity, both those that believe the victim and 
those that support the accused? We need to remove from the process all 
those with a personal interest or even an appearance of potential 
conflict of interest and bias.
    Our military leaders have consistently failed to specifically 
explain how or why removing the convening authority from commanders and 
placing it in the hands of capable and trained prosecutors would cause 
this alleged break down in the system. They said the same about 
repealing Don't Ask Don't Tell. Commanders would still have a multitude 
of tools at their disposal to maintain good order and discipline. We 
need only look to our closest ally, the United Kingdom in this regard.
    For commanders, administering justice and referring cases to court-
martial is only a small part of their job. The Convening Authority has 
many other high priority, non-judicial responsibilities that consume 
the majority of their time and attention. Why should a legal decision 
be left to a non-lawyer, particularly someone often directly connected 
with those involved and with an inherent interest in the outcome? How 
could one expect this to consistently produce unbiased justice?
    Taking administration of the legal process out of the chain will 
increase accountability. Many members of the military have stressed 
that it is critical that commanders remain accountable for the climate 
within their command. We agree. After taking legal decisions out of the 
chain, commanding officers will still be required and able to create 
and maintain a command climate that will minimize the occurrences of 
these incidences. With the responsibility to administer the legal 
process out of their hands, the reality and perception of victims will 
be that the system is more legitimate and fair. More victims will 
report, more prosecutions will occur and commanders will be held more 
accurately accountable for the climate they maintain.
    The current system produces a perverse consequence. There is no 
good way to know which commander is doing a better job. Which is 
better, a commander who has 20 victims come forward in his unit or a 
commander who has zero reports. Today the truth is not knowable. 
Victims have little or no faith in the system and the system lacks 
transparency. The commander with 20 reports may be doing a good job, 
encouraging and fairly dealing with reports. The commander with no 
reports may not tolerate repor,ting and his unit may actually have a 
much greater incidence of sexual assault
    Taking responsibility and authority for administering the legal 
process out of the chain will increase accountability. Victims will 
understand that they will more likely get a fair shake. More victims 
will report. As more report, it will become clearer which commanders 
are creating a good climate, strong unit cohesion, and good order and 
discipline and which are not.
    Congress must face reality. For justice to prevail, you must end 
commanders' unfettered authority over the legal aspects of military 
justice. Nothing less will end the damaging cycle of scandal and 
continued incidence.
    The civil justice system provides an apt model for how the military 
justice system could work well. To make the military justice system 
more effective, we would recommend the following changes:

     1.  As in civilian justice, place the duty to determine whether to 
go forward to trial (the disposition authority), into the hands of 
professionally trained senior prosecutors.

         Although you will not likely hear it in this room, many 
commanders would prefer such a change.

     2.  Require that court-martial panels be randomly selected from a 
pool of eligible candidates, in a manor similar to the civilian justice 
process. As in the civilian process, there should be exceptions for 
those with conflicts precluding assignment.
     3.  The chief judge of each Service should continue to assign 
judges as required.
     4.  DOD should establish minimum sentencing guidelines, which 
follow the well-established civilian Federal system.
     5.  Assign military judges the exclusive responsibility to 
administer sentences. Military panel members are not trained as to what 
is appropriate and are notorious for inappropriately light sentences.
     6.  Rely totally on the appeals courts for post trial assessment 
of legal issues.
     7.  Elevate authority to overturn or reduce sentences to the 
Service Secretaries or Chief of Staffs. As in the civilian systems, 
overturning conviction or reduction of sentencing should be a last 
resort, only available after completion of any appeals process, with 
decisions taken by a fully independent, unbiased, previously uninvolved 
authority.
     8.  Remove Good Military Character defense from the trial, as well 
as pre-trial proceedings. The ability to raise reasonable doubt based 
solely on the accused military record is biased and should be not be 
relevant to findings of guilt in criminal matters. There is no civilian 
equivalent. Imagine a rapist being set free merely because he has a 
good reputation as an auto mechanic, a popular teacher, or business 
executive. It is offensive to the notion of justice.
     9.  Provide that all Services should have Special Victims Counsels 
empowered to provide actual legal representation to help victims 
protect their rights. Do not eviscerate the Air Force Special Victims 
Counsel program. If access to counsel were provided, retaliation would 
be greatly reduced.
    10.  Create an independent, victim centered, protective reporting 
process.
    11.  Mandate that each Service create a military justice track for 
JAGs. The current system does not sufficiently nurture military justice 
expertise. The Navy has recently implemented such a track It enables 
talented JAGs, who enjoy litigation, to specialize in justice and 
continuously serve in that capacity.

    Reforming the military justice system is necessary but, alone, will 
not be sufficient to end this epidemic. Only with forceful leadership 
from the top and accountability throughout the command structure, will 
we see the necessary positive shift in the military culture and less 
negative attitudes toward victims of sexual assault. Good laws alone do 
not create good government.
    This issue was brought to light most recently in the sexual assault 
case at Aviano Air Base. Lieutenant General Craig Franklin set aside 
the conviction of fellow pilot, Lieutenant Colonel Wilkerson, 
overturning the guilty verdict rendered by a court-martial panel of 
five colonels he personally selected, and against the recommendation of 
his legal advisor.
    Lieutenant General Franklin's letter explaining his decision to 
overturn the conviction clearly exhibits faulty analysis, misjudgment, 
and personal bias. Protect Our Defender's analysis of the General's 
explanation, with extensive excerpts from trial record, has been 
previously provided to the committee. No one, after a careful, unbiased 
analysis of the trial record, could reasonably conclude that General 
Franklin's action was well-reasoned and balanced, solely based on the 
facts of the case. It appears that he simply could not believe or 
accept that this fellow fighter pilot would commit such an act. 
Lieutenant General Franklin's twisted reasoning and reliance on the 
accused's alleged strong character and veracity is an awkward attempt 
to justify and reconcile his own belief in a fellow pilot, rather than 
rely on the evidence at trial. This bias coupled with his gratuitous 
exercise of unilateral and unchecked authority is an archetypical 
example of what plagues the military justice system.
    There was bipartisan condemnation of Lieutenant General Franklin's 
action and subsequent explanation. Yet, the only response from the 
Pentagon has thus far been that Lieutenant General Franklin acted 
within his authority. Of course he did. That is the problem. What about 
his duty to promote good order and discipline? What about his duty to 
see that justice is served? Having failed on both counts, will he be 
held accountable? Thus far, we see no sign that his career will even be 
affected.
    To further compound the egregious and reverberating effects of this 
decision, on March 15, Lieutenant General Franklin's commander, General 
Breedlove, speaking before 500 Majors and rising commanders at the Air 
Command and Staff College, publicly defended Franklin's decision on the 
merits and falsely attacked the prosecution team. There is no way, had 
he carefully reviewed the record, that General Breedlove could have 
rationally reached his conclusion. It appears as though he may have 
simply read and accepted Lieutenant General Franklin's account. This 
sort of ``circling the wagons'' mentality, where the bad actions of one 
or a few individuals are defended, over the best interests of the 
Service and the troops, is all too common.
    The Aviano case was and is a stark opportunity for DOD and the Air 
Force top leadership to exercise their responsibility and stated 
commitment to hold accountable those who countenance sexual offenses. 
The facts are on the record, very clear, and easy to analyze. Instead, 
General Breedlove doubled down and supported Franklin on the merits in 
a very public and gratuitous manor. The Pentagon, thus far, has 
correctly and repeatedly stated that Franklin acted within his 
authority. There is thundering silence from the Pentagon regarding 
whether any one even doubts that he made the right decision. Such 
silence emboldens predators and those who would be inclined to protect 
predators or sweep this issue under the rug. It sends a chilling signal 
to victims who must decide whether to report and can only be deeply 
demoralizing to investigators, prosecutors, and panel members, who face 
similar cases every day.
    Ultimately, our military leaders must understand that they will be 
held personally accountable for their decisions on this issue. Those, 
as the President recently said, who are doing the right thing should be 
incentivized. However, it is even more important that those leaders who 
countenance sexual assault and protect predators must themselves suffer 
severe consequences. They must be relieved of command. Right now, all 
too often, the opposite occurs. Commanders fail to effectively address 
the issue, predators survive and advance in rank, and victims suffer 
retaliation and are pushed out of the Service.
    The bottom line is the culture will not change until top leaders 
take strong action and leaders who fail to do their duty are clearly 
and swiftly held accountable.
    Legislation currently pending before the Senate Armed Services 
Committee includes many crucial measures, particularly those in the 
Military Justice Improvement Act, which, if passed, would improve the 
situation regarding rape and sexual assault in the military, and could, 
if effectively implemented, go a long way to prevent future crimes. The 
reform must be sweeping to make appreciable change.
    The failure of the military to effectively deal with this cancer 
has been very damaging to the thousands of victims, the quality of our 
military, and the prestige and honor of our troops. Americans are 
finally, starkly aware of this crisis, and on August 2, 2012, according 
to Stars and Stripes, General Welsh stated, ``[Sexual assault] just has 
the potential to rip the fabric of your force apart. I think it is 
doing that to a certain extent now.'' We agree.
    Survivors have found their voice. The American people are paying 
attention. There is no longer any doubt that change will come. The 
question is how long will it take and, meanwhile, at what cost to our 
service men and women, our military as a whole, and our prestige around 
the world.
    We are extremely grateful for the work and attention the Senate 
Armed Services Committee is devoting to this issue. We are encouraged 
by many of the proposed reforms. We believe that, along with our 
additional proposals, they, if enacted and effectively implemented, 
will result in significant improvement over the status quo.
      


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Chairman Levin. Thank you very much, Ms. Parrish.
    Now Ms. Bhagwati?

   STATEMENT OF MS. ANU BHAGWATI, EXECUTIVE DIRECTOR AND CO-
            FOUNDER, SERVICE WOMEN'S ACTION NETWORK

    Ms. Bhagwati. Good afternoon, Chairman Levin, Ranking 
Member Inhofe, and members of the Armed Services Committee.
    Thank you for convening this hearing and for the privilege 
of testifying before you today.
    My name is Anu Bhagwati. I am the executive director of 
Service Women's Action Network (SWAN) and a former Marine Corps 
captain.
    SWAN has been at the forefront of working to end military 
sexual violence since 2007. We are nonpartisan. We are veterans 
led, and we are a nonprofit organization. It is our mission to 
transform military culture by securing equal opportunity and 
freedom to serve without discrimination, harassment, and 
assault, and to reform veterans services to ensure high-quality 
healthcare and benefits for women veterans and their families.
    I would like to begin by saying that I have a deep abiding 
love for the military that comes from spending 5 years serving 
as an officer of marines. I want to see our servicemembers 
succeed and our Armed Forces thrive.
    The issue of sexual violence in the military has been a 
priority for our organization since its inception. Daily 
interactions with servicemembers and veterans on our legal and 
social services help line have shown us that the impact of 
sexual violence, the impact that it has had on our military in 
terms of recruitment, readiness, and retention is profound, and 
the pain and damage to individual survivors is, in many cases, 
irreparable.
    Even more distressing, the continued failure of the 
military to address this situation has caused troops to 
completely lose faith in their leadership and in the military's 
criminal justice system. This is evident in abysmally low 
reporting rates for sexual assault.
    Servicemembers tell us that they do not report for two 
reasons primarily. They fear retaliation, and they are 
convinced that nothing will happen to their perpetrator.
    With approximately 26,000 members of the military having 
experienced some form of sexual assault over the past year 
alone, this issue calls for immediate attention. Sexual 
violence presents a challenge to the force that requires the 
same level of planning, leadership, and execution that goes 
into the most critical military operations. Resolving this 
crisis will require a comprehensive approach as well as a joint 
effort by DOD, Congress, the White House, and outside experts 
and advocates.
    Issues that must be addressed include victim services, 
protection from retaliation, military justice reform that 
reevaluates the role of the commander and removes bias against 
both victim and the accused, and wholesale changes to military 
culture.
    These issue areas require solutions that transcend 
traditions or rhetoric. Everything must be put on the table, 
and a climate of cooperation and change must prevail if we are 
to restore the military's standing in the eyes of its own 
members, the Nation, and the world.
    SWAN believes that part of this change requires a dramatic 
increase of accession rates of women in the Service branches 
and all commissioning sources. The answer to the sexual 
violence crisis in part lies with the need to drastically 
increase women's presence in the Armed Forces. Until women are 
afforded the same access to all jobs and assignments as men, 
until sex discrimination ends, we will also have a military 
that condones sexual harassment and assault.
    We simply cannot expect to recruit or retain enough women 
in the force when they are treated so poorly, and we cannot 
expect military culture to improve with so few women at the 
highest echelons of enlisted and officer leadership.
    As you may know, I come to this hearing having personally 
experienced and witnessed widespread discrimination and sexual 
harassment during my own military career, having witnessed my 
own senior officers sweep numerous cases of rape and sexual 
assault under the rug, and having experienced personal and 
professional retaliation for reporting abuse in my unit.
    I know intimately what intimidation by the chain of command 
feels like. I know deeply what long-term personal trauma from 
reporting these incidents feels like. I know deeply how it 
feels to lose a career I loved because of my own commanding 
officers doing nothing to support my troops or me when we did 
the right thing.
    For any servicemembers, veterans, or civilians who are here 
in this room or who are watching this hearing today who have 
experienced rape, military sexual assault, or harassment, 
please know that you are not alone. I believe you, and millions 
of Americans across this Nation believe you.
    We know that the military justice system has not worked 
effectively for you. We know that the trauma, fear, 
intimidation, and retaliation you experienced is a travesty of 
justice. It is a violation of everything that your fellow 
servicemembers swore to uphold. It is a betrayal of the oaths 
that your officers swore to uphold.
    You didn't deserve this when you volunteered to serve your 
Nation. I am so proud of you for making it through each and 
every day while your fellow brothers and sisters in arms may 
have blamed you for what was never your fault, while your chain 
of command and even your own families may not have believed or 
supported you, while the VA made it nearly impossible for you 
to get the benefits you deserved, making you feel again and 
again that like what happened to you was your fault and not the 
fault of those who violated your trust.
    Mr. Chairman, we are facing a crisis in the ranks. Our 
military today is a hostile environment in which women and men 
must put up with all kinds of degrading behavior, not random 
acts, but rather routine rites of passage that are still 
condoned by senior enlisted and officer leaders--going to strip 
clubs, brothels, red light districts both within the United 
States and overseas, exposure to violent, bestial pornography, 
rape jokes, and constant verbal harassment.
    We should not be surprised that in the age of Steubenville, 
it is also not safe to be a woman at the Service Academies, 
where a culture of silence and the glorification of student 
athletes has allowed a culture of sexual violence and 
mistreatment of women cadets and midshipmen to flourish.
    In a culture that is so deeply rooted in sexist tradition 
in which sexual assault of men occurs even more often than 
sexual assault of women; in which sexualized hazing and abuse 
rituals to allegedly toughen up our male servicemembers are 
routine; in which service women practically become numb to 
sexual harassment because it is so common; when even service 
women often do not support fellow service women who are abused 
or harassed because few of them want to be considered 
troublemakers or rabble rousers; in this kind of proud warrior 
society, where stepping in line is the norm and the very idea 
of being a victim is considered antithetical to everything we 
were taught is strong, heroic, and valued, we need to think 
well outside the box to find transformative solutions.
    In the interest of time, I have submitted several Senate 
bills in my testimony, which SWAN supports for the record. I 
will just highlight three bills at this time.
    The first is Senate bill 871, the Combating Military Sexual 
Assault Act. The second is Senate bill 1032, the BE SAFE Act. 
The third is Senate bill 967, the Military Justice Improvement 
Act, a critical bill that professionalizes the military justice 
system by ensuring that trained, professional, impartial 
prosecutors control the keys to the courthouse for felony-level 
crimes while still allowing commanders to maintain judicial 
authority over lesser crimes and crimes that are unique to the 
military.
    Unless and until we professionalize the military justice 
system and afford servicemembers at least the same access to 
civil redress that civilian victims have, including critical 
access to civil suit, we will not change this culture. Military 
perpetrators will continue to be serial predators, taking 
advantage of a broken system, and tens of thousands of victims 
of sexual assaults, sexual harassment, and rape will continue 
to suck up their pain year after year and decade after decade 
with no hope for justice.
    I now urge the committee please put yourselves in the shoes 
of the average victim, junior enlisted, powerless, and shamed 
into silence and vulnerability. Please think of them and move 
this critical legislation forward. To wait any longer is to 
welcome the next generation of American victims.
    Thank you.
    [The prepared statement of Ms. Bhagwati follows:]
                 Prepared Statement by Ms. Anu Bhagwati
    Good Afternoon, Chairman Levin, Ranking Member Inhofe, and members 
of the Armed Services Committee. Thank you for convening this hearing, 
and for the privilege of testifying before you today.
    My name is Anu Bhagwati. I am the Executive Director of Service 
Women's Action Network (SWAN) and a former Marine Corps captain. SWAN 
has been at the forefront of working to end military sexual violence 
since 2007. We are a non-partisan, veterans-led non-profit 
organization. It is our mission to transform military culture by 
securing equal opportunity and freedom to serve without discrimination, 
harassment or assault; and to reform veterans' services to ensure high 
quality health care and benefits for women veterans and their families.
    I would like to begin by saying that I have a deep, abiding love 
for the military that comes from spending 5 years serving as an officer 
of marines. I want to see our servicemembers succeed and our Armed 
Forces thrive. The issue of sexual violence in the military has been a 
priority for our organization since its inception. Daily interactions 
on our legal and social services helpline with servicemembers and 
veterans have shown us that the impact that sexual violence has had on 
our military in terms of recruitment, readiness and retention is 
profound, and the pain and damage to individual survivors is in many 
cases irreparable. Even more distressing, the continued failure of the 
military to address this situation has caused troops to lose faith in 
their leadership and in the military's criminal justice system. This is 
evident in the abysmally low reporting rates for sexual assaults. 
Servicemembers tell us they don't report primarily for two reasons: 
they fear retaliation and they are convinced that nothing will happen 
to their perpetrator.
    With approximately 26,000 members of the military having 
experienced some form of sexual assault over the past year alone, this 
issue calls for immediate action. Sexual violence presents a challenge 
to the force that requires the same level of planning, leadership and 
execution that goes into the most critical military operations. 
Resolving this crisis will require a comprehensive approach, as well as 
a joint effort by the DOD, Congress, the White House and outside 
experts and advocates. Issues that must be addressed include victim 
services, protection from retaliation, military justice reform that 
reevaluates the role of the commander and removes bias against both the 
victim and the accused, and wholesale changes to military culture. 
These issue areas require solutions that transcend traditions or 
rhetoric--everything must be put on the table and a climate of 
cooperation and change must prevail if we are to restore our military's 
standing in the eyes of its own members, the Nation and the world.
    SWAN believes that part of this change requires a dramatic increase 
to accession rates of women into all the service branches and all 
commissioning sources. The answer to the sexual violence crisis lies in 
part with the need to drastically increase women's presence in the 
Armed Forces. And until women are afforded the same access to all jobs 
and assignments as men, until sex discrimination ends, we will also 
have a military that condones sexual harassment and assault. We simply 
cannot expect to recruit or retain enough women in the force when they 
are treated so poorly. And we cannot expect military culture to improve 
with so few women at the highest echelons of enlisted and officer 
leadership.
    As you may know, I come to this hearing with professional 
experience with these issues, having personally experienced and 
witnessed widespread discrimination and sexual harassment during my own 
military career, having witnessed my own senior officers sweep numerous 
cases of rape and sexual assault under the rug, and having experienced 
personal and professional retaliation for reporting abuse in my units. 
I know intimately what intimidation by my chain of command feels like. 
I know deeply what long-term personal trauma from reporting these 
incidents feels like. And I know deeply how it feels to lose a career I 
loved because my own commanding officers did not support my troops or 
me in doing the right thing.
    For any servicemembers, veterans, or civilians who are here in this 
room or who are watching this hearing today, who have experienced 
military rape, sexual assault, or sexual harassment, please know that 
you are not alone. I believe you. We believe you, and millions of 
Americans across this nation believe you.
    We know that the military justice system has not worked effectively 
for you. We know that the trauma, fear, intimidation and retaliation 
you experienced is a travesty of justice. It is a violation of 
everything that your fellow servicemembers swore to uphold. It is a 
betrayal of the oaths that your officers swore to uphold. You didn't 
deserve this when you volunteered to serve your Nation. I am so proud 
of you for making it through each and every day, while your fellow 
brothers and sisters in arms may have blamed you for what was never 
your fault, while your chain of command and even your own families may 
not have believed or supported you, while the VA made it nearly 
impossible for you to get the benefits you deserved, making you feel 
again and again like what happened to you was your fault and not the 
fault of those who violated your trust.
    Mr. Chairman, we are facing a crisis in the ranks. Our military 
today is a sexually hostile environment in which women and men must put 
up with all kinds of degrading behavior, that are not random acts but 
rather routine rites of passage that are still condoned by senior 
enlisted and officer leaders--going to strip clubs, brothels and red 
light districts both within the United States and overseas, exposure to 
violent bestial pornography, rape jokes and constant verbal harassment. 
We should not be surprised that in the age of Steubenville, it is also 
not safe to be a woman at the Service Academies, where a culture of 
silence and the glorification of student athletes has allowed a culture 
of sexual violence and mistreatment of women cadets and midshipmen to 
flourish.
    In a culture that is so deeply rooted in sexist traditions, in 
which sexual assault of men occurs even more often than sexual assault 
of women, in which sexualized hazing and abuse rituals to allegedly 
toughen up our male servicemembers are routine, in which service women 
practically become numb to sexual harassment because it is so common, 
when even service women often do not support fellow service women who 
are abused or harassed because few of them want to be considered 
trouble-makers or rabble-rousers, in this kind of proud warrior 
society, where stepping in line is the norm and the very idea of being 
a victim is considered antithetical to everything we are taught is 
strong, heroic, and valued, we need to think well outside the box to 
find transformative solutions.
    Mr. Chairman, several bills related to military sexual violence 
have been introduced in recent weeks by members of this committee and 
other congressional champions for reform. Some bills address the need 
to improve victim services, some address the critical need for UCMJ 
reform, and others are focused on the impact that sexual assault and 
sexual harassment have on veterans. The majority of these are 
bipartisan and bicameral, which speaks to the collective approach 
required to see real change happen. I would like to highlight these 
bills and urge the committee to give them serious consideration as it 
moves forward with this year's National Defense Authorization Act:

         S. 538 which modifies the authority of commanders under 
        Article 60.
         S. 548 the Military Sexual Assault Prevention Act which 
        requires retention of all sexual assault reports, restricted 
        and unrestricted for 50 years, and requires substantiated 
        complaints of sexual-related offenses be placed in the 
        perpetrator's personnel record.
         S. 871 the Combating Military Sexual Assault Act which would 
        require the Air Force's special victims counsel program be 
        implemented DOD-wide, prohibit sexual acts and contact between 
        instructors and trainees, provide enhanced oversight 
        responsibilities to the Sexual Assault Prevention and Response 
        Offices and make Sexual Assault Response Coordinators available 
        to all National Guard troops.
         S. 967 the Military Justice Improvement Act, a critical bill 
        that professionalizes the military justice system by ensuring 
        that trained, professional, impartial prosecutors control the 
        keys to the courthouse for felony-level crimes while still 
        allowing commanders to maintain judicial authority over crimes 
        that are unique to the military and requiring more expeditious 
        and localized justice to ensure good order and discipline.
         S. 992 which would require Sexual Assault Prevention and 
        Response personnel billets to be nominative positions.
         S. 1032 the BE SAFE Act that would mandate dismissal or 
        dishonorable discharge of those convicted for specific sex 
        crimes, remove the 5 year statute of limitations on sexual 
        assault cases and allow for consideration for accused transfer 
        from the unit.
         S. 1041 the Military Crimes Victim Act that extends crime 
        victims' rights to offenses under the UCMJ.
         S. 1050 the Coast Guard STRONG Act that requires the Coast 
        Guard to implement sexual assault prevention and response 
        reforms.
         S. 1081, the Military Whistle Blowers Enhancement Act which 
        would help protect victims from retaliation and reprisal by 
        expanding protections under the existing Whistleblower 
        Protection Enhancement Act for Federal workers, require timely 
        Inspector General investigations, ensure discipline for those 
        who retaliate and improve corrective relief for victims.

    Unless and until we professionalize the military justice system, 
and afford servicemembers at least the same access to legal redress 
that civilian victims have, including critical access to civil suits, 
we will not change this culture. Military perpetrators will continue to 
be serial predators, taking advantage of a broken system to prey on 
victims, and tens of thousands of victims of rape, assault, and 
harassment will continue to suck up their pain, trauma, shame and 
humiliation, year after year, and decade after decade, with no hope for 
justice.
    Beyond just punishing bad behavior, a professional, fair and 
impartial legal system aids in prevention training. It creates a bright 
shining line that is the hallmark of effective military training. If 
you do the crime, you do the time. It creates a deterrent and a respect 
for laws and regulations. That is what maintains good order and 
discipline within the ranks. That is also what will restore the full 
faith and confidence of troops in military commanders and the military 
justice system.
    As entrenched as military sexual violence is right now, SWAN is 
convinced that the military can transform its culture, because it has 
done so in the past. In the 1980s, the military took decisive action to 
counter soaring rates of drinking and driving. It didn't treat driving 
under the influence (DUI) as a lapse in professionalism or bad 
judgment, as it so often does sexual assault. It didn't just hold 
safety stand-downs and attempt to train its way out of the problem. 
Instead the military instituted firm, fair policies that made getting a 
DUI what the military calls a ``showstopper.'' If you got caught 
drinking and driving, you faced discipline, prosecution if appropriate 
and an end to your career. In less than 10 years, alcohol related 
incidents in the military were brought below civilian statistics. To 
this day, servicemembers know what will happen to them if they get 
caught drunk behind the wheel. The military treated DUI as a crime, 
just like it needs to treat sexual assault as a crime.
    I now urge the committee: please put yourselves in the shoes of the 
average victim--junior enlisted, powerless, and shamed into silence and 
invisibility. Please think of them, and move this critical legislation 
forward. To wait any longer is to welcome the next generation of 
American victims.
    Thank you.

    Chairman Levin. Thank you very much, Ms. Bhagwati.
    Mr. Altenburg?

STATEMENT OF MG JOHN D. ALTENBURG JR., USA, RETIRED, CHAIRMAN, 
AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON ARMED FORCES LAW

    General Altenburg. Thank you, Chairman Levin, Ranking 
Member Inhofe, and members of the committee, for allowing me to 
testify here today.
    These views are my personal views. They do not reflect the 
views of DOD, the American Bar Association, or any other 
entity.
    We all agree, I think, that the problem of sexual assault 
in the military is appalling. How to solve this issue is 
critical to our Nation's ability to field an effective military 
force. I approach this issue from a perspective shaped by three 
experiences.
    First, my service as an enlisted soldier. Including reserve 
time, I was an enlisted soldier for more than 5 years, 
including a year in combat.
    Second, my service as an Army Judge Advocate for more than 
28 years, including almost 8 years personally prosecuting 
serious crimes in the United States and Germany and, later, 
another 6 years as a SJA in the two busiest general court-
martial jurisdictions in the Army, and I deployed with both of 
those organizations. I have prosecuted and I have overseen the 
prosecution of numerous rape and sexual assault cases.
    The third is the fact that I am the father of five 
children. They are all adults now. Two served in the Army, 
including my oldest daughter, who served 6 years Active, most 
of it deployed, and another 6 years in the Reserve. All of this 
after attending and graduating from the military academy at 
West Point. My youngest daughter also is considering military 
service next year.
    Sexual assault in the military is one of the most serious 
problems I have seen in more than 45 years observing military 
issues. We know from accounts of victims that there has been 
inadequate command accountability for addressing this insidious 
problem.
    Clearly, some leaders have failed to take care of victims, 
and many victims have been horribly retraumatized by the 
process, frequently because of insensitive leaders.
    I agree that change is needed, but many of the changes 
already urged and passed by Congress are leading to change that 
is needed to cope with this problem. Many of the changes 
demanded by victims advocates have only been in place less than 
3 years. If we argue for major change, we should check to see 
how effective recent changes have been before more major 
changes.
    There are more than 130 convening authorities across DOD, 
who review and approve or disapprove of findings in more than 
2,000 cases annually. We must be careful of judgments based on 
1 or 2 of those decisions in the last 5 years, compared to the 
10,000 decisions by all the other convening authorities.
    It is not enough to point out that statistics are misstated 
by critics, that survey responses are extrapolated by 
mathematicians to reflect 26,000 unwanted sexual contacts but 
then translated by critics and journalists to be 26,000 actual 
rapes or sexual assaults. This problem is serious. There is no 
need to exaggerate statistics.
    The military prosecutes sexual assault more aggressively 
than most civilian jurisdictions. The military prosecutes many 
cases after civilian jurisdictions decline them. Those who 
claim otherwise simply don't know the facts.
    No commander ever refers a case to a general court-martial 
without first reviewing the pretrial advice of his or her SJA. 
Those who say that non-lawyers run the prosecution of cases do 
not understand how fully commanders understand their quasi-
judicial responsibilities and the direct link those duties have 
with the combat readiness of the force.
    Nor do critics understand that lawyers are fully engaged in 
the exercise of prosecutorial discretion. Rarely does a 
commander not follow the recommendation of the SJA. Taking 
authority from commanders and giving it to lawyers solves 
nothing, in my opinion. It is a 50-year-old solution looking 
for a problem to solve. Lawyers are already fully engaged.
    Prosecution is critical to prevention, but only leader 
accountability will solve this problem in all of its complexity 
the same way leader accountability in the 1970s began to solve 
race issues and in the 1980s to counter the misuse of alcohol 
and drugs and drunk driving.
    There have been crises in child abuse and spouse abuse in 
the military. In each instance, military leaders created the 
change that was required. Withholding disposition authority to 
a higher level was instrumental in each of those matters.
    Leaders must understand that while sexual assaults occur 
with similar frequency in the civilian sector, the military 
setting creates two unique circumstances that commanders must 
address. One, a unique opportunity for predators unlike 
anything outside the military.
    The professor or teacher with a student in no way compares 
to a military supervisor and a young trainee. Consent as a 
practical matter, in my opinion, is impossible for a trainee. 
There should be strict liability for supervisors in the 
military training environment.
    Second, a unique vulnerability of victims, who frequently 
don't realize the many ways they can report an assault, that 
they could even prefer the charges themselves or go to six or 
seven different possible places to report, even personally 
prefer charges, as I said. That is because of the intimidating 
unit environment for young soldiers, as alluded to earlier.
    If we are to modify the military justice system, then it 
must be done with care to understand fully the complexity and 
the balance of a system and to think through the potential 
unintended consequences. Holding leaders accountable can be 
approved immediately. The leaders who testified earlier will 
see to that.
    I look forward to your questions.
    Chairman Levin. Thank you very much, Mr. Altenburg.
    Mr. Morris?

  STATEMENT OF COL LAWRENCE J. MORRIS, USA, RETIRED, GENERAL 
                  COUNSEL, CATHOLIC UNIVERSITY

    Colonel Morris. Good afternoon, Chairman Levin, Ranking 
Member Inhofe, and distinguished members of the committee.
    Thanks for the opportunity to contribute to this important 
discussion.
    I am here as a citizen, 2 years removed from having served 
as the Army's Chief of Advocacy, which is a civilian position 
charged with implementing the improved training of Army 
prosecutors and defense counsel regarding sexual misconduct.
    Before that, I had the great privilege of serving in 
uniform for 30 years, 27 of them as a Judge Advocate around the 
world, trying about 100 courts-martial both as a prosecutor, 
including capital cases, and a defense counsel and then 
supervising the trial of many others; serving as the SJA, the 
chief legal adviser to general court-martial convening 
authorities in the States and while deployed and as the SJA or 
general counsel at West Point.
    Before I served as the chief prosecutor for the Guantanamo 
Bay war crimes trials, I sought the opportunity to serve as the 
Army's Chief Public Defender, supervising the 300 or so Judge 
Advocates charged with the ethical and independent defense of 
their fellow soldiers. I have five brief observations.
    First, the military justice system essentially works as a 
productive collaboration between commanders and lawyers. Now 
though the system is command run, commanders rarely make a move 
and certainly not a significant move involving cases of the 
complexity and gravity of sexual misconduct without consulting 
their counsel.
    These aren't episodic or formal occasions. They are 
constant and deeply embedded in the law, procedure, and 
military culture.
    Second, the military justice system is essential for good 
order and discipline. Command is a sacred trust, and it must 
include the ability to effect discipline in a military whose 
sole purpose is to fight and win our Nation's wars.
    We do take a risk in giving that awesome power to 
commanders, which is why it is notable and damaging when they 
breach it. But it is an essential element of the authority and 
trust of a servant leader.
    Third, the military tries hard cases. I know lots of 
civilians who do, too. But I also know that because of the 
military's culture and the abundance of resources, that the 
military is generally more willing to try the close case 
undeterred by possible acquittal.
    I did it many times, and I know my experience was not 
unique. Cases should never be tried for show or out of 
solidarity, but victim trust can be sustained and enhanced when 
the victim devotes legal resources and energy to trying a close 
case.
    Fourth, we must be mindful of soldier rights and command 
influence. Dating as far back as Harry Truman's critical 
letters from the front, through my generation's service as 
Judge Advocates, the greatest concern about military justice 
has been its most persistent scourge--unlawful command 
influence.
    In our rightful zeal to eradicate sexual misconduct, we 
must make sure that all participants in the process, all 
participants exercise independent and dispassionate judgment in 
that in the process, accused soldiers do not face a compromise 
of their rights under the Constitution or the UCMJ to fully 
defend themselves, including the ability to prepare cases and 
call witnesses on their behalf.
    Fifth and last, we are right to demand a lot from our 
military and our military justice system, but only what each is 
reasonably able to accomplish. Any justice system is a reactive 
instrument. We do and we should have high expectations of our 
military and its justice system, but we also must candidly face 
the attitudes toward sexuality that our patriotic volunteers 
bring with them into the force and recognize the commitment in 
education and leadership that is required to modify them.
    Congress should be satisfied that the military is doing all 
it can to remove factors that might make sexual misconduct 
easier, including the availability of alcohol, unsupervised 
living arrangements, and the consumption of pornography.
    Our military justice system never has been static, and 
there are changes I would recommend to better balance 
efficiency and soldier protections. The committee would be well 
served to demand carefully prepared data on current practices 
and to understand how the commitment to justice is 
operationalized in a serious and appropriate manner.
    Thanks, and I look forward to your questions.
    [The prepared statement of Colonel Morris follows:]
       Prepared Statement by COL Lawrence J. Morris, USA, (Ret.)
    The commander is indispensable to the military justice system 
because the only reason for a military justice system is the 
maintenance of good order and discipline. Removing this tool--or 
entrusting it to lawyers with no leadership responsibility--would 
diminish the authority of command and the quality of the force. We so 
often talk about command as a sacred trust that we can forget both the 
noun and the adjective: it really is trust, the rightful burden of 
leadership placed on commanders by our history, laws, and tradition; 
and it really is sacred because the leaders are the servants of those 
they lead--a responsibility that translates to caring for the led with 
an intensity and comprehensiveness that has no civilian equivalent.
    We have the most robust military justice system in the world, not 
only because we are the world's most powerful military, but because we 
are the world's best led, most disciplined, and most ethical force. 
Leaders do not lead primarily out of fear or fear of consequences--but 
they need to have available to them an array of consequences to justly 
and swiftly address misconduct. Commanders' responsibility under the 
Uniform Code of Military Justice (UCMJ) is not one more additional duty 
but is woven into the mantle of command, part of who they are, an 
indispensable element of their authority and their commitment to 
mission and people.
    I speak from the perspective of a judge advocate privileged to have 
served 27 years on active duty, most of them in or near the courtroom. 
I followed my time in uniform with 2 years' service as the civilian 
chief of advocacy for the Army, responsible for implementing the 
special victim prosecutor program and the training and development of 
prosecutors and defense counsel. My greatest concern is that the 
committee understands how the system really works--how closely 
commanders and lawyers are tied together so that it does not impose a 
remedy that does not fix the problem.
    In every unit at all levels of our military, commanders consult 
their judge advocates on the full array of disciplinary options--a 
uniquely rich continuum that runs from ``admonishment'' (getting in the 
face of a subordinate quickly to correct an error) through a range of 
administrative and nonjudicial measures, all the way to the felony-
level general court-martial. I know that there are captains and 
lieutenants across the Services who have developed practices similar to 
what I did as a young prosecutor, keeping a copy of the punitive 
articles of the UCMJ and the discussion to R.C.M. 401 (which explains 
all of the factors, many peculiar to the military, that leaders should 
consider in deciding whether to punish and how to calibrate that 
punishment) under the glass on my desk to be able to talk through not 
just the possible offenses but the rationale behind selecting a 
disciplinary choice. The leaders benefit from a judge advocate's best 
advice--what the law requires, what the evidence will support, the 
likely outcome--and we lawyers benefit from the leader's perspective on 
the impact of the infraction in their unit, factors that might not be 
as obvious or intuitive to us at our remove. As one of many examples, 
after a few years as a prosecutor I was evaluating a case involving a 
soldier who drowned after horseplay among buddies on a boat on a cold 
German lake. It was a true tragedy--friends whose conduct got out of 
control--but the brigade commander whom I advised, nearing his 30th 
year in the Army, explained to me why, in the Transportation Corps, his 
soldiers had to be ``on'' regarding safety at all times, and that the 
tragedy was more profound because it reflected such a departure from 
that mindset. Such commander-lawyer collaborations happen all day every 
day across our military, a seamless and collaborative dialogue meant to 
bring the appropriate discipline in each individual case. Of course 
these conversations occur with particular care and urgency regarding 
sexual misconduct, especially when the victim is a military member and 
even more so when in the same unit.
    Besides the constant advice, the law requires a commander to obtain 
the written advice of his senior legal advisor, the staff judge 
advocate, on several matters, including jurisdiction and the 
availability of evidence, before he can send a case to a general court-
martial; in this pivotal circumstance the lawyer holds the keys to the 
courtroom, and a commander is disabled from convening a general court-
martial without that independent advice. Therefore, the suggestion that 
increased lawyer involvement would mean better preparation and trial of 
sexual misconduct might not appreciate the extent to which lawyers 
already are involved in the preparation and development of a case, not 
to mention their actual authority, as in their pretrial advice for a 
general court-martial.
    These are among the unique features of the military justice system, 
many of them stemming from the demands placed on servicemembers and 
leaders for which there is no civilian equivalent--disciplinary 
measures that can be administered with justice and efficiency around 
the world during wartime and peace. Because it is an instrument of 
command, however, the system also carries the potential to be distorted 
by command influence or control, a risk well known to most observers of 
and participants in the system. In addition to all my years in the 
courtroom I also served as the chief of criminal law for the Army's 
largest group of prosecutors, and the deputy staff judge advocate and 
staff judge advocate in different combat divisions. In my years as the 
chief of the criminal law department at the Army's law school I not 
only taught judge advocates but rising battalion, brigade and division 
commanders as they prepared for their judicial roles. On many occasions 
I took difficult cases of sexual misconduct, as well as child sexual 
abuse, to commanders. In many instances there was no guarantee of 
conviction but there was a strong reason to try the case and we were 
able to develop the victim's confidence. In all instances the 
commanders underwrote risk and took the cases to trial; I have no doubt 
that many of these cases would not have been tried by civilian courts 
either because of lack of resources or concern about acquittal. I know 
from my direct experience that in many of these instances the local 
civilian jurisdiction that could have tried the case, in places as 
disparate as Oklahoma, Panama, Korea, New York, and Germany, was 
pleased to have the military take the chance on the case. It was also 
essential that the command brought those cases, signifying the 
leadership's interest in servicemembers' conduct whether on or off 
duty, on the installation or off. This should be taken into account in 
considering how confusing it would be to set apart a category of 
offenses, such as sexual misconduct or common law crimes, from the rest 
of the offenses under the UCMJ. A commander's unitary authority to 
attack all criminal misconduct is essential to his effectiveness and to 
the military's and society's expectations of the commander. The Supreme 
Court recognized the wisdom of the military's ability to attack all 
such misconduct in Solorio v. United States, 483 U.S. 435 (1987) when 
it removed the service connection requirement from military 
prosecutions; Congress should honor that analysis in refusing to 
fragment accountability and responsibility for addressing servicemember 
misconduct.
    It was not long ago that the military justice system was criticized 
by courts and commentators for insufficiently protecting the rights of 
accused soldiers; though it has rightly regained a reputation for 
balanced justice, it must maintain and earn that with each wave of our 
All-Volunteer Force. My first assignment as a judge advocate was as a 
defense counsel and the last job I sought in the Army was as its chief 
public defender, responsible for our 300 uniformed defense counsel 
around the world. There are several protections under the UCMJ that 
civilians would covet--including a broader privilege against self-
incrimination, more liberal right to counsel, and much more liberal 
rules in its ``grand jury'' proceeding. Those protections also include 
Article 60, the authority of a commander who convened a court to 
disapprove the findings or sentence. While I agree that it is 
reasonable to require a commander to state his reasons for granting 
such relief--most any judicial officer anywhere carries a similar 
obligation of accountability--modifying or removing this authority 
still represents a reduction in servicemember protections without a 
compensating change elsewhere. The committee should be careful when 
making any change, however slight, in the carefully calibrated and 
long-developed balance between command interests and protection of 
servicemembers--in a system in which any servicemember can swear out 
charges and where you can be sentenced to life in prison based on the 
votes of four members of a 5-person jury. Still, the greatest worry of 
a servicemember suspected or accused of a crime is that the command can 
run the system in a way that keeps his ample rights and protections 
from taking flesh in the reality of the disciplinary process. These 
concerns would persist under a lawyer-run system, as the lawyers would 
work for and with commanders, and we must be most vigilant to keep 
unlawful influence from sprouting in informal ways, such as speech and 
conduct that can telegraph to leaders that they should dispose of cases 
in a certain manner or that would undermine an accused's sixth 
amendment right to a fair trial by intimidating potential witnesses or 
chilling the cooperation or candor of leaders or fellow servicemembers. 
Soldiers trust our system, a hard-earned but evanescent confidence that 
is the product of generations of careful practice, backed by draconian 
sanctions for unlawful influence; if servicemembers do not consider the 
system to be essentially fair it will forfeit its legitimacy and 
undermine the effectiveness of leaders and the lawyers who advise them. 
All of which only reminds us of the inherent limitations of any justice 
system.
    The military justice system certainly is an appropriate instrument 
for attacking sexual misconduct; moreover, the availability of 
nonjudicial and administrative measures means that it can attack 
``precursor'' conduct short of sexual assault because it has tools 
unavailable to the civilian world. But military justice, like any 
justice system, is primarily reactive and blunt. It addresses conduct 
after it occurs. While general deterrence is an appropriate purpose for 
a justice system, and we should have confidence that a potential 
criminal calculates the consequences when contemplating criminal 
behavior, this focus on the consequence stage illustrates the inherent 
limitations of justice--and its dependency on culture more than 
anything to set society's standards. Our young volunteers come to us 
from a society that sends at best conflicting messages about human 
sexuality, with the edifying aspects and elements of responsibility and 
respect often buried under its dulling ubiquity and focuses on 
``consequence management.'' Our servicemembers are the products of the 
values and examples set by moms and dads, schools and churches, movies 
and music. The military has an admirable history of being at the lead 
on social change--racial equality--and on behavioral change--alcohol 
and drugs; it recently proved its flexibility and fidelity to civilian 
leadership in implementing the gay rights policy. But all of those 
changes required education and leadership--and justice was but a 
component of it. It is equally true with sexual misconduct. We must 
candidly deal with the experiences and attitudes of those whom society 
entrusts to us and immerse them in a culture of team work, honor and 
respect, one reason that the emphasis on stinging consequences for 
sexual misconduct by leaders involved in basic training and the first 
duty station is especially important. Unlike some initiatives, there 
are multiple components to the effort against sexual misconduct because 
sexuality is unique in the human dynamic and especially tough to try 
because cases are heavily testimonial. When the military was concerned 
with chubby recruits it gave them extra PT and adjusted the recipe card 
for SOS. When it was concerned about drunken driving it cut off alcohol 
sales during the duty day and hit all ranks with mandatory reprimands 
for DUI. Mandatory drug testing caused drug use to plummet and 
sustained and credible testing kept it low. None of these measures 
eradicated the conduct but all of them brought it under control. Sexual 
misconduct involves a more profound reorientation of attitudes, and 
merits tough and just consequences--but also involves reducing the 
opportunities for misconduct by paying attention to the availability of 
alcohol, combined with virtually unsupervised living arrangements for 
large numbers of young, single people. Attention also should be paid to 
the pornography epidemic in society and strong evidence of its heavy 
consumption in the ranks.
    To say that attacking this problem requires a bit of judicial 
humility does not mean reticence or a lack of ambition. The problem can 
be attacked with the same unity of effort that has characterized prior 
successes, and the consequence portion of that continuum should always 
be scrutinized to ensure it is both just and fair. Society holds the 
military higher in esteem than almost any institution--and its ability 
to lead and manage social change is as much a part of that reputation 
as fighting with ethical ferocity. The military justice system is as 
old as our country but the UCMJ is only a little over 60 years old. As 
with many of my colleagues, I could suggest to you several changes I 
would make if I had the authority to do so--but they all must come 
about after careful study and anticipation of collateral consequences. 
Congress must answer the fundamental questions implicit in some of the 
legislation you are considering, including whether it is the system or 
the people employing it who are the greater concern and how you would 
measure change--do we think reports are not currently made that would 
be made? That cases would be tried that are not tried? More 
convictions? Harsher sentences?
    The system should not remain static, but Congress should require 
hard data on sexual misconduct, candor and clarity regarding living 
arrangements and supervision, study of cultural influences that our 
members bring with them as well as the culture they enter--and how the 
justice system enforces good order and discipline in a manner that is 
fair, swift, and just.

    Chairman Levin. Thank you all.
    First is the question of retaliation, what we know long 
before today's hearing, but it has been emphasized at today's 
hearing is that most of the women who do not report, or most of 
the troops that don't report--men or women--do not do so 
because they are afraid of retaliation.
    A huge percentage are very much afraid of humiliation or 
embarrassment. But it is the retaliation issue which we want to 
put some focus on, or at least I want and I think all of us 
want to put some focus on.
    The question is whether or not, and I think, Ms. Bhagwati, 
you made reference to one of the bills here, Senator 
Gillibrand's bill, which would require that serious offenses be 
sent to a new disposition authority outside of the chain of 
command for a determination of whether the allegation should be 
prosecuted at a general or special court-martial.
    My question is how would doing that stop retaliation? That 
is the question I guess I will ask of you, Ms. Bhagwati.
    Ms. Bhagwati. Well, the first thing it will do is restore 
faith and trust in the system. Right now, victims don't have 
any of that. They have lost all hope in the military justice 
system, unfortunately.
    Retaliation happens in many respects. We see on a day-to-
day basis that our callers, both servicemembers and veterans 
who have recently been discharged, have been punished with 
anything from personal retaliation from roommates and family 
members to professional retaliation by their chain of command 
from the lowest levels to the highest levels, platoon sergeants 
all the way up the chain.
    They are also retaliated in more kind of insidious ways. 
They are given false diagnoses, mental health diagnoses, like 
personality disorders, which bar them from service, which force 
them to be discharged, which ban them from getting VA services, 
VA benefits. So it is comprehensive retaliation.
    Chairman Levin. Mr. Altenburg, let me ask you a question 
about the investigation process. Colonel King said that the 
investigation in the Marines, and I think this is generally 
true, is handled by professional investigators. Is that your 
understanding?
    General Altenburg. That is my understanding, and that is a 
recent change, I mean, in the last 3 years, I think.
    Chairman Levin. Now have you read the bill, Senator 
Gillibrand's bill?
    General Altenburg. I have.
    Chairman Levin. If there were a new disposition authority 
created, independent of the chain of command that would make a 
determination of whether allegations should be prosecuted at a 
court-martial or not, would that affect the investigation 
process?
    General Altenburg. I don't think it would necessarily. If 
they left the investigation with the CID in the Army, the NCIS 
in the other Service, and the Air Force Office of Special 
Investigations, then they would do their investigation, and 
then it would get passed, I guess, to this court-martial 
command is what it was called 50 years ago when people tried to 
do that.
    Chairman Levin. All right. Now in terms of who would make 
the decision, as you read the bill, who would make the 
decision, the determination as to whether an offense meets the 
threshold of a serious offense that would have to be referred 
to the new disposition authority? Who would make that 
determination?
    General Altenburg. Excuse me, sir. I assume a lawyer would. 
Just as now, lawyers make no command decisions----
    Chairman Levin. Lawyer, which lawyer, where?
    General Altenburg. Prosecution, a prosecutor.
    Chairman Levin. In that same independent office? I mean, 
that is the threshold question as to whether or not there is 
evidence of a serious offense or not so that that new 
independent approach would be triggered. Who would make that, 
as you read the bill?
    General Altenburg. As I read the bill, a lawyer and the SJA 
would make that call, as I read the bill.
    Senator Levin, if you please----
    Chairman Levin. Does anyone else have a--yes, go on. Go on.
    General Altenburg. I beg your indulgence in making a couple 
of comments, one related to retaliation, the other regarding 
investigations. Investigations have now become mandatorily done 
by the professional investigative services. That is a change 
that was a response to this problem.
    Second, with regard to retaliation, I think it is even more 
complex and subtle than Ms. Bhagwati talks about. I agree with 
everything that she said, that she has experienced. But it is 
so subtle that it can just be soldiers attending an 
investigative hearing and glowering at the victim to make her 
feel uncomfortable.
    Chairman Levin. Do you have any suggestions as to how we 
can get to the peer pressure type of retaliation?
    General Altenburg. I think the only way to get to that is 
through the command, is through leadership. They have to seize 
this issue. They have to understand the cultural dimensions of 
it, realize how unique the military is in terms of the 
vulnerabilities of the victim, and the opportunity for this 
predator mentality that it is like a wolf around a pack of 
sheep that seeks out different types of people and tests them 
and probes them and then finally decides to strike when they 
are one-on-one.
    I mean, whether they do it subliminally or whether they do 
it with malice aforethought, they are predators to the Nth 
degree, and many of them, we are finding from studies, are 
repeat offenders and they are serial offenders. Some of the 
things that have been suggested to keep people from coming in 
the military who have that kind of background will be--will 
help solve this.
    But that mentality and that culture is what the leaders 
have to attack. The same way they attacked racism in the 1970s 
and the 1980s. There were racist lieutenant colonels and 
colonels, and they got discovered. They got out.
    You couldn't cope. You couldn't deal without modifying your 
behavior or getting out, and we have done that with several 
other social issues. It takes leadership. That doesn't mean 
that all the leaders are going to be the good people and the 
ones that get it, but that is how we will effect change in this 
culture.
    Chairman Levin. Senator Inhofe?
    Senator Inhofe. Thank you, Mr. Chairman.
    First of all, Ms. Bhagwati, I appreciate your comments 
about the Naval Academy. I am concerned enough about it that I 
called Admiral Mike Miller, who visited this morning, the 
superintendent up there. This is a deplorable situation that we 
need to pursue.
    Not being a lawyer, I am going to ask a question a little 
bit differently than the chairman did of the two. Perhaps you, 
Colonel Morris, or you, General Altenburg. On the second panel, 
I asked a question that came out of a recommendation from this 
Defense Legal Policy Board report. Now, that is just a week 
old, and so I doubt seriously that everybody has spent some 
time reading it.
    They feel very strongly about the notion that commanders 
have the ability to deal swiftly, fairly, competently, and 
visibly. I asked the question of that panel, and of course, you 
guys are JAGs so you would come from a different perspective, 
perhaps, that creating the centralized initial disposition 
authority with an oversight by an O-6 Judge Advocate.
    How would a system like this, or would it, impede with the 
ability to deal with misconduct using those four 
characteristics--swiftly, fairly, competently, and visibly? Any 
thoughts about that, either one of you?
    Colonel Morris. Senator, I think that there is no doubt 
that lawyers can and always have accurately been able to assess 
the evidence, assist in the energizing of investigators, and 
give their best legal analysis and advice to commanders. So in 
terms of analyzing a case, there would be no degradation in a 
kind of a JAG unique bubble there, working those cases.
    The concern is what you would give up, and what you would 
give up is the unitary aspect of a commander being responsible 
for everything that happens in his unit. The military justice 
system is a component of that. It is not the only one, 
obviously. If you lead just out of fear or lead just out of 
consequence, you are not a full-spectrum leader.
    But to be able fully to lead, you need to be able to have 
the ability directly to effect discipline, which means a full 
range of punishments. I mean, we are talking at the court-
martial end of the spectrum. But what the military justice 
system provides is punishments that civilians would love to 
have, from admonition, reprimand, nonjudicial punishment.
    A lot of the conduct that is kind of the low level and 
sometimes precursor conduct to serious sexual misconduct can be 
addressed directly, severely, and swiftly with that range of 
sanctions available to commanders.
    Senator Inhofe. I appreciate that answer because that also 
answered my second question, which was to have you go into this 
range that they would have that is not found in the civilian 
approach to this. You have done that very well.
    Let me ask you something. As I read as a non-lawyer, one of 
the proposals would, and I use the word ``require,'' would 
require the defense to request interviews with the complaining 
witness in a sexual assault case, but would prohibit the 
defense from interviewing the complaining witness unless it was 
in the presence of the trial counsel, counsel for the witness, 
or the outside counsel.
    Now General Altenburg and Colonel Morris, do you think that 
that restriction on the defense would be workable in a military 
justice case?
    General Altenburg. I would say, first of all, that no one 
can force a victim to talk to a defense counsel. I mean, it 
may, as a practical matter, impede the trial of the case. But 
certainly before an investigative hearing----
    Senator Inhofe. It says prohibit. So go ahead.
    General Altenburg. The proposal would prohibit the defense 
lawyer from talking to the victim?
    Senator Inhofe. From interviewing, yes.
    General Altenburg. I think it--I understand why victims 
don't want to talk to the defense lawyer. I get that. But in 
our system of justice in this country, they have to talk to the 
defense lawyer eventually. They have to be confronted.
    I think that is something that would tilt the delicate 
balance of military justice too much against the accused. It 
would impede the preparation of trial.
    Senator Inhofe. Would it impede it enough to question the 
constitutionality of such an arrangement?
    General Altenburg. I am not qualified, I don't feel 
qualified at all to comment on the Constitution. But I have no 
doubt that there would be a motion in every case where that was 
exercised. The defense would have a motion at trial that they 
were prohibited from preparing for trial, and they couldn't 
adequately defend their client because they couldn't----
    Senator Inhofe. I see. Any thoughts on that, Colonel?
    Colonel Morris. Similar, Senator. The concern would be, 
ultimately, it is your Sixth Amendment right to confront a 
witness, which only has to happen in the courtroom. The 
question would be then whether that Sixth Amendment right is 
effectively exercised, depending on your ability to prepare.
    I don't think it would be automatically unconstitutional to 
limit access to the victim ahead of time. But as always, it 
ends up with what details otherwise attach to that.
    One other piece of that is the Article 32 investigation, a 
unique process to the military. It is often and inaccurately 
analogized as the military's grand jury. But it is a required 
step before a case can go to a general court-martial.
    In that process, the Government most always would present 
its witnesses, which is an opportunity, a controlled 
opportunity for the defense to cross-examine a complaining 
victim, a complaining witness there.
    Senator Inhofe. I see. I see.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you very much, Senator Inhofe.
    Senator Reed.
    Senator Reed. Thank you very much, Mr. Chairman.
    Thank you, witnesses, for your testimony. It is 
extraordinarily helpful dealing with an issue of great not only 
significance, but that goes to the essence of our military 
force.
    Colonel Morris, just as a point of reference, when did you 
leave Active Service?
    Colonel Morris. 2009, Senator.
    Senator Reed. 2009, and one of the issues that everyone has 
spoken about is accountability, and I think Ms. Bhagwati and 
her experiences suggest that there really isn't very good 
accountability when you go--when your squad leader ignores you, 
when your platoon leader ignores you, et cetera.
    From your most recent perspective, how common was it for a 
company commander to be relieved for or have a bad report done 
because he or she was indifferent to complaints by subordinates 
about mistreatment and sexual misconduct?
    Colonel Morris. I would think I would remember if I knew of 
any.
    Senator Reed. Yes.
    Colonel Morris. My experience, of course, was quite the 
opposite, that they were highly energized and that you had an 
intensive and immediate collaboration. It is really three 
parties--the leader, the lawyer, and the law enforcement 
person--and all of them working closely together.
    Senator Reed. If the chain of command wants to retain these 
powers under UCMJ, it has to be a chain of command that is 
accountable. We all agree on that. What I think we are looking 
for, and I am going to ask Ms. Bhagwati to comment, too, is 
that it is hard to put a finger on specific cases where squad 
leaders, platoon leaders, et cetera, who are indifferent.
    It goes back to Major General Altenburg's point. If you 
were insensitive and made insensitive racial comments, if you 
were--had other behaviors back in the 1970s, you would not last 
very long, in the 1980s, in the 1990s, et cetera. The question 
is, do you think we are getting close to that, or we are just 
beginning that process now with respect to sexual assault?
    If we can't get there through the existing rules, then we 
are going to have to make some changes. So, General Altenburg?
    General Altenburg. I think, candidly, that we are just 
getting at it in the last year or 2. I think that for a variety 
of reasons, including fighting two wars, I guess, it wasn't the 
priority that it should have been and certainly that it is now.
    I think that commanders must get it first, and then they 
have to work their way through the rest of the people that work 
for them, that the commanders are starting to understand the 
dimensions of this. They are starting to learn that false 
allegations are a very low rate, even though the conventional 
wisdom among men is that they are high.
    Things like that. As they become more knowledgeable about 
this issue, then they will do a better job of getting a handle 
on it. It is subtle. It is complex, and so is the change.
    I mean, it is somebody caring enough to get up from the 
computer and go out and make sure he is talking to the troops 
and make sure he is looking them in the eye when he is talking 
to them about whether it is in the motor pool or whether it is 
at formation or on physical training in the morning and 
watching how they operate and what they say.
    Good leaders have always done that, and the kind of 
mediocre leaders that Ms. Bhagwati is talking about have never 
done that. Those kind of people have always been a problem for 
us.
    Senator Reed. Let me ask you another question, and I want 
Ms. Bhagwati to have an opportunity to respond. There is a 
certain sort of a macro issue here. We have a warrior culture, 
which has been dominated for centuries by males.
    We have an expectation that these now men and women will be 
able to destroy our enemies, literally, and at the same time 
give their own lives for their comrades and for their country. 
In that culture, is it likely that we will find people who 
function very highly as warriors, but are in fact, as you 
describe, the sexual predators and that it is hard for the 
system to sort those out. It is hard for individual commanders 
to say, okay, I am going to really make an example of this, my 
best soldier.
    General Altenburg. I don't think now it is hard for a 
commander to do that. As they learn how invidious this conduct, 
this behavior is, I think that more and more of them are going 
to be willing to go after this.
    Senator Reed. Thank you.
    General Altenburg. What is remarkable is that it is a 
manhood ``boys will be boys'' problem that enlightened 
commanders will get a handle on. I visited Ms. Bhagwati's web 
site last night, and I was--or yesterday, and I was looking at 
some of the documents that she had submitted somewhere. There 
were bad songs, ribald songs, people talking about going in the 
bars and hitting on women and their teammates and all the rest 
of it.
    I thought to myself as I read it, this is 10 years old, Ms. 
Bhagwati, why do you have this stuff out here? I mean, I know 
that was our culture 10 years ago, and it was a 2012 document 
from a unit. That is appalling.
    Senator Reed. Thank you.
    Ms. Bhagwati, please, can you comment on--you have a lot to 
comment on.
    Ms. Bhagwati. Senator Reed, I think, if you are suggesting 
that the military somehow kind of creates a culture of rape or 
there is something----
    Senator Reed. No, I am not.
    Ms. Bhagwati. No. Because I would disagree with that. I 
don't think the military creates rapists. I think, however, we 
still condone sexual violence in the day-to-day, which is 
different. That when we still mistreat women, and I have not 
met a woman in the military yet who has not experienced some 
form of discrimination or harassment.
    When that is sort of the average experience of a woman in 
the military, a culture of harassment is created, and sexual 
predators will thrive in that culture. These serial predators 
that are entering the ranks, they are hitting a target-rich 
environment. They really are.
    I think until we create systems and policies, until we 
tighten the military justice system, until we potentially open 
up additional forms of redress like civil suits to 
servicemembers--I think we really have to think outside the box 
here--we are not going to change that culture. The presence of 
women at the highest echelons of leadership is really 
important.
    We talked today about a presence of women in the Senate 
making a difference. Well, the presence of women in the 
military also will make a difference, but only if there is a 
critical mass of women. Right now, there aren't enough women at 
the top.
    Ms. Parrish. Senator Reed?
    Senator Reed. Surely.
    Ms. Parrish. If I could say that this problem predated our 
most recent wars. It predated the increase in women in the 
military. Over half the victims are male. For 25 years, we have 
had scandal, self-investigation, reports pointing to failed 
leadership, reforms failing to address the core issue.
    Until you remove the bias and conflict of interest out of 
the chain of command, you will not solve this problem. The 
retaliation is not about peer pressure. The retaliation is 
about the lower-ranking victim being disbelieved by the higher-
ranking perpetrators and their friends.
    It is about accountability. As I said in my statement, when 
General Franklin overturned the conviction of Colonel Wilkerson 
and then his commander, General Breedlove, supported his action 
and those even who sat on the panel this morning also 
applauding General Franklin, that accountability, that failure 
to hold him accountable, that is--will continue to cause a 
command climate that is promoting sexual assault.
    Senator Reed. I agree with you. I think it is about 
accountability. It is about command climate. But that is about 
commanders stepping up and commanding. Part of that might be 
better UCMJ procedures, but we could improve the UCMJ, but if 
we don't have commanders who are ready to stand up for their 
troops, then we are not going to solve this problem. We are not 
going to fight effectively.
    Ms. Parrish. But sir, if I could just say, until you change 
the culture, and civil rights, when it came to integrating 
blacks in the military, first, there was a Civil Rights Act. 
Fundamental reform was passed.
    Then military commanders decided that it was time to create 
rules and enforce them. You need fundamental reform.
    Chairman Levin. Thank you, Senator Reed.
    Senator Cruz.
    Senator Cruz. Thank you, Mr. Chairman.
    I would like to thank each of the witnesses for being here 
today, for providing testimony on this tremendously important 
topic.
    I would also like to thank the committee for focusing 
attention on this issue. There is no more solemn obligation we 
have than to stand up for and protect the men and women who 
have stepped forward to join our military and to defend our 
Nation.
    When young men and women volunteer to be part of the armed 
services, they are willingly putting themselves in harm's way 
and subjecting themselves to risk of violence or death at the 
hands of our enemies. But they are not putting themselves 
willingly at risk to assault or violence from their superiors, 
from their colleagues, from other Americans. So, I applaud the 
efforts of those witnesses here today and the efforts of this 
committee to get to the bottom of this issue because it goes 
fundamentally to the trust and the duty of protection we owe 
the men and women who are defending us.
    I would note my wife and I have two little girls now. They 
are 5 and 2. So they are not of age where military service is 
at least an immediate prospect. But the reports we have heard 
about the prevalence of sexual assault and harassment should 
disturb every parent, every mother, every father, every 
brother, every sister, everyone who would want our children and 
loved ones to be able to serve in a capacity where they can 
trust their colleagues to be shoulder-to-shoulder defending our 
Nation.
    I would like to begin with several questions addressed to 
all of the panel, the first of which is DOD has estimated, as I 
understand it, that in 2011 there were roughly 19,000 sexual 
assaults in the military. I want to ask the members of the 
panel, in your judgment, how accurate is that assessment, and 
how widespread, how prevalent is sexual assault today in the 
military?
    I would address that to any members of the panel that would 
care to answer.
    General Altenburg. I will start. There was a 2010 survey 
that was probably from the previous year that showed 19,000. 
There was a 2012 survey that showed 26,000 unwanted sexual 
contacts. Hard to tell how many of that is sexual assault. Too 
many, that is for sure, and it indicates a big problem.
    But journalists especially have taken those numbers, 19,000 
in 2010 and 26,000 in 2012, and called them sexual assaults. It 
could have been if I put my hand on Ms. Bhagwati's shoulder and 
she didn't like it and thought it was unwanted sexual contact, 
she would have reported that in the survey.
    I don't know what number of those reported unwanted sexual 
contacts are like that and what number are sexual assaults. I 
suspect that if we drilled down, the number of actual sexual 
assaults is pretty darned disgusting anyway. So, the number is 
way too high. But it is also, it is an extrapolation based on 
how many answered the survey, multiply it by the end strength, 
and you come up with a mathematician's figure of this is what 
it is.
    At any rate, it is obvious, based on the testimony of many, 
many people, that it is far too prevalent in the military, that 
we have unique circumstances that allow it to flourish, and 
that it is going to be a--it is a great challenge to the 
leadership to get at this.
    Senator Cruz. Are there others who would care to amplify on 
the topic?
    Ms. Parrish. Yes, sir. The problem is getting worse. It is 
not improving. Until more victims report, there will not be 
more prosecutions. You will not have more victims report until 
you remove the bias out of the process.
    Professional prosecutors must be able to look at this 
professionally. Convening authorities have this job as a part 
time. They are not trained, and they are biased and conflicted. 
They believe the higher-ranking perpetrator.
    Until you remove that from the system, you are not going to 
fix it. Until more victims report, you won't have more 
prosecutions.
    Transparency is vital. Third-party accountability, that is 
what prosecutors outside the normal chain will bring to this. 
There will be no solution. The problem is getting worse. There 
are more and more victims coming forward.
    Over the weekend, I received a call from one of the 
victims' moms in Fort Hood. When it is unconscionable that we 
give any more time--the patience and deference we have shown 
our military leaders to address this problem has come at great 
costs to our service men and women. It is time to do what our 
allies have done.
    You won't ever get rid of rapes or assaults, but you can 
punish the perpetrators, and you can stop the retaliation.
    Senator Cruz. Thank you for that.
    Let me follow up on Ms. Parrish's comment with a final 
question to the panel, which is, in your judgment, what are the 
major impediments to reporting and prosecuting sexual assault 
today in the military? Are they cultural or structural or 
legal? What are the most important changes that, in your 
judgment, could be implemented to change that?
    Ms. Bhagwati. I would start certainly with 
professionalizing the criminal justice system, which Senator 
Gillibrand's bill certainly will do, while still allowing 
commanders to deal with lesser crimes and military-specific 
crimes. Also there is really no deterrent right now to sexual 
assault in the military, and I think access to civil remedies 
is a very important part of this conversation, and I hope and 
encourage that Members of Congress will work on that in this 
coming year.
    When you can't--we talk about retaliation, there are 
several bills on the table which will do a great many things 
for victims services and to improve the military criminal 
justice system. But civil remedies is what will deal with the 
issue of retaliation, and that is what is available to civilian 
victims in the civilian workforce, where harassment and 
discrimination and assault is also prevalent. But if the 
criminal justice system fails us, in the civilian world we have 
access to civil suits. That is the fallback.
    So I would strongly suggest that.
    Colonel Morris. Senator Cruz, I would suggest two things. 
One is continued, sustained addressing of the conduct at all 
levels. The least of the concerns is the ability effectively to 
prosecute rape cases. The greater concern, not because of 
consequence, obviously, because of the gravity of those, you 
don't need to wake somebody up to pay attention to a rape.
    There is an awful lot of conduct short of rape that is 
repellant, degrading, and harms mission. A clearer intolerance 
for that will do a lot to not just weed out people before their 
conduct becomes more serious, but attack to a degree the 
conduct and the atmosphere that has been suggested as 
constituting retaliation. I am not sure ``retaliation'' is 
exactly the right word, but we sure know that there is no crime 
that is harder to report that a person feels more uncomfortable 
about reporting.
    Fixing some of those things by using the whole array of the 
justice system can do something to redress that, and then 
sometimes action so swift that it makes people's heads turn.
    Look, this afternoon's action at West Point. Just stop the 
functioning of the rugby team for a while, while everybody 
wakes up and pays attention.
    Senator Cruz. Thank you very much.
    Chairman Levin. Thank you, Senator Cruz.
    Senator McCaskill.
    Senator McCaskill. Thank you, Mr. Chairman.
    Let me shift gears a little bit and talk to particularly 
Ms. Parrish and Ms. Bhagwati about victims' experience as they 
begin down this road. I am curious about the unique situation 
that a victim finds herself in, in that where do you go? Do you 
go to a civilian hospital? Do you go to the medical facility on 
base? Do you go to a local police department? Do you go to a 
military police department? Do you go to the SARC?
    In your experience in working with these victims, what is 
impacting their decision about where they go? Because that 
initial contact, in my experience, is more determinative of 
what comes after than almost anything else. I am wanting to 
know what your sense is of that because maybe that is another 
area where we need to focus on getting more information out 
about the best place to go.
    Because as you guys know, the civilian prosecutors can file 
charges. So can the military. One can choose not to, the other 
one can. They can both file charges. They can both file 
different charges. They can wait until one to get finished, the 
other one can begin.
    No one has been able to really explain to me in a way that 
I can put down on paper how this is working in all these 
instances.
    Ms. Parrish. Victim reporting for a victim is very 
confusing, and depending on the individual circumstance, 
whether they go to the hospital, whether they go to a SARC, and 
then depending on where you go, whether it is automatically an 
unrestricted--if you go to an investigator or your command--or 
if you go to a hospital, then you have a choice, those are very 
confusing to a victim. They are not sure what to do or where to 
turn in that regard.
    We know that victims' privacy rights through that process 
are often violated early on.
    Senator McCaskill. Have you all made suggestions that we 
could maybe consider in the defense authorization bill of a 
requirement that people entering the military get some kind of 
form in writing that what their choices are and what the pros 
and cons are of those so that you know?
    I mean, my experience is the civilian system, and the vast 
majority of our victim reports came through the emergency rooms 
and/or 911 and/or someone showing up at the police department. 
Those were the three primary ways that victims entered the 
system.
    There is probably about another two dozen ways that they 
can enter the system with a sexual assault in the military. 
Have you given much thought as to how we could empower the 
victim earlier so that they are making the right choices, so 
that they get the help at the initial stage?
    Ms. Bhagwati. We have referred clients to the Air Force's 
special victims' counsel program. It has been, I think, a 
remarkably positive development. Certainly Senator Ayotte's and 
Senator Murray's bill would bring that program to the rest of 
the Service branches. I don't think there has been anything 
quite as effective as that on the table.
    Senator McCaskill. Okay. That is great. Tell me about the 
healthcare piece of this. Are all of these victims being 
offered emergency contraception when they are going to medical 
facilities, either on base or off base if they are reporting a 
rape?
    Ms. Parrish. Not in our experience, Senator. When they go 
to these different health facilities, depending on the 
situation, it is often a time when the form of prejudice 
against the victim, that retaliation begins to take place in 
subtle ways.
    Quickly a victim who reports finds themselves being 
evaluated, be given a psych evaluation, and before you know it, 
the attention is turned on his or her stability, mental 
ability, mental health situation. All of a sudden, it becomes 
this, are they--a personality disorder, is it bipolar disorder?
    We have hired lawyers and sent them in to bases to fight 
these errant medical diagnoses. The process of victim reporting 
is all part of the--and then into the investigation.
    Senator McCaskill. So you are saying, Ms. Parrish, that in 
the medical facilities on bases they do not have a rape 
protocol?
    Ms. Parrish. If they do, the victims that we have talked 
with don't know it.
    Senator McCaskill. Would you agree with that, Ms. Bhagwati, 
that there is not a rape protocol in the medical facilities on 
military bases in this country and abroad?
    Ms. Bhagwati. There is a rape protocol, but in terms of the 
access to emergency contraception or now it is federally funded 
abortions, there is some disparity there. We are not sure that 
this is happening in every facility.
    Senator McCaskill. Well, obviously, if we are talking about 
a medical facility at the time of report, in most instances, we 
are just talking about the morning after pill.
    Ms. Bhagwati. Right.
    Senator McCaskill. We are talking about emergency 
contraception because you have been raped.
    Ms. Bhagwati. I couldn't say.
    Senator McCaskill. Okay. I think that is something we need 
to look into further and find out about that.
    The last question I have is for the lawyers. Just briefly, 
because I am out of time, in your experience--because I have 
talked to a lot of prosecutors about this--who is making the 
call? Is it a deferral to the civilian prosecutors first, and 
if they refuse to file, then a consideration of court-martial 
in the military? Or is there a give-and-take?
    I mean, is it ``I will take this one, and you take the next 
one?'' I mean, in your experience, how did that work in terms 
of that dual jurisdiction, which is unique in this sense. 
People don't realize the Federal Government doesn't have 
jurisdiction over rape in 99.9 percent of the cases. This is 
really the only place I am aware of that you have this dual 
jurisdiction that exists from the get-go.
    General Altenburg. We had it in Germany also. But in my 
experience in the United States, it is a question of equities 
and comity, the same way it is between a U.S. attorney in 
Raleigh, an assistant U.S. attorney, and a State attorney in a 
bank robbery. If it is above a certain amount, maybe the Feds 
say they will take it.
    When a crime is committed off post near a military base, 
usually the Staff Judge Advocate has a working relationship 
with the assistant district attorney or the district attorney. 
If they feel the equities are on their side because the victims 
were mostly civilian residents, then they take it.
    But there is a discussion, and there is a give-and-take 
and, in my experience, handled very professionally. Usually, 
there is kind of a consensus, well, this one, this soldier, you 
are a soldier, but he killed four of your citizens in an 
Italian restaurant, 3 miles from post. I deferred to the 
prosecutor.
    I say I was ready to take it. We wanted to take it. We 
wanted to prosecute it. But I certainly understood why he 
wanted to prosecute it, and I deferred to him.
    Senator McCaskill. So it is a case-by-case basis?
    General Altenburg. Yes, ma'am.
    Senator McCaskill. Colonel Morris?
    Colonel Morris. Senator McCaskill, not so different in my 
experience, except that in--oh, sorry. Similar experience. 
Almost all of my experience was civilians being willing to have 
us take the case. Some of it was a resource decision, but in 
general when they had a confidence in our ability to bring a 
case to an effective conclusion.
    In Germany, in Oklahoma, and then later in my career, when 
I was the SJA in northern New York, we visited all the local 
district attorneys, and there were a couple who had thought 
they were dissatisfied with outcomes in the military justice 
system. We were able to assure them of our approach and in all 
cases obtained kind of clearance to prosecute. Really, 
technically, a clearance is not required. It is in some ways a 
race to the courthouse.
    But a willingness to have us do so, and it wasn't--it was 
motivated mainly out of good order and discipline, but also out 
of a sense of commitment to those neighboring communities and 
part of our fidelity to them and our accountability to them, 
even though the primary concern is the soldier's accountability 
in our system.
    Senator McCaskill. Thank you.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator McCaskill.
    Senator Shaheen.
    Senator Shaheen. Thank you, Mr. Chairman.
    Thank you all very much for being here this afternoon. I do 
think it is very important for us to hear from experts who have 
worked both within the military and outside about what has 
worked to address sexual assault and rape.
    I wonder, Ms. Bhagwati, one of the things, one of the 
pieces of legislation that Senator Fischer and I have 
introduced is legislation that would make the highest-level 
sexual assault prevention and response positions nominative 
ones. The change would, I think, help facilitate getting people 
with more experience and more committed to upholding the values 
of the position. It would also, I think, better hold the 
commanding officers responsible for those appointments.
    I wonder if you could speak to whether you think that would 
be helpful?
    Ms. Bhagwati. I do think it would be helpful.
    Senator Shaheen. Is there anything in particular that you 
would advise us as we are thinking about that or that you would 
advise the military to do?
    Ms. Bhagwati. We have talked a lot today or I have heard a 
lot today about the qualifications of an officer with moral 
leadership. I think with over a decade of deployments right 
now, we need to think outside the box a little bit on who is 
the right person for a sexual assault, sexual harassment 
leadership position.
    Someone with kind of--someone who has proven himself or 
herself on the battlefield may not be the best person. Maybe he 
or she would be, but there need to be sort of tests for that 
kind of moral courage in terms of sticking up for someone who 
maybe the rest of the unit wouldn't have stuck up for.
    We see that routinely. I am not sure how to measure that. I 
just know that we don't see it very often.
    Senator Shaheen. Thank you.
    Ms. Parrish, I think you may have mentioned a case that we 
have heard about in our office of an Air Force lieutenant who 
has contacted us who alleged that he was sexually assaulted and 
that his case has been ignored by base investigators. I won't 
get into the details of the case, but one of the issues is that 
he says that he has been denied an expedited transfer out of 
the base.
    I wonder if you would comment on whether that should be one 
of the usual responses or appropriate responses to somebody who 
is in this situation, that they be removed from the situation 
and where they were victimized?
    Ms. Parrish. Well, and I would just say, yes, Senator 
Shaheen. The special victims' counsel, John Bellflower, in 
fact, and I commend--I have attached it to my testimony--had an 
extensive report on the case that you are speaking of. In this 
case, he was denied expedited transfer.
    We find while it is a good thing at times, expedited 
transfer requests, some victims say, yes, I was offered an 
expedited transfer, but to a job less than what I have now. Why 
am I being punished for being protected and trying to be sent 
off base? I am now being asked to make sandwiches for the 
pilots when once I was on another track in a successful career. 
Why do I have to leave? Why can't he leave?
    I think that is an issue. But also a lot of times victims 
are told, you don't qualify for expedited transfer. There is 
this informal conversation going on that those who count the 
numbers are unaware of, where victims are often just even 
denied that opportunity.
    It is very, very difficult. That is why it is more than--
you can fix pieces of this, but until you remove the bias and 
conflict of interest out of the legal process, you are not 
going to solve this problem.
    You can tweak it around the edges. Requiring that special 
victims can represent a victim to protect their privacy rights 
rather than just give them advice, that they can file motions 
on behalf of the victim. If there is not a remedy, there is not 
a right.
    Those are huge problems, and they need to be addressed, but 
you have to remove the bias out of the system.
    Senator Shaheen. Let me ask another question for anybody 
who would like to respond to it. Admiral Papp this morning 
talked about the responsibility that he thought each member of 
the Coast Guard should have when it came to anything that they 
saw relative to sexual assault or harassment and reporting 
that. In the State of New Hampshire when I was Governor, we had 
a personnel policy that applied to all State employees that 
said anyone who knew or heard of a report of sexual harassment 
or sexual assault was required to report that to the personnel 
officer.
    I wonder if you think that that kind of a policy within the 
military, recognizing you would have to designate who the 
appropriate person to report to, and given the chain of command 
issues, that clearly would need to be looked at. Would it be 
helpful asking everybody to assume responsibility for this 
issue to say that if you hear about a case, you have a 
requirement to report?
    Ms. Bhagwati. I think you would have to consider that very 
carefully. I think that victim's agency needs to be considered 
carefully and that in many cases a victim would probably prefer 
not to have that happen, for reasons of confidentiality, 
safety, retaliation.
    I mean, these are very real fears. They are well-justified 
fears. I would look into that a little more, see what the 
community thinks about that.
    Senator Shaheen. Okay. Anybody else want to comment on 
that? [No response.]
    All right. Thank you all very much.
    Chairman Levin. Thank you, Senator Shaheen.
    Senator Gillibrand.
    Senator Gillibrand. Thank you, Mr. Chairman.
    Thank you, each of you, for your testimony.
    Ms. Bhagwati, we have heard a lot of testimony today. The 
previous panel, for example, talked a lot about good order and 
discipline, and they believed that maintaining the 
decisionmaking, the disposition authority over these cases had 
to stay within the chain of command for them to be able to 
instill good order and discipline.
    They didn't seem to take into account different proposals 
that would have elevated the decisionmaking for the disposition 
authority well beyond their level and their tier of seniority. 
Please explain to me your opinion on what removing Article 30 
and Article 22 would have on good order and discipline, and how 
do you believe good order and discipline would be maintained 
without those two decisionmaking authorities?
    Ms. Bhagwati. I believe giving trained prosecutors the 
authority to convene court-martials to determine judges and 
juries and also backend authority would remove--would remove 
bias from the system, would also free up commander time to do 
other extremely important duties, namely operational ones.
    I mean, your legislation specifically authorizes commanders 
to still have authority over a great deal of judicial matters, 
not just nonjudicial, but also lesser crimes. I mean, it is a 
very sensible approach. It is something that I think the 
military could easily implement.
    Certainly victims, again, would be much more, much more 
trusting of the system, much more willing to step forward.
    Senator Gillibrand. You were a commander yourself. Can you 
explain to me specifically, everyone who testified in the last 
panel and everyone who testified on the first panel said it is 
impossible. If I don't get to decide whether to go to trial or 
not, it is impossible for people to respect me that I am going 
to take sexual assault seriously.
    What could those commanders do to be taken seriously on 
sexual assaults and rape in the military if they don't make 
that one decision?
    Ms. Bhagwati. I really think this is a multipronged 
approach. This is not really only about military justice 
reform. We need more women in the military. In order to create 
a culture that is welcoming of all people, women have to be a 
part of that culture. Men will also benefit when women are part 
of this culture and are truly accepted.
    So, my first instinct is to say commanders don't have all 
the tools, yes, that is true. But you will never have a perfect 
criminal justice system either. You need additional things 
within that system. You need access to civil remedies to open 
the possibility, to acknowledge that there is widespread 
retaliation.
    Senator Gillibrand. Ms. Parrish, can you talk a little bit 
about--you also are of the view that you have to take the 
decisionmaking on whether to proceed to a trial outside the 
chain of command. Why do you believe that, and why do you think 
it will result in better good order and discipline?
    Ms. Parrish. Well, it is required to change the culture. 
You won't change the culture until you have accountability, and 
you won't have accountability until you have transparency. So, 
good order and discipline will not--is lacking now within our 
unit, within these units.
    I would like to just take a moment and read a comment from 
a victim who had tried to report four separate times, was in 
the middle of a combat zone, said, ``He, the rapist, comes to 
my truck as I am getting it ready for another mission. I shut 
down inside. I was lead driver in our convey, and I kept hoping 
to hit an improvised explosive device (IED) after that.''
    Unit cohesion, good order and discipline? This young 
soldier tried four times to report, and what was her thinking 
at that moment when she was getting ready to get in her truck 
to lead the convoy? How can I--``I hope I hit an IED.''
    What will that do for mission readiness and unit cohesion? 
It is undermined every day by disbelieving the victim. You must 
remove the bias and conflict of interest. We have seen it for 
20 years. It is not going to change until you fundamentally 
reform the system, until you have professional prosecutors 
looking at these cases.
    Senator Gillibrand. For other cases that you have heard 
from victims, can you please describe to us what they tell you, 
why there is so little reporting? If there are only 3,000 cases 
reported a year and then only 1 in 10 go to trial, there is 
just a huge falloff in the amount that are reported. What are 
they telling you about the chain of command that is creating an 
impediment?
    Ms. Parrish. They don't report because they are 
disbelieved. They don't report because the often higher-ranking 
perpetrator is buddies with those that they must report to. 
They don't report because they are told when they are given 
their options to report that, oh, by the way, you were 
drinking. You are under age. You will be charged with 
collateral misconduct.
    You don't report because the thought that you have heard 
from your friend who tried to report that--and you see what 
happens to them, and they are being drummed out and diagnosed 
with a personality disorder. These things are not going to 
change at any tweaks to the system, even common sense tweaks 
that are good. It is still not going to fundamentally address 
this issue.
    Senator Gillibrand. Thank you.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you so much.
    Next is Senator Blumenthal.
    Senator Blumenthal. Thank you, Mr. Chairman. Again, thank 
you for holding this hearing.
    Thank you to the entire panel for being here today.
    Just as a parenthetical, beginning with Ms. Parrish, you 
say that the soldier tried to report four times. Could you 
clarify what you mean by ``tried to report''?
    Ms. Parrish. Sure. What I mean by that is they first went 
to their leader, their immediate supervisor, their superior, 
and were told that not to speak ill of that higher-ranking 
individual. Then they tried again to report to a platoon leader 
and was told that they would be charged with adultery if they 
wanted to move forward with an official report.
    Senator Blumenthal. She would be charged with adultery?
    Ms. Parrish. Adultery. That is right.
    Senator Blumenthal. How often, I think this point is 
critical, are victims or survivors, in effect, threatened with 
prosecution themselves?
    Ms. Parrish. Well, we don't know the numbers, but I can 
tell you we hear it all the time.
    Senator Blumenthal. Would you say it is a predominant 
reason that discourages victims from reporting, or is it just 
incidental and occasional?
    Ms. Parrish. I would say it is significant.
    Senator Blumenthal. If you had to rank it, from your 
experience, compared with other reasons, what would be the top 
three or top five would you say?
    Ms. Parrish. Well, I think retaliation at all levels would 
be number one.
    Senator Blumenthal. That would be a form of retaliation.
    Ms. Parrish. Well, yes, you are right.
    Senator Blumenthal. You will be charged with drinking. You 
will be charged with adultery. You will be charged with conduct 
unbecoming.
    Ms. Parrish. Right. Well, being disbelieved and knowing 
that the odds are, based on what you see, that you won't be--
that you will not be believed. Then also just the way in 
which--for women, the way in which they are harassed and 
treated generally and that there is no, all the way up the 
chain, the jokes, the walking into a mess hall and finding 
yourself what is described as a catwalk, where your gender and 
your looks are debased. Superiors at all levels who are in that 
mess hall treat--that is accepted.
    There are--until you--until you affect that type of 
harassment and retaliation, it is just not going to get fixed.
    Senator Blumenthal. But let me just, for the purposes of 
our conversation here, repeat to you what a number of witnesses 
have said earlier. Specifically, for example, General Odierno 
made the point that separating the prosecution authority from 
the chain of command, from the commanding authority, won't 
necessarily prevent that kind of shame, embarrassment, 
disapproval alone. It has to be part of broader changes.
    As I understand your argument, it is one, the change 
potentially in the prosecuting authority is one step in the 
right direction, but it won't deal with that phenomenon, will 
it?
    Ms. Parrish. Well, you have to--you have to hold leaders 
accountable----
    Senator Blumenthal. Right.
    Ms. Parrish.--for their actions, as in the case of General 
Franklin, who has not been held accountable for his actions. 
Until you hold, until victims see higher-ups being held 
accountable, that is part of changing the culture. You must 
change the culture, and you have to make commanders more 
accountable for having command climates that ignore sexual 
harassment and assault.
    Senator Blumenthal. Let me ask, Ms. Bhagwati, in terms of 
victims' bill of rights, is this something that should be in 
the UCMJ? A number of witnesses this morning said we don't 
really see the need for it because it is already there in the 
rules.
    Ms. Bhagwati. Are you referring to the issue of collateral 
misconduct or----
    Senator Blumenthal. I am sorry. I mean, for example, rights 
of victims to be heard in the course of a courts-martial, if 
they wish to be. In punishment or protection against 
interrogation, victims' rights in terms of what needs to be 
protected in the process.
    Ms. Bhagwati. I would have to think about that a little 
bit. I mean, the criminal justice system, as I understand it, 
is really designed to provide a fair and impartial trial to the 
accused. So, a victim is more likely to find his or her day in 
court in a civil system, a civil court system.
    Senator Blumenthal. How often does that happen?
    Ms. Bhagwati. Well, it doesn't happen at all because 
servicemembers don't have access to civil suits.
    Senator Blumenthal. What about restitution or compensation 
for the victim?
    Ms. Bhagwati. I think it is a very good idea.
    Senator Blumenthal. Do you have any thoughts about what 
process should result in restitution? In other words, whether 
it ought to be a separate proceeding or part of the criminal 
proceeding?
    Ms. Bhagwati. I would have to look into it, but it is a 
good start.
    Senator Blumenthal. Thank you.
    My time has expired. I want to thank all of the experts who 
are here today for your great work and for being here.
    Thank you, Mr. Chairman.
    Chairman Levin. Thank you, Senator Blumenthal.
    Senator Kaine.
    Senator Kaine. Thank you, Mr. Chairman.
    To the witnesses, thanks for your patience through a long 
day.
    I also appreciated the opportunity to hear Ms. Bhagwati 
testify earlier at the hearing that Senator Gillibrand called 
in the Personnel Subcommittee and also another witness from 
your organization, Ms. Parrish. Thank you for helping us work 
this through.
    I spent a lot of time in courts as an attorney, but never 
in military court. So I am still trying to come up to speed on 
the different procedures, and a comment through earlier panels 
that I wanted to just follow up on a little bit was restricted 
versus unrestricted complaints or reports.
    Is there sort of a common standard and is it commonly known 
among the military that in instances of sexual assault, you can 
file a restricted report?
    Ms. Bhagwati. I believe in this last annual report from the 
DOD, well over 90 percent of servicemembers said that they were 
told, that they had been educated about the difference between 
restricted and unrestricted reporting. I don't think that is a 
challenge anymore.
    Senator Kaine. Do other witnesses feel the same, that 
whether you are serving on a base in Germany or you are going 
through boot camp at Pendleton, folks are aware that in an 
instance like this you can file a restricted report and have 
some confidentiality that would connect with the report? Is 
that now standard, and is it known?
    Ms. Parrish. I think it is known, Senator Kaine. But I 
think the problem, as we see so few reports, whether restricted 
or unrestricted. The problem is even if they report restricted 
that the word gets out.
    So the reason for creating restricted reporting was so that 
privacy could be maintained. But that is rarely the instance. 
Very quickly word is out that you have reported, and then the 
retaliation begins, often.
    Senator Kaine. Were you going to say something, Colonel 
Morris?
    Colonel Morris. Just, Senator, I think a restricted report 
is a vote of partial confidence in the system by a victim who 
is hedging her bets because she doesn't have enough trust in 
the system. So I think, as you analyze those statistics, you 
want to figure out what the context means. It means you have 
problems there, but it also means that is a population whose 
trust we have not gained.
    It is a frustrating statistic to a prosecutor because that 
is conduct that you would love to be able to address and bring 
full accountability for that you cannot, because that victim is 
signifying her lack of trust.
    Senator Kaine. It could be a lack of trust or lack of 
information. I am not sure what the procedure is like. Before I 
decide how far I want to go, I would like to get more 
information. Would you agree that might be----
    Colonel Morris. It sure serves its purpose by inviting that 
person who has that reticence, for whatever reason, at least to 
begin to come into the process.
    Senator Kaine. How recent is the phenomenon of allowing and 
having it broadly understood that you can file on a restricted 
basis?
    Colonel Morris. It is recent, but I can't pick the year. So 
several years.
    Senator Kaine. Do you know, last 10 years or last 20 years, 
Ms. Bhagwati?
    General Altenburg. Last 3 years. I think the last 3 years, 
Senator, I would say.
    Senator Kaine. Last 3 years. Is restricted reporting 
limited to reporting with respect to crimes of sexual assault 
or unwanted sexual conduct, or is restricted reporting allowed 
for other kinds of violations of military discipline?
    General Altenburg. Senator Kaine, it is my understanding--I 
have been out of the Army for 10 years. But it is my 
understanding that victim advocates recommended strongly that 
we allow restricted reporting because when there was not 
restricted reporting and a victim wanted to report, it had to 
go to the CID. The chain of command was going to find out. You 
were all in.
    There were some victims who at least wanted treatment, 
somebody to talk to about it, sometimes medical treatment, and 
whatever else she may or he may need. It was recommended, and 
the DOD picked up and said, all right, we are going to allow 
restricted reporting. The victim makes the call.
    Senator Kaine. Ms. Bhagwati, you testified a little bit 
earlier and there has been a lot of testimony today about the 
special victims' counsel pilot within the Air Force. I think, 
if I remember the testimony earlier correctly, that one of the 
things they are seeing is the number of people who come in with 
restricted reports, but then as they work with their advocate 
and come to understand the system that they then change their 
restricted report into an unrestricted report. Are you hearing 
the same thing in your work?
    Ms. Bhagwati. That is right, and I believe General Harding 
instituted this program in part because victims who had filed 
unrestricted reports were feeling intimidated through the trial 
process and were backing out of those cases. This was in part a 
reaction to that and to encourage victims to stay in the 
process.
    Once you have that buffer, there is very little that can, I 
think, give especially a junior enlisted servicemember that 
kind of authority and buffer like an attorney, his or her own 
designated counsel. Because a victim in a criminal case is 
merely a witness. It is not her or his trial, right?
    Senator Kaine. Right.
    Ms. Bhagwati. Having that counsel is a huge asset.
    Senator Kaine. In the first panel there was a question, do 
you have the tools that you need to deal with this problem? 
They all said we think we have the tools we need.
    General Welsh from the Air Force, I think, said with 
respect to the special victims' counsel that it is a pilot 
program and that it is narrow and additional resources, both 
dollars, and having the number of trained people to handle 
this, to think about doing it either Air Force-wide or DOD-
wide, that that definitely would require some additional, and 
thoughtful granting of resources to the DOD.
    Ms. Parrish. Well, that is why I think, Senator, you should 
require a military justice expertise track, and the Navy has 
one. I think it is very important in that regard.
    Right now, we don't properly value military justice 
expertise, and it is a huge problem. In terms of the special 
victims' counsel program, we must provide victims with absolute 
legal representation rights, not just advice. I worry about 
some of the legislation that is currently proposed. It is that 
you will study representation and that providing advice is what 
will be required. That concerns us greatly.
    We filed an amicus brief in a case right before the highest 
U.S. Court of Appeals for the Armed Forces right now on the 
special victims' counsel program, whether or not that victim 
was entitled to legal representation to protect her privacy 
rights, from disclosing her prior sexual history or medical 
health records. That is regularly violated throughout this 
process, and unless you have a special victims' counsel that is 
required to represent the victim, to file motions on behalf of 
the victim, not just to provide advice. Providing advice won't 
protect a victim in a court procedure.
    You have to have the requirement that they have 
representation. Advice is meaningless when the defense counsel 
is filing motions left and right, and you have no one there to 
do it on your behalf.
    Senator Kaine. Colonel Morris?
    Colonel Morris. Senator Kaine, I think it will be useful 
for all the Services to analyze the results that come from the 
Air Force, but there is more than one model for it, and the 
model--a model that the Army has developed over time includes 
victim witness liaisons at least 20 years running, special 
victim prosecutors, which was a significant cultural change and 
probably only seemed so in sort of the inside baseball of the 
Army.
    But the military counsel have almost always, for as long as 
anybody can remember, been organic to the unit, to the 
installation. For 4 years running now, the Army has had these 
special victim prosecutors, now 22, 23, or so, who are 
regionally around the world and come in to infuse their 
expertise on cases.
    That has required some adjustment away from the model of 
the local prosecutor owns the case, addressing in part Ms. 
Parrish's concern about a sort of a career track of Judge 
Advocates. The best special victim counsel is the prosecutor.
    The prosecutor should have such a comprehensive investment 
in the case that that includes a developed from the first 
minute relationship of trust with that victim. Because if he 
does not have that, that victim is unwilling to bear the risks 
from civilian life only intensified in the military, the risk 
and hassle of even in the best case working their way through 
the complicated process for a trial like that.
    But it is reinforcing the authority and obligation on a 
trial counsel, the prosecutor, parallel to that of a commander 
that doesn't give any wiggle room, doesn't give any chance to 
dilute the level of accountability for bringing that case to a 
conclusion.
    Chairman Levin. Thank you very much, Senator Kaine.
    Senator King?
    Senator King. First, thanks to the panel. I hope it goes 
without saying that this committee is deeply interested in the 
solution to this problem. In my short experience here, I have 
never seen a committee spend as much time focused on a single 
issue as this committee has on this issue.
    There is going to be consensus, I believe, in the committee 
on a number of the options and alternatives that have been put 
forward in various bills. The one that I think where there is 
still some differences and discussions is Senator Gillibrand's 
bill that would essentially take the prosecutorial decision out 
of the chain of command.
    That is where I want to focus my question because I am 
struggling to decide myself about where to come down on that. 
The first question I have is what is the data on commanders 
failing to prosecute?
    In other words, is there data that indicates that in a 
significant number of cases, a commander at whatever level, and 
it is at the O-6 level in these cases, has decided not to 
prosecute? Do we have any information on that, do you know, Ms. 
Parrish?
    Ms. Parrish. I don't. We only know the statistics that the 
DOD has put out, and few cases move to prosecution.
    Senator King. I am sorry?
    Ms. Parrish. According to the numbers, DOD has recently put 
out, few--there are few cases that move to prosecution and then 
conviction. Preferring charges, prosecutors tell us that, 
contrary to what we have heard in Senator Gillibrand's 
subcommittee, that often cases are not preferred.
    There is just no--there is no way of right now being able 
to determine a convening authority's, how effective they are in 
their process, I think. I don't know how you ever dig down deep 
enough to come up with that data. I think you just have to look 
at the results, and the result is victims don't report. There 
are few prosecutions. There are fewer convictions.
    Senator King. I understand that, but one of the issues is 
reporting, which you just mentioned. What evidence is there 
that the failure to report is a result of the victim's 
perception that the commander isn't going to prosecute the 
case?
    Do you see what I mean? Obviously, there are a lot of 
complicated reasons to not report. Is that one of them, and how 
do you know?
    Ms. Parrish. It certainly is one of them. Well, because 
they see. Their own experience is what is before them, and they 
see that often times the perpetrator is not brought up on 
charges, that victims report and are disbelieved. That higher-
ranking perpetrators are more believed.
    That is part of the chain of command. That is part of the 
higher ranking you are, the more on your lapel, the more you 
are believed, the more credibility you have. Until you create 
some objectivity in the process where there is no bias and 
influence and prejudice against the victim, the lower-ranking 
individual in the situation, you are not going to solve this 
problem.
    Senator King. One of the things you have talked about, all 
of you have talked about is accountability. By removing this 
decision from the chain of command, aren't you relieving that 
commander of the accountability?
    Ms. Parrish. Absolutely not. Because he will still have the 
responsibility for his command, for the climate and culture in 
his command. He will be required to create a climate that has 
no tolerance for sexual harassment. It goes hand-in-hand. It is 
not either/or.
    Senator King. Final question along these lines, two other 
questions. Retaliation has kept coming up and has come up a 
number of times in this hearing.
    What would you think of the idea of making retaliation 
itself a punishable offense? Retaliation for reporting of a 
sexual assault is punishable by 10 days in the brig, or 
whatever. Do you have any thoughts on that?
    Ms. Parrish. Well, retaliation happens in several forms, 
and it is not always so obvious. But I am for it, personally.
    But just to make my point, we see reports where there are 
subtle changes into the way in which the process moves forward. 
During the investigatory process, for example, Article 32 
hearings are often a black hole upon which a victim's--their 
testimony is twisted to the point upon which they decide not to 
move forward in a case.
    There are so many ways in which retaliation is hard to 
prove other than the fact that the victim is on her way out 
once reporting, even restricted or unrestricted.
    Senator King. Other thoughts on this idea of retaliation 
being an offense? Colonel?
    Colonel Morris. There are enough specifications in the UCMJ 
to address it now. There is a particular punitive article that 
is unique to the UCMJ, essentially for corrupting the judicial 
process. That is one, if not cruelty and maltreatment, if not 
harassment, if not hazing.
    It is more a matter of a commander paying attention to and 
squashing that conduct with the tools that are available to 
him, as opposed to needing a particular new offense. I think it 
is well covered now.
    May I answer a couple other concerns?
    Senator King. Yes.
    Colonel Morris. Just the issue of the statistics, failure 
to prosecute and all that, I mean, it would be important to 
seek a serious audit. Maybe take several installations from 
different Services to look at reports and look at what they 
have yielded.
    The only numbers I know of any significance are the Army's 
of the last year or so. We had about 1,268 formal reports that 
worked its way through several other disposition options, and 
about 200 some of them were general courts-martial. So about a 
third of the general courts-martial for that year were rapes or 
serious sexual assaults, remembering again with 700 or so 
courts-martial, you have 40,000 incidents of nonjudicial 
punishment.
    The last point was on relieving the commanders of 
accountability. That is the crux of what the committee is 
struggling with, I understand. To then say but the commander is 
still responsible for the climate, that now less powerful, less 
effective commander from whom the system can less effectively 
insist on accountability because now the ability to enforce all 
that climate that he is trying to set would have been taken 
away from him.
    Senator King. Thank you.
    Mr. Chairman, may I follow with one question? Thank you.
    Ms. Bhagwati, one of the things we were discussing earlier 
in the other panels was a kind of middle ground, where the 
command decision remained in the chain of command, but it had 
to be concurred in by the JAG officer, and if it wasn't, it 
would automatically be bumped up a level. Do you have any 
thoughts about that as a kind of compromise between taking it 
out of the chain of command and leaving it as is?
    Ms. Bhagwati. Bumped up to the O-7 level?
    Senator King. Yes.
    Ms. Bhagwati. The problem there is you have fewer O-7s than 
O-6s, but also I don't think there is that much difference in 
the mind of a victim or even the accused, for that matter, 
between an O-6 and an O-7. You still have the same chain of 
command. You still have the same bias in the system.
    Frankly, I think in terms of running a program like that, 
again, there are only so many generals within the military. 
That is certainly a proposal we considered about 3 or 4 years 
ago, and it didn't fly.
    Senator King. I take it that your opinion is similar to Ms. 
Parrish that the structural solution is to take this decision 
out of the chain of command, and you feel that will make a 
substantive difference in the amount of reporting and, 
presumably, the amount of prosecuting?
    Ms. Bhagwati. Yes, but I would still, I think, remind the 
committee that Senator Gillibrand's bill doesn't completely 
remove judicial authority from commanders. It removes the 
authority in some cases to include sex crimes that would 
require more than 1 year of confinement.
    Senator King. Felony-level cases?
    Ms. Bhagwati. Right. Commanders would still have the 
authority over many other crimes, as well as nonjudicial 
punishment.
    Senator King. Thank you.
    I want to thank you, Mr. Chairman, for holding these 
hearings. This has been important and been a very illuminating 
day. I appreciate it.
    Chairman Levin. Thank you. Thank you all.
    Let me first thank this panel before I close. Ms. Parrish, 
Ms. Bhagwati, General Altenburg, Colonel Morris, you have made 
a major contribution to this committee. Those of you who 
represent organizations, we thank your organizations that you 
represent.
    This committee has no greater responsibility than to 
protect the men and women who wear the uniform of this country. 
We are going to carry out that responsibility in the next few 
weeks. I can't tell you precisely how we will end up doing that 
as a committee, but I can only tell you that we will act as a 
committee in our bill.
    I have no doubt that we will take significant actions. I 
can't tell you precisely which. That will be decided by the 
committee after a markup in the subcommittee and then a markup 
in the full committee. I have no doubt that, in fact, we will 
take actions in this area.
    We have received three statements with a request that they 
be made part of the record, and they will be made part of the 
record.
    [The information referred to follows:]
      Prepared Statement by Commander John B. Wells, USN, Retired
    oversight: pending legislation regarding sexual assaults in the 
                                military
    By way of introduction I am a retired Navy Commander who served 22 
years of active duty as a surface warfare officer. My career included 
10 years at sea, the last 2 as the Executive Officer (second in 
command) of a mixed gender ship. That crew consisted of approximately 
900 men and 300 women and we deployed to the North Atlantic, the Indian 
Ocean, and the Persian Gulf. As I also spent 6 years in command ashore, 
I was a Special Court-Martial convening authority and administrative 
separation board convening authority. I also served on courts-martial.
    I completed law school via a night program while still on active 
duty. I began to practice military law upon my retirement in 1994. I 
have defended personnel of all Services before courts-martial, 
administrative separation boards and in Federal court proceedings. I 
also seek veterans benefits for former military members.
    Military-Veterans Advocacy, Inc. is a Louisiana non-profit 
corporation formed late last year to defend military personnel and 
advocate both legislatively and judicially for veterans. As its unpaid 
Executive Director I have advocated for veterans legislation in both 
the House and Senate. A 501(c)(3) designation has been requested and is 
pending. Prior to assuming this position reserved as the unpaid 
Director of Legal and Legislative Affairs for the Blue Water Navy 
Vietnam Veterans Association.
    I have reviewed the pending sexual assault legislation, especially 
Senator Gillibrand's bill, S. 697, with some trepidation. The 
legislation seems to me to be a well meaning attempt to solve a 
terrible problem with the wrong solution. The central core of all 
pending legislation is to remove or limit the convening authority's 
power under Article 60 to set aside a conviction or grant clemency. I 
believe that this approach is misguided and will result in severe and 
unintended consequences.
    S. 697 strips the convening authority of his referral and clemency 
powers for Articles 80-82, 92, 118-132, and 134 of the Uniform Code of 
Military Justice. It requires an 0-6 JAG with ``significant'' court-
martial experience to act as a special prosecutor with authority to 
review and refer charges. ``Significant'' is not defined. There are 
frankly not enough JAG 0-6s to perform this mission, which is somewhat 
duplicative of the role of the Article 32 Investigating Officer.
    Article 92 criminalizes the failure to obey an order and/or 
dereliction of duty. This is a purely military offense and referral/
clemency powers should not be taken away from the convening authority. 
While this might be intended to encompass orders concerning 
fraternization/sexual harassment, it also includes thousands of other 
orders violations. Accordingly, a person charged for failure to perform 
a quarterly stamp inventory would come under the enhanced review by the 
O-6 Special Prosecutor. Dereliction of duty violations such as failure 
to properly annotate a log would also come within the purview of this 
enhanced review. Not exempting this Article form S-697 would make its 
enforcement simply impossible.
    The same holds true for Article 134. This article includes indecent 
assault, but also covers 52 enumerated offenses from ``abusing public 
animal'' to ``wearing unauthorized insignia decoration, badge, ribbon, 
device or lapel button.'' The charge also allows for the creation of 
novel specifications. An example of a recent specification brought 
under Article 134 was lying to one's landlord. Any Federal or State 
crime brought under the Assimilated Crimes Act is also charged under 
Article 134. Obviously enforcement of the enhanced review/referral 
requirement concerning Article 134 would be unmanageable.
    Under S. 697, the convening authority will be denied authority to 
grant clemency in cases of minor crimes. For example, should a female 
officer be in the situation of discovering her husband's infidelity and 
in a bout of depression and recrimination engage in a one night stand, 
the convening authority would be denied, irrespective of her fine 
service and upstanding character, the ability to set aside a 
conviction. Additionally, a person who engaged in homosexual conduct, 
finding himself convicted of At. 125, could not seek clemency if S. 697 
is enacted. There are many other examples. I have only had one case 
where the conviction was set aside. The case involved a reservist 
recalled to active duty subsequent to September 11, who was convicted 
of travel fraud. Based on evidence not admissible at trial, the 
convening authority determined that the accused's action was based on 
misunderstanding of very confusing regulations. He properly set aside 
the conviction.
    The commander plays an important role in ensuring the integrity of 
the military justice system. Senator Gillibrand recently asked why the 
Article 60 authority promotes good order and discipline. The short 
answer is that it acts as a safety valve. Though seldom used, it 
enhances faith and confidence in a system often criticized as arbitrary 
and unfair. After a conviction, the commander must review and consider 
the record of trial and the advice of his lawyer, known as the staff 
judge advocate. He may consider evidence not admitted at trial and 
clemency requests. He must be convinced beyond a reasonable doubt that 
the accused is guilty. Setting aside a conviction is very rare and is 
never done frivolously. But it is an important review designed to 
balance inequities between the military and civilian justice system.
    There is a significant difference between a military and civilian 
trial. Most people do not realize that Court-Martial panel members are 
not randomly selected but are appointed by the commander. Instead of 12 
members, there can be as few as 3 for a Special and 5 for a General 
Court-Martial. Attorneys are only allowed one peremptory challenge and 
it takes only a two-thirds vote of the panel to convict. Of course, 
these panel members are often susceptible to command influence. The 
commander's Art. 60 powers are used to off set some of these government 
friendly regulations.
    Unfortunately, the statements of the President, the Secretary of 
Defense, and various lawmakers are having a chilling effect. Commanders 
are now less likely to set aside convictions, even when warranted, for 
fear of criticism or negative effects on their own careers. Senator 
McCaskill recently put a hold on the nomination of a female commander 
who had also set aside a sexual assault conviction, to be Vice 
Commander of the U.S. Space Command. I will guarantee that the actions 
and the legislation will give rise to command influence motions that if 
granted could paralyze the military justice system.
    Curtailing Art. 60 powers will not solve the sexual assault problem 
but may lead to more false reports. The commander's authority is not 
the problem. If it is abused the commander can and should be 
disciplined. The problem is that sexual assault cases often lack 
physical evidence or witnesses. These ``he said-she said'' cases should 
be completely investigated at an Article 32 investigation, the military 
equivalent of a grand jury.
    Strengthening the Article 32 investigation process is the key to 
encouraging the reporting of legitimate sexual assault cases. Only 
experienced judge advocates, who have served as both a prosecutor and 
defense counsel should be assigned as Investigating Officers. Fact 
finding will be conducted in a more informal and relaxed setting. Most 
of the rules of evidence do not apply. A victim can testify by video 
teleconferencing or telephone. Faced with a strong case against him, 
aguilty person will be more likely to plead, thus sparing the victim an 
arduous trial and cross-examination.
    The Article 32 also protects the rights of the accused. Unlike a 
grand jury, the accused or his counsel cross-examines witnesses and 
presents evidence. However, an Article 32, until recently, had no 
subpoena powers and its decision is not binding. The Army even assigns 
non lawyers to conduct the proceeding. If probable cause is not found 
that finding should be binding.
    Congress should not force victims of sexual assault into a court-
martial. At a trial, the accused has confrontation and cross-
examination rights that will only retraumatize a victim. Being forced 
to provide testimony while facing her assaulter could result in the 
victim reliving the experience.
    At the Article 32, however, the victim can testify telephonically, 
via video conferencing or behind a shield. The Military Rules of 
Evidence do not generally apply and it is a more informal and less 
threatening proceeding. Working uniforms rather than formal dress 
uniforms are normally worn. The trappings of a court room are generally 
absent. No imposing judge is present.
    The Article 32 investigation, if properly conducted, will flush out 
the facts surrounding the case. As a defense counsel, I can assure you 
that if the evidence points to guilt, I will be seeking a plea 
agreement. As a result of this type of agreement, the victim testifies 
only if he or she wished to do so. It will spare the victim the rigors 
of a trial.
    The present Article 32 structure is not sufficient, however. I 
recommend the following changes to the statute to provide the 
investigating officer the tools he or she needs to ferret out the 
facts.

         The investigating officer must be 0-4 Judge Advocate 
        qualified under Art 27(b) who has served as both a trial 
        counsel and a defense counsel.
         A verbatim transcript will be made on all 
        investigations in which referral to a court martial is 
        recommended.
         The action of the investigating officer is binding on 
        the convening authority except when a defect such as 
        jurisdiction or the failure to state an offense is identified 
        pursuant to Art. 34.
         Testimony can be provided live or by video 
        conferencing, however victims of sexual abuse and child sexual 
        abuse may also testify behind a screen or other device to 
        shield them from the accused.
         The provisions of Art. 37 (command influence) and Art. 
        46 (equal access to witnesses and evidence) shall apply to 
        Article 32 iInvestigations. The Investigating Officer may 
        exercise contempt powers under Article 48.
         All offenses punishable by confinement for more than 1 
        year shall be referred to an Art. 32 for investigation.
         The Military Rules of Evidence other than Mil. R. 
        Evid. 301, 302, 303, 305, 412, and Section V--shall not apply 
        in pretrial investigations under this section.

    While it is easy to become enraged by the estimated number of 
sexual assaults in the military, it must be remembered that the 
methodology is based upon surveys with no corroboration. Not all of 
these claimed sexual assaults really happened. As a defense counsel, I 
have tried a number of sexual assault cases. In most cases, the accused 
was proven to be innocent.
    In one case, an E-6 recruiter was convicted of raping a recruit. 
After 7 years and 1 month of confinement, he was released as a result 
of an appeal. At the rehearing we provided testimony that the 
complaining witness and bragged about using the rape claim to get out 
of the Navy, laughed about putting an innocent man in jail and tried to 
sue the military under the Federal Tort Claims Act. After this E-6 was 
acquitted of rape and indecent assault the U.S. Attorney refused to 
prosecute the complaining witness.
    On another occasion a female officer filed rape charges against her 
boyfriend after he asked to cool the relationship. The accused passed 
four polygraphs by three different polygraphers. We produced evidence 
that the complaining witness was being egged on by her new boy friend, 
an enlisted man. After she refused to take a polygraph the convening 
authority dismissed the charge.
    Another woman met her ex-boyfriend and invited him to her barracks 
for sex. After an argument she filed rape charges stating that she was 
too drunk to consent. When her cell phone records were seized there 
were numerous telephone calls and texts from her to him inviting him to 
her room for sex. The convening authority dismissed the charges. Prior 
to the receipt of the phone records, the woman used the incident to 
secure an early discharge.
    Another enlisted woman claimed that she was gang raped by three 
officers, one of whom I represented. The Article 32 Investigating 
Officer found her testimony incredible and recommended dismissal. The 
convening authority referred the charges. DNA evidence showed that my 
client's epithelial cells were found on a condom and he was convicted 
of consensual sexual misconduct. Several years later the U.S. Army 
Criminal Information Lab disclosed that the serologist had fabricated 
test results in order to show increased productivity. A re-test 
exonerated my client. The U.S. Court of Federal Claims referred the 
matter to the Service Judge Advocate General who set aside the 
conviction.
    There are other numerous cases of prosecutorial misconduct and 
command influence. Many are documented in the December 16, 2002 issue 
of U.S. News & World Report. http://www.usnews.com/usnews/news/
articles/021216/l6justice.htm. The problems with the serologists at the 
U.S. Army Criminal Information Lab are documented in a newspaper 
series. http://www.mcclatchydc.com/201l/12/29/134411/were-army-crime-
lab-problems-withheld.html#.UaaRvpso71U. An analysis of recent rape 
cases was performed by McClatchy and is shown at http://
www.mcclatchydc.com/2011/11/28/131523/militarys-newly-aggressive-
rape.html#.UaaSVZso7IU.
    What is also noteworthy is that in raw numbers the number of males 
assaulted exceeds the number of females. With the growing acceptance of 
homosexuals being forced on the military, male on male sexual assaults 
are expected to increase. The refusal of males to report sexual abuse 
is even more widespread than a fear of reporting by females. A concern 
of reprisal is less of an issue with males than shame or fear of a loss 
of manhood. This problem will only get worse.
    S. 697 and the other bills introduced into the Senate have not 
called for any kind of examination of how the repeal of ``Don't Ask 
Don't Tell'' has affected male sexual assault. The bill seems to be 
aimed only at protecting females. While a sexual assault against a 
female is wrong and has terrible consequences for the victim, the same 
holds true for a homosexual assault on a male. In protecting the women, 
we must ensure that we protect the men as well. We must also protect 
the rights of the accused. Strengthening the Article 32 investigation 
will help achieve that goal. Stripping convening authorities of their 
Art. 60 powers will not.
    If Congress decides to take this right away from the accused, in an 
attempt to civilianize the process, fairness demands that they examine 
other provisions of the laws governing courts-martial. Accordingly, I 
would recommend the following changes to Chapter 47 of Title 10:
                 proposed change to 10 u.s.c. Sec. 816
         General Courts-Martial shall be composed of 12 
        members.
         Special Courts-Martial shall be composed of six 
        members.
         In a General Courts-Martial the Trial Counsel and 
        Defense Counsel shall have 12 peremptory challenges.
         In a Special Courts-Martial, the Trial Counsel and 
        Defense Counsel shall have six peremptory challenges.
                 proposed changes to 10 u.s.c. Sec. 825
         All courts-martial members are selected random by 
        paygrade and shall be allocated so that no member is junior to 
        the accused.
                 proposed change to 10 u.s.c. Sec. 852
         Require a unanimous verdict to convict.

    Additionally, Congress should countermand MRE 707 which precludes 
polygraph evidence from being admitted to a court-martial. Polygraph 
science has come a long way and if a proper foundation can be laid 
under Daubert v. Merrill Dow Pharmaceuticals, it should be available to 
the members. Polygraphs were admissible at courts-martial until the 
enactment of MRE 707. While the Supreme Court upheld MRE 707 in United 
States v. Scheffer, 523 U.S. 303 (1998), they did not rule polygraphs 
per se inadmissible. The majority and prevailing rule in the civilian 
community is to allow for the admission of polygraphs in Federal 
courts--at least in some cases. See, United States v. Posado, 517 F.3d 
428, 434 (5th Cir. 1995) and its progeny.
    A failure to discipline those who assault women is unacceptable. In 
ensuring the guilty are disciplined, however, we cannot send innocent 
men to prison. Sexual abuse allegations must be taken seriously but 
they cannot become the subject of a witch hunt. The focus should be on 
finding the truth and not on promoting a social or political agenda.
    Thank you for considering this testimony.
                                 ______
                                 
                 Prepared Statement by Ms. Tina Clemans
    Memorial Day, a day of ``observance'', a day of reflection on all 
that our U.S. Armed Forces have done to make this country strong. A day 
in honor of U.S. countrymen and women who sacrifice their life in 
defense and service of the United States of America.
    Today is a fitting day for a mother to ask for observance, for 
change in our Armed Forces and legislation to save lives. Observance of 
an uncivil war within our own--an epidemic in corruption of power and 
unnecessary loss of life and service to an alarming number of men and 
women.
    Our daughter enlisted in the Air Force in December 2011. Like her 
father, uncle, grandfathers, and great grandfather before her, she did 
so to serve her country. Like fellow service men and women, she worked 
hard to earn this right: she completed extensive documentation; mental, 
physical, and placement exams; investigations; basic military training, 
top secret clearance, and assignment for technical training April 11, 
2012.
    Records show on April 6, 2012, our daughter went to the base 
medical clinic and was treated for insomnia due to stress about 
problems with her roommate. Records note she was worried someone was 
``out to get her'' but not suicidal, no claims of suicidal thoughts--
Records state she is ``Low Risk''.
    Our daughter's career and life nearly ended on base April 7, 2012, 
days before her tech training was to begin. The day another 
servicemember(s) gave her cigarettes laced with embalming fluid. She 
had no idea the cigarettes contained a date-rape drug that causes 
complete black outs, severe hallucinations, memory loss, and 
consciousness--and ultimately her basic rights and career.
    Terrified and alone, she called family who advised her to go 
directly to Command to report the assault and drugging. She did so. 
Instead of being admitted in a hospital where she could have received a 
rape kit, an official investigation/report, counseling, and appropriate 
care, she was taken to a mental health facility. She was not aware, or 
in any condition, to voluntarily admit herself to a facility where she 
was locked up in a suicide ward, prescribed medications for a 
personality disorder she does not have. She was denied repeated 
requests for expedited transfer per DOD directive. At the same time, 
she was given an Article 15 and Letter of Reprimand. She endured months 
of anguish, hospitalizations, humiliation, punishment and torture--
having to clean and work in the area where she was assaulted a second 
time--raped, sodomized, threatened with death for reporting further and 
forced to live in close proximity to her perpetrators. Days later she 
is punished for missing PT formations while heavily medicated and ill 
suffering PTSD, after her mother's request for the base IG to 
investigate her situation. A general had this data, too.
    Documentation, records, and exhibits we have prove these statements 
and more. Worse, due to Chain of Command having ultimate authority in 
MST investigations, the system and programs currently in place failed 
to protect our daughter. She was denied expedited and humanitarian 
transfers to safety and left for dead on base, brutally assaulted, 
beaten unconscious, and raped that second time in July, days after her 
release from hospitalization. Skin grey, lips blue, naked, broken and 
bleeding, she was taken by ambulance July 29, 2012 to Shannon Medical 
Center.
    When she came to in the ambulance and hospital, she complained of 
severe head pain, bleeding and blurred vision to several people, 
including medical staff. We have no records of an x-ray
    Due to lack of action and failure of programs in place. I had to 
move from Washington state to Texas to keep my daughter alive; to fight 
for her rights when she was unable to do so, when and where DOD 
directive and programs for victims were ignored and denied by Chain of 
Command.
    Three generals and their administration knew about our daughter's 
situation and facts. Nearly a half dozen congressional leaders inquired 
and wrote letters on her behalf, to no avail. Only after an outside 
advocate, and I enlisted the help of Senator Tsongas, co-author of the 
Defense Strong Act, did our daughter receive a humanitarian transfer 
agonizing months late. Long after those in command denied her basic 
rights, lied about reports/info being filed to her and her family, 
ridiculed her before her unit and peers. If not for legal 
representation having been donated by the advocacy of Protect Our 
Defenders and support of family, she would have been left to live with 
a dishonorable discharge and no benefits to help with healing, recovery 
and the shame of it all.
    Our daughter and countless silent others, deserve better, they 
deserve action, here, now.
    Decades of casualties, of broken promises to reform programs and 
legislation have taken a staggering toll. Allowing Chain of Command to 
oversee proceedings, cases and victims costs lives, careers and 
billions in denied care/benefits to service men and women. Action and 
Reform are long overdue; accountability, care, legislation and programs 
for victims are only as good as those who enforce them.
    We had to fight hard to save our daughter and win her appeal. Her 
honorable discharge with a disability rating was recently granted. Over 
a year after the first assault--we are waiting for VA diagnosis for 
extent of damage to her brain from severe trauma to her head (still 
untreated), mind, body, and soul. She will never be the same. PTSD, 
terrifying nightmares and flashbacks may abate, but her life and career 
could have been drastically different had Chain of Command not been in 
control of her MST investigations, obtaining appropriate care and 
counseling outside the proximity of abusers, or had the power to deny/
ignore DOD directive and legislation.
    Please, act now to help those who serve to protect--remove Chain of 
Command from MST investigations to prevent abuse of power that has 
spanned decades unchecked. Protect our defenders; If not for their 
sacrifice and service, we would not be the United States of America.
    Our daughter is Airman Myah Bilton-Smith, a young woman who worked 
hard and was so very excited to serve her country. Please take action, 
demand action not broken promises to reform.
    Thank you for your time and observance of this grave matter.
                                 ______
                                 
                  Prepared Statement by Amos N. Guiora
    I write with respect to the hearing scheduled for Tuesday, June 4, 
2013 before the Senate Armed Services Committee addressing pending 
legislation regarding sexual assaults in the military.
    By way of background: I served for 19 years (1986-2005) in the 
Judge Advocate General's Corps of the Israel Defense Forces, retiring 
as a Lieutenant Colonel. In the course of my career I served as the 
Judge Advocate to IDF Navy and Home Front Command, as a Judge of the 
Gaza Strip Military Court, as the Legal Advisor to the Gaza Strip, and 
as Commander of the IDF School of Military Law.
    The significance is that I have served as both a Judge Advocate and 
Legal Advisor. It is in this context that I hope my comments below will 
be of help to the committee.
    The Israeli system is profoundly different from the current 
American system. The primary difference relates to the ``balance of 
power'' between the commander and the Judge Advocate. In short, while 
serving as Judge Advocate to the Navy and Home Front Command I was 
solely entrusted with the decision to order the filing of an indictment 
against a soldier or officer. The commander was granted no authority in 
the matter. While I notified the commander of my charging decision and 
was open to his input, the decision was exclusively mine (in 
consultation with my own commander, The Judge Advocate General).
    The decision to create a system whereby indictment decisions are in 
the exclusive bailiwick of the Judge Advocate reflects a profound 
belief that the separation between Judge Advocates and commanders is 
necessary in order to prevent undue command influence. It is, needless 
to say, a bone of contention, particularly when commanders are of the 
opinion that an indictment decision may impact Israeli national 
security.
    While commanders understandably express reservations as to their 
lack of a role in the decision making, the system properly (and 
effectively) minimizes command influence in the criminal process to 
maintain fuller accountability and impartiality in meeting out justice.
    That process, it is important to add, is distinct from the 
disciplinary process that is within the commanders' jurisdiction. 
However, a word of caution is in order: when the Judge Advocate 
receives the case file from the Military Police Investigation Unit 
there are four possible courses of action: filing an indictment; 
transferring the file to the commander for a disciplinary hearing; 
closing the file; and ordering further investigation.
    A related note, it is also important to add that the Israeli 
Supreme Court (sitting as the High Court of Justice) has the power to 
issue an ex parte order nisi against IDF commanders in response to 
petitions filed either by aggrieved individuals or human rights 
organizations acting on behalf of the aggrieved, even though minimal 
standing requirements have not been met. I call this to your attention 
as it shows that commanders are subject to rigorous and robust judicial 
review (by the Israel Supreme Court) in other respects.
    There is little doubt that recent high profile prosecutions have 
significantly enhanced the trust Israel Defense Forces soldiers feel in 
reporting instances of sexual assaults and harassment. A recent report 
reflecting an 80 percent increase in complaints filed with respect to 
sexual assault and harassment suggests an increase in soldiers' 
confidence that their complaints will be forcefully dealt with. The 
cause for this is, arguably, two-fold: the requirement imposed on 
commanders to immediately report all instances of sexual assault and 
harassment and the forceful prosecution policy implemented by JAG 
officers who are not in the ``chain of command.''
    It would be my pleasure to answer any questions you and the 
committee may have; needless to say, should the committee so decide, it 
would be my honor to testify. I take the liberty to add that I have 
twice testified before Congress, once before the Senate Judiciary 
Committee regarding U.S. detention policies (I was asked to compare to 
Israeli practices and models) and once before the House Homeland 
Security Committee.

    Chairman Levin. Questions for the record have been asked of 
a number of our witnesses on other panels. If questions are 
asked of any of you, I hope that you would respond to those 
questions for the record as promptly as possible. I expect 
there will be additional questions for the record, that we 
would very much appreciate your responding to, as we appreciate 
the testimony that you have given us today.
    With that, we will stand adjourned.
    [Questions for the record with answers supplied follow:]
               Questions Submitted by Senator Carl Levin
    unresolved issues with legislative proposal for new disposition 
                               authority
    1. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and Admiral Kenney, if legislation is enacted 
that requires that serious offenses be sent to a new disposition 
authority outside of the chain of command for a determination of 
whether the allegations should be prosecuted at a general or special 
court-martial, who would make the determination of whether an offense 
meets the threshold of a serious offense that must be referred to the 
new disposition authority for consideration?
    General Chipman. The legislative proposal (S. 967) does not set 
forth who would make the determination of whether an offense meets the 
threshold of a serious offense that must be referred to the new 
disposition authority for consideration. Current statutes, regulations, 
and policies set forth a comprehensive and interconnected set of 
procedures and responsibilities for multiple first responders, 
commanders, investigators, and prosecutors that govern the reporting, 
investigation, victim response and accountability for sexual assault. 
Implementation of S. 967 would represent the most significant amendment 
to the Uniform Code of Military Justice (UCMJ) since 1968, without 
consideration of the second- and third-order effects on the system. 
This change would generate legal challenges, confusion and 
inefficiency. The proposal should be studied by the Joint Services 
Committee and the section 576 Response System Panel before such a 
dramatic change to the UCMJ is directed.
    Legislative proposal S. 1197 and previously, S. 967, define serious 
offenses by designating specified Articles under the UCMJ as prohibited 
from initial disposition by a member of the accused servicemember's 
chain of command. Under S. 967, those offenses included Articles 92, 
118-132, and 134, UCMJ. S. 1197 amended S. 967 to remove Articles 92 
and 134, UCMJ, from the offenses prohibited from initial disposition by 
the accused's chain of command. All UCMJ offenses not authorized for 
chain of command disposition must be disposed of by a new disposition 
authority outside the chain of command. This officer, according to S. 
1197, must decide first, whether the offense should go to a court-
martial and second, whether it should go to a General or Special court-
martial.
    Admiral DeRenzi. On April 20, 2012, the Secretary of Defense 
withheld initial disposition authority from all commanders within the 
Department of Defense (DOD) who do not possess at least special court-
martial convening authority and who are not in the grade of O-6 or 
higher with respect to the following alleged offenses: rape, in 
violation of Article 120 of the UCMJ; sexual assault, in violation of 
Article 120 of the UCMJ; forcible sodomy, in violation of Article 125 
of the UCMJ; and all attempts to commit such offenses, in violation of 
Article 80 of the UCMJ. This withholding applies to all other alleged 
offenses arising from or relating to the same incidents(s), whether 
committed by the alleged perpetrator or the alleged victim of the rape, 
sexual assault, forcible sodomy, or the attempts thereof. The sexual 
assault initial disposition authority (SA-IDA) must review the 
investigation into the allegations and consult with a judge advocate 
before making any disposition decision.
    The Secretary of Defense policy provides appropriate senior officer 
oversight of the disposition of sexual assault allegations. The 
Secretary of Defense retains the authority to amend the policy based 
upon experience over time, if necessary. A detailed assessment of any 
specific proposal to send other serious offenses outside of the chain 
of command would be necessary to determine the appropriate disposition 
authority.
    General Harding. There are a number of potential options. Using the 
May 16, 2013 draft of the Military Justice Improvement Act, it would 
appear all non-uniquely military offenses which have a maximum 
confinement of greater than 1-year would be forwarded to this new 
disposition authority as a matter of law. Commanders would then retain 
disposition authority over uniquely military offenses as defined in 
section 2(A)2 of the proposed act and any other offense with 1-year or 
less maximum confinement. Judge Advocates, investigators and local 
commanders would review each case at the local level to determine 
whether a case meets the requirements for forwarding to the new 
disposition authority or would be retained by the commander for 
disposition.
    General Ary. Under S. 967, the ``determination whether to try 
[serious offenses] by court-martial'' must be made by an O-6 judge 
advocate with significant trial experience. A ``serious offense'' is 
defined as a charged offense under which the maximum punishment 
authorized includes confinement for more than 1 year, and that is not 
on the list of ``excluded offenses.'' Because confinement for 1-year is 
generally the benchmark for defining a felony offense in civilian 
jurisdictions, this new disposition authority can be referred to as the 
Felony Initial Disposition Authority (Felony IDA), even though the 
proposal does not identify a title for the disposition authority.
    The proposal is silent on the procedures by which ``serious 
offenses'' would be referred to the Felony IDA for a disposition 
decision. The lack of clarity on this matter would have a tremendous 
effect on the processing of a vast majority of Marine Corps' criminal 
allegations, not just ``serious offenses.'' Under Rule for Court-
Martial (RCM) 601, all known offenses are ordinarily referred to a 
single court-martial. While the preference for joinder in the 
discussion to RCM 601 is not binding on a convening authority, as a 
matter of practice the vast majority of offenses are referred to a 
single court-martial for the sake of judicial economy and swift 
administration of justice. If a Felony IDA only had jurisdiction over 
serious offenses, however, there would be no single jurisdictional 
authority to ensure all offenses went to the same court-martial. This 
would result in parallel prosecutions in separate courts; one IDA-
determined court for the ``serious'' offenses and one commander-
determined court for the ``not serious'' offenses. This would create an 
enormous strain on resources (prosecutors, defense counsel, judges, 
court reporters, et cetera) and potentially slow down all prosecutions. 
As an example, in a case involving an alleged rape (``serious 
offense''), drug distribution (not ``serious''), disrespect toward a 
superior officer (not ``serious''), and false official statement (not 
``serious''), only the alleged rape would be sent to the Felony IDA. 
The remaining offenses would require a separate court-martial.
    Regardless of what offenses are forwarded to the Felony IDA for a 
disposition decision, the Marine Corps believes that the commander of 
the accused, through consultation with his or her staff judge advocate 
(SJA) and servicing prosecution office (the unit that would actually 
draft the charges), would be responsible for forwarding cases involving 
``serious offenses'' to the Felony IDA. In the Marine Corps, the SA-
IDA, who is an O-6 special court-martial convening authority or higher, 
would be responsible for forwarding an allegation of sexual assault to 
the Felony IDA. A ``sexual assault'' for SA-IDA purposes in the Marine 
Corps includes any non-consensual sexual act or contact between adults, 
forcible sodomy, child sex crime, or attempts to commit those offens
    Admiral Kenney. Coast Guard policy requires all actual, alleged, or 
suspected felony violations of the UCMJ to be reported to Coast Guard 
Investigative Service (CGIS). This requires commands to report to CGIS 
a wide range of offenses, including rape, sexual assault, or abusive 
sexual contact. Presumably, legislation would define a serious offense. 
Otherwise, the Coast Guard would specify in policy what constitutes a 
``serious offense'' requiring referral to an independent disposition 
authority. Our current reporting policy and practice suggests that all 
potential Article 120 offenses would reach the disposition authority.
    Whether by statute or policy, unit commanders would be required to 
report potential ``serious offense'' allegations to CGIS for 
investigation. The ultimate decision on a specific case would likely 
rest with the new disposition authority on what constitutes a ``serious 
offense.'' Moreover, a military judge would likely grant a motion to 
dismiss for improper referral of a ``serious offense'' if the charge 
was referred to court-martial by a military commander and not by the 
new disposition authority.

    2. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and Admiral Kenney, if a sexual assault occurs on 
a ship or battlefield, what are the responsibilities of the on-site 
commander?
    General Chipman. Under current Army regulations, battlefield 
commanders have initial and continuing responsibilities for the morale, 
safety, and welfare of their soldiers, including victims. Commanders 
are responsible for referring all allegations of sexual assault to 
Criminal Investigative Division (CID), contacting the Staff Judge 
Advocate, contacting higher headquarters, contacting the Sexual Assault 
Response Coordinator (SARC), providing updates to the victim and 
ensuring appropriate victim response. Removal of the commander from the 
disposition process could affect all of the commander's current 
responsibilities and shift those responsibilities to an authority 
outside the chain of command who might not be present in the combat 
zone. Removing disposition authority from the on-site commander will 
undermine the commander's ability to fulfill his or her 
responsibilities for the morale, safety, and welfare of the soldiers.
    The legislative proposal, S. 967, does not address effects on the 
current responsibilities of an on-site battlefield commander after a 
sexual assault occurs. Current statutes, regulations and policies set 
forth a comprehensive and interconnected set of procedures and 
responsibilities for multiple first responders, commanders, 
investigators, and prosecutors that govern the reporting, 
investigation, victim response and accountability for sexual assault. 
Implementation of S. 967 would represent the most significant amendment 
to the UCMJ since 1968, without consideration of the second- and third-
order effects on the system. This change would generate legal 
challenges, confusion and inefficiency. The proposal should be studied 
by the Joint Services Committee and the section 576 Response System 
Panel before such a dramatic change to the UCMJ is directed.
    Admiral DeRenzi. Commanders, both on ships and on battlefields, are 
required to take certain immediate actions upon receipt of an 
allegation of sexual assault. Commanders are tasked to support the 
victim, report the allegation, and refer all Unrestricted Reports of 
sexual assault to the appropriate Military Criminal Investigative 
Organization for investigation. This change reflects the requirement 
outlined in our policy, DODI 6495.02.
    Commanders are responsible for ensuring victims are provided 
information on and access to appropriate services. This includes, but 
is not limited to: providing for the immediate safety and security of 
the victim, medical services, access to a victim advocate and SARC, the 
right to request an expedited transfer, all rights delineated under the 
Victim and Witness Assistance Program, and legal assistance. Commanders 
may also issue Military Protective Orders, transfer the alleged 
offender, or order the alleged offender into pre-trial confinement when 
warranted.
    Upon receiving an allegation of sexual assault, a commander must 
submit a Special Incident Report under Chief of Naval Operations 
Instruction F3100.6J. This incident report is sent to the commander's 
immediate superior in command, the Chief of Naval Operations, the 
Director of the Naval Criminal Investigative Service (NCIS), and the 
Judge Advocate General. The policy requires commanders to make an 
initial voice report followed by a written report that provides details 
known at the time. In addition to the written report, commanders are 
required to make a face-to-face report to the first flag officer in the 
chain of command within 30 days of the allegation.
    On April 20, 2012, the Secretary of Defense withheld initial 
disposition authority from all commanders within DOD who do not possess 
at least special court-martial convening authority and who are not in 
the grade of O-6 or higher with respect to the following alleged 
offenses: rape, in violation of Article 120 of the UCMJ; sexual 
assault, in violation of Article 120 of the UCMJ; forcible sodomy, in 
violation of Article 125 of the UCMJ; and all attempts to commit such 
offenses, in violation of Article 80 of the UCMJ. This withholding 
applies to all other alleged offenses arising from or relating to the 
same incidents(s), whether committed by the alleged perpetrator or the 
alleged victim of the rape, sexual assault, forcible sodomy, or the 
attempts thereof. Thus if the commander does not qualify as a SA-IDA 
under the Secretary of Defense policy, the commander must forward the 
investigation into the alleged offenses to a commander who does qualify 
as a SA-IDA. The SA-IDA must review the investigation into the 
allegations and consult with a judge advocate before making any 
disposition decision.
    General Harding. The responsibilities are the same for a commander 
regardless of location. First and foremost, a commander ensures the 
safety of the members of his unit and nearly simultaneously should 
ensure an appropriate investigation is initiated. If appropriate, a 
commander may issue a military protective order, remove an accused from 
his duty section, recommend placing an accused in pretrial confinement 
or grant a victim an expedited transfer, if requested.
    General Ary. In the absence of implementing policies or regulations 
regarding the implementation of S. 967, the Marine Corps believes that 
the responsibilities of the commander would remain the same until 
charges are drafted. The proposal states that the Felony IDA will act 
``[w]ith respect to charges under chapter 47 of title 10, United States 
Code (the Uniform Code of Military Justice).'' However, the proposal is 
otherwise silent on the procedures prior to charges being preferred and 
after the initial disposition decision. Therefore, the commander would 
likely proceed as he or she currently does upon receipt of a sexual 
assault allegation. This includes reporting the allegation to NCIS; 
providing victim advocate and SARCs to the victim; making legal 
assistance attorneys available to consult with the victim; processing 
expedited transfer requests; filing a Serious Incident Report to the 
Commandant of the Marine Corps; filing an 8-day brief to the first 
general officer in the victim's chain of command; making a pre-trial 
confinement decision; possibly removing the accused from the command; 
facilitating the expedited transfer of the victim, if requested; and 
issuing military protective orders as needed. These actions would be 
required on a ship, on the battlefield, and in garrison, and would all 
be taken after consultation with the commander's staff judge advocate.
    Even though S. 967 should not affect the above listed requirements, 
there are two significant procedural requirements not addressed by S. 
967, the Article 32 investigation and Article 34 pretrial advice 
requirement. These two issues could create fatal jurisdictional 
problems with the effective prosecution of offenses under S. 967.
    The first issue is that S. 967 does not address the Article 32 
investigation, which is required prior to referring charges to general 
court-martial. The Article 32 investigation is an important check on 
the government and ensures that the accused is not brought to trial on 
a case that lacks merit. The proposal says the Felony IDA's 
``determination to try such charges,'' and at which forum, ``shall be 
binding on any applicable convening authority.'' There is no 
explanation of what specific action is being taken with the Felony 
IDA's ``determination:'' is it an initial disposition decision under 
RCM 306; is it preferral of charges under RCM 307; or is it referral of 
charges under RCM 601? These are all separate and distinct steps which 
are apparently merged into one action by the Felony IDA. Because an 
Article 32 is a jurisdictional requirement before a general court-
martial can be convened, its absence may be viewed as reversible error 
by an appellate court.
    The second issue with S. 967 is that it ignores the requirement for 
a staff judge advocate to provide pretrial advice after the Article 32 
investigation in accordance with Article 34. The IDA is not a commander 
and cannot receive the Article 34 advice, and there is also no 
commander with a disposition decision to make who can be advised under 
Article 34. Because Article 34 is a jurisdictional requirement, its 
absence may also create reversible error.
    Admiral Kenney. The first response and continuous obligation by 
unit commanders will always be ensuring the safety and security of a 
victim. Commanders will determine if the victim desires or needs any 
emergency medical care. Victims will be advised of the restricted and 
unrestricted reporting options, and advised of their right to, and the 
benefits of, a medical forensic examination regardless of their 
reporting option. If underway and a feasible port destination is not 
readily available, arrangements will be made to medevac the victim for 
emergency medical care and/or a medical forensic examination. 
Commanders will also determine if the victim desires or needs 
protection. In port, commanders will determine the nature of pretrial 
restraint to impose on the accused that may include pretrial 
confinement. The commander will also consider temporary or permanent 
reassignment of the accused or the victim and imposition of a military 
protective order against the offender to ensure the safety of the 
victim. If the incident occurs underway, commanders have the inherent 
authority to restrict or confine the offender.
    In the event of an unrestricted report of sexual assault, unit 
commanders must immediately report the incident to CGIS and the SARC. 
Under Coast Guard policy, only CGIS may conduct a formal criminal 
investigation involving sexual assault offenses with unrestricted 
reports. Agency policy prohibits command field-level investigation into 
allegations of sexual assault.
    While some cutters in the Coast Guard are less than a day's trip 
from the nearest port call, many cutters may be underway from port. 
Because CGIS agents are not assigned to Coast Guard cutters, there may 
be situations where providing a CGIS agent will pose logistical 
challenges. The SARC, CGIS and the servicing legal office will work 
closely with the cutter's command to provide an agent to the cutter as 
expeditiously as possible.
    In addition to addressing safety concerns and complying with Coast 
Guard reporting requirements and the victims' election of either a 
restricted or unrestricted reporting option, a commander is responsible 
for ensuring the victim understands the availability and benefits of 
having a victim advocate.

    3. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and Admiral Kenney, does the onsite commander 
have to send the alleged perpetrator, victim, and witnesses back to a 
secure location so they are available to the disposition authority?
    General Chipman. The legislative proposal (S. 967) does not address 
whether the independent disposition authority will review a written 
record of the law enforcement investigation, or whether the alleged 
perpetrator, victim, and witnesses have to be available, in person, to 
the disposition authority. Under current procedures in place, a sexual 
assault allegation made in a deployed setting can be investigated and 
prosecuted onsite without significant interruption of operations. One 
of the essential features of the UCMJ and the central role of the 
commander is portability. With over 60,000 troops deployed currently 
and as many as 100,000 at the height of operations over the past 10 
years, commanders must be able to administer discipline wherever they 
are and in full transparent view of troops to ensure faith and trust in 
our system. If S. 967 was implemented, the portability and visibility 
of the system would be impacted. Removing disposition authority from 
the on-site commander will undermine the commander's ability to fulfill 
his or her responsibilities for the morale, safety and welfare of the 
soldiers. This could also create perceptions in the unit that victims 
have made an allegation merely to remove themselves from the combat 
zone. Current statutes, regulations and policies set forth a 
comprehensive and interconnected set of procedures and responsibilities 
for multiple first responders, commanders, investigators, and 
prosecutors that govern the reporting, investigation, victim response 
and accountability for sexual assault. Implementation of S. 967 would 
represent the most significant amendment to the UCMJ since 1968, 
without consideration of the second- and third-order effects on the 
system. This change would generate legal challenges, confusion and 
inefficiency. The proposal should be studied by the Joint Services 
Committee and the section 576 Response System Panel before such a 
dramatic change to the UCMJ is directed.
    Admiral DeRenzi. In most cases, the initial disposition authority 
can review evidence, consult with his or her judge advocate, and render 
an initial disposition decision without the physical presence of the 
alleged perpetrator, victim, and witnesses. The NCIS's report of 
investigation generally provides the initial disposition authority 
sufficient information concerning the alleged offense(s). Should 
additional information be required, NCIS will gather the information 
and submit a supplementary report of investigation to the disposition 
authority. Of course, should the disposition authority convene a court-
martial to try an accused servicemember, then the physical presence of 
the accused, the victim, and witnesses would be required. However, 
courts-martial have been successfully conducted in deployed 
environments.
    General Harding. The flexibility and reach of the UCMJ is one of 
its essential elements which has allowed for courts-martial in combat 
zones since the inception of the UCMJ. However, depending on the 
circumstances, a commander may also choose to send individuals back for 
a variety of reasons, to include their own safety or health.
    General Ary. Currently, commanders can make all disposition 
decisions at the location of the alleged crime, whether it is in a 
forward deployed location or in garrison. Because the commander has 
administrative control of those parties, he or she is able to ensure 
that they are available to participate in the investigation and 
military justice process. If the commander was no longer the 
disposition authority, it is unclear if the commander would need to 
send the accused, victim, and witnesses to the location of the new 
disposition authority.
    Admiral Kenney. Current practice does not require transfer of 
witnesses, victims, or alleged offenders to the location of the 
disposition authority. Under Coast Guard's Sexual Assault Prevention 
and Response (SAPR) Program, a victim of sexual assault will be 
reassigned if requested by the victim or if in the victim's best 
interest and a transfer does not compromise or hamper ongoing 
investigative activity. Likewise, reassignment of the alleged offender 
is made when it is in the best interest of the victim and the unit. 
Reassignment decisions are made in conjunction with the commander, 
staff judge advocate, CGIS agent, victim advocate, and the victim.
    In the event of an unrestricted report, victims and witnesses are 
advised to fully cooperate with the investigation, are made available 
to both government and defense counsel, and may be compelled to travel 
to an Article 32 hearing, a court-martial proceeding, or other required 
venue.
    Initial disposition of cases usually occurs after CGIS agents have 
completed their investigation and the staff judge advocate has formally 
provided independent legal advice to the convening authority.

    4. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and Admiral Kenney, what effect would this 
legislation have on the commander's authority to place an accused in 
pre-trial confinement pending investigation and disposition of the 
offense?
    General Chipman. The legislative proposal, S. 967, does not address 
the commander's ability to place an accused in pre-trial confinement 
pending investigation and disposition of the offense.
    RCM 304 governs pre-trial restraint and provides commanders with 
the primary responsibility for determination of appropriate actions 
under the rule. Under the proposed statutory scheme, commanders may 
still place an accused in pre-trial confinement but they no longer have 
the ability to control the timing of the preferral and referral of 
court-martial charges to ensure that the accused's constitutional 
rights to a speedy trial are not infringed upon, especially in cases 
that involve non excludable offenses. For non excludable offenses, the 
initial disposition authority is an independent O-6 Judge Advocate and 
the convening authority resides in a centralized body of officers 
geographically located elsewhere. The proposed legislation fails to 
consider the delays that will result in waiting for the O-6 Judge 
Advocate to prefer charges, in appointing and conducting a pretrial 
Article 32 investigation, and then obtaining referral of the case by a 
convening authority who is often at a different location. The potential 
adverse impact on the speedy trial rights of the accused under this 
proposal, may result in a chilling effect on a commander's use of 
pretrial confinement which in turn could adversely impact the 
maintenance of good order and discipline and the health, safety, and 
welfare of soldiers in some cases. Current statutes, regulations and 
policies set forth a comprehensive and interconnected set of procedures 
and responsibilities for multiple first responders, commanders, 
investigators, and prosecutors that govern the reporting, 
investigation, victim response and accountability for sexual assault. 
Implementation of S. 967 would represent the most significant amendment 
to the UCMJ since 1968, without consideration of the second- and third-
order effects on the system. This change would generate legal 
challenges, confusion and inefficiency. The proposal should be studied 
by the Joint Services Committee and the section 576 Response System 
Panel before such a dramatic change to the UCMJ is directed.
    Admiral DeRenzi. Commanders ordering an accused servicemember into 
pretrial confinement are required to make an initial probable cause 
determination, provide written justification of that determination, and 
ensure timely periodic reviews of continued confinement. Commanders who 
order servicemembers into pretrial confinement must coordinate with 
initial disposition authorities to ensure compliance with the 
applicable rules; however, there will be little negative impact to the 
commander's authority.
    Pursuant to Rule for Courts-Martial (RCM) 305, prior to ordering a 
servicemember into pretrial confinement, the commander ordering 
confinement must ensure that probable cause exists that the accused 
committed an offense under the UCMJ and that lesser forms of restraint 
are insufficient. Within 48 hours of the initiation of confinement, the 
commander must ensure a neutral and detached officer reviews the 
initial confinement decision. Within 72 hours, the commander must 
document the grounds for his or her determination in a written 
memorandum, along with the reasons for continued pretrial confinement. 
Finally, a review of ``the probable cause determination and necessity 
for continued pretrial confinement'' by a ``neutral and detached 
officer appointed in accordance with regulations prescribed by the 
Secretary concerned'' must be made within seven days of the initial 
confinement decision.
    General Harding. As it is currently drafted, it does not appear the 
Military Justice Improvement Act would impact a commander's ability to 
place an individual in pretrial confinement as provided in Articles 9-
13 of the UCMJ.
    General Ary. The authority of a commander to place an accused in 
pre-trial confinement pending investigation and disposition of the 
offense derives from Article 9, UCMJ, which allows ``commissioned 
officers'' to order persons into arrest or confinement for probable 
cause. Because the authority to order a person into pretrial 
confinement is not tied to a convening authority, commanders would 
retain the authority to place the accused in pretrial confinement.
    Even though commanders would retain this authority, the creation of 
a new disposition authority severely limits the commander's authority. 
If the new disposition authority decided not to go forward with the 
misconduct that was the basis for the commander's pretrial confinement 
decision, the commander would have to immediately remove the accused 
from pre-trial confinement.
    There is one other pre-trial confinement complication that is 
related to a new disposition authority. Placing an accused into pre-
trial confinement starts the ``speedy trial'' clock. Sometimes the 
decision to place an accused in pre-trial confinement is made before 
all of the investigation is complete and the command is aware of the 
full nature of the misconduct, and how it will most likely be charged. 
Before a commander can charge a case, it must be fully investigated and 
reviewed. This alone can create speedy trial concerns in complicated 
cases. If the new disposition authority would need additional time, 
after the time already used by the commander while the accused was 
confined, to review all of the evidence in order to make an independent 
and informed disposition decision, there is an increased risk that the 
government will have difficulty bringing the accused to trial in a 
timely manner.
    Admiral Kenney. Unit commanders are not restricted by existing 
policy or this proposed legislation from taking all necessary 
discretionary actions related to the alleged offender. This would 
include placing a suspected offender in pretrial restraint, which 
includes the possibility of pretrial confinement, as well as issuing a 
military protective order against the offender.

    5. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and Admiral Kenney, if the new disposition 
authority does not refer an allegation to a general or special court-
martial, can the commander offer the accused an Article 15 for the 
offense considered by the disposition authority, and if the accused 
refuses the Article 15 and demands trial by court-martial, what does 
the commander do?
    General Chipman. The legislative proposal, S. 967, does not address 
what a commander's option will be if the disposition authority does not 
refer an allegation to a court-martial and the commander offers the 
accused an Article 15 for the same offense. It is possible that a 
defense counsel would advise an accused soldier to turn down the 
Article 15 (or summary court-martial) knowing that the commander does 
not have the ability to then proceed with a special or general court-
martial.
    Implementation of S. 967 could remove non-judicial disciplinary 
options for a commander in the event the new disposition authority 
declines to refer charges to a court-martial. This will leave 
misconduct unpunished that is currently punishable under the UCMJ.
    Current statutes, regulations and policies set forth a 
comprehensive and interconnected set of procedures and responsibilities 
for multiple first responders, commanders, investigators, and 
prosecutors that govern the reporting, investigation, victim response 
and accountability for sexual assault. Implementation of S. 967 would 
represent the most significant amendment to the UCMJ since 1968, 
without consideration of the second- and third-order effects on the 
system. This change would generate legal challenges, confusion and 
inefficiency. The proposal should be studied by the Joint Services 
Committee and the section 576 Response System Panel before such a 
dramatic change to the UCMJ is directed.
    Admiral DeRenzi. On April 20, 2012, the Secretary of Defense 
withheld initial disposition authority from all commanders within DOD 
who do not possess at least special court-martial convening authority 
and who are not in the grade of O-6 or higher with respect to the 
following alleged offenses: rape, in violation of Article 120 of the 
UCMJ; sexual assault, in violation of Article 120 of the UCMJ; forcible 
sodomy, in violation of Article 125 of the UCMJ; and all attempts to 
commit such offenses, in violation of Article 80 of the UCMJ. This 
withholding applies to all other alleged offenses arising from or 
relating to the same incidents(s), whether committed by the alleged 
perpetrator or the alleged victim of the rape, sexual assault, forcible 
sodomy, or the attempts thereof. Therefore, if the commander does not 
qualify as a SA-IDA under the Secretary of Defense policy, the 
commander must forward the investigation into the alleged offenses to a 
commander who does qualify as a SA-IDA. The SA-IDA must review the 
investigation into the allegations and consult with a judge advocate 
before making any disposition decision.
    Under RCM 306, a superior commander may withhold the authority to 
dispose of offenses in individual cases, types of cases, or generally. 
Therefore, an SA-IDA may limit the authority of a subordinate commander 
to impose Article 15 non-judicial punishment (NJP) after an initial 
disposition decision has been made.
    However, if the subordinate commander's authority has not been 
limited under RCM 306, he or she retains the discretion to impose 
Article 15 NJP for an offense that was previously considered by the SA-
IDA. If the accused refuses Article 15 and demands trial by court-
martial, the subordinate commander may convene and refer the charges to 
a court-martial.
    General Harding. Assuming this is a case that must be sent to the 
new disposition authority under section 2(A) of the Military Justice 
Improvement Act and was returned from the new disposition authority for 
a commander to take appropriate action, a commander could offer an 
Article 15. If the member refused the Article 15 and demanded trial by 
court-martial, the commander would either dismiss the Article 15 and 
possibly offer administrative punishment (e.g., letter of reprimand) or 
refer it back to the new disposition authority with a renewed 
recommendation that the new disposition authority refer the case to a 
court-martial.
    General Ary. Non-judicial punishment (NJP) is a leadership tool 
providing military commanders a prompt and essential means of 
maintaining good order and discipline. In order to impose NJP, a 
servicemember is notified by the commander of the nature of the 
misconduct of which he is accused, the evidence supporting the 
accusation, and the commander's intent to impose NJP. Article 15, UCMJ, 
affords the servicemember a right to turn down NJP and demand trial by 
court-martial except for those accused attached to or embarked on a 
vessel. Under the proposed legislation, the ability of the commander 
will be compromised.
    For offenses requiring disposition by the proposed legislation's 
Felony IDA, jurisdiction lies with the Felony IDA, not the commander. 
Therefore, the commander would not be able to NJP the marine initially. 
The Felony IDA would not have NJP authority under Article 15 because it 
only inures to commanders. Additionally, if the Felony IDA decides not 
to take the case to special court-martial (SPCM) or general court-
martial (GCM), that decision is binding on the commander. When this 
``do not prosecute'' decision is made a commander can only offer 
disposition of the case at a lesser forum such as NJP, and the marine 
could simply refuse. Once NJP is refused, there is no remaining option 
to punish the marine. Under the current system, however, a Marine who 
refuses NJP can be taken to a SPCM or GCM. As an example of this, 10 
U.S.C. section 923 (Article 123) is the military's punitive forgery 
statute, and has a maximum punishment of 5 years. Forgery can be 
anything from falsifying an order, an inherently military offense but a 
serious one, to trying to alter a liberty card, a disciplinary 
infraction that must be punished, but is not likely to be viewed as a 
felony-level offense. Both of these examples are most appropriately 
handled within the command. Under the proposed legislation, however, 
forgery is considered a serious offense and jurisdiction only belongs 
to the IDA. This means that a commanding officer may not have any 
authority to instill discipline related to forgery-related misconduct.
    Admiral Kenney. A commander could dispose of a case by NJP after an 
independent disposition authority chooses not to refer charges to a 
general or special court-martial. Administration of NJP would, however, 
be complicated by severing the convening authority function from 
commanders because some coordination between the independent 
disposition authority and commander would have to occur so the 
commander would be informed of the matter and the decision of the 
disposition authority not to proceed, and coordination would have to 
occur again where an accused declines NJP and a convening authority 
must decide whether and to what level of court-martial the case should 
be referred.
    Except in rare situations where a servicemember is attached to or 
embarked on a vessel, a military member may reject NJP and demand trial 
by court-martial. In most cases, servicemembers accept NJP when 
offered. Currently, a commander can refer a case to court-martial if a 
member refuses NJP. If a commander lacks the ability to refer cases to 
court-martial, we expect that a member would be more likely to refuse 
NJP knowing that an independent disposition authority has already 
declined to refer the charges to a courts-martial. This result would 
have negative consequences on the exercise of command authority. 
Commanders must ensure mission accomplishment and do so by maintaining 
unit readiness and enforcing discipline. Dividing the authority to 
impose NJP from the ability to refer cases to court-martial would 
weaken command authority, which would be exacerbated where accused have 
a structural incentive to refuse NJP.

    6. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and Admiral Kenney, would the commander still 
have the authority to issue no-contact orders and to assign the alleged 
perpetrator and victim to duties so that they would not have to work 
with each other?
    General Chipman. The legislative proposal, S. 967, does not address 
the authority of commanders to issue no-contact orders and to transfer/
reassign offenders and victims.
    It is assumed that these authorities would remain with the 
commander. However, many administrative actions taken pre-trial require 
that the actions be made with a view toward court-martial. It is 
unclear whether commanders will still be able to make these decisions 
if disposition authority is taken away from the command. Current 
statutes, regulations and policies set forth a comprehensive and 
interconnected set of procedures and responsibilities for multiple 
first responders, commanders, investigators, and prosecutors that 
govern the reporting, investigation, victim response and accountability 
for sexual assault. Implementation of S. 967 would represent the most 
significant amendment to the UCMJ since 1968, without consideration of 
the second- and third-order effects on the system. This change would 
generate legal challenges, confusion and inefficiency. The proposal 
should be studied by the Joint Services Committee and the section 576 
Response System Panel before such a dramatic change to the UCMJ is 
directed.
    Admiral DeRenzi. Commanders currently have the authority to issue 
Military Protective Orders (MPOs), transfer the alleged perpetrator or 
order the alleged perpetrator into pretrial confinement when warranted, 
and conduct an ``expedited transfer'' of a victim, if the victim so 
requests. This authority is based upon the commander's responsibility 
for safety and good order and discipline and is independent of court-
martial convening authority and initial disposition authority. 
Therefore, a commander's authority to issue MPOs or transfer the 
alleged perpetrator or victim would be unaffected by changes in court-
martial process.
    General Harding. Commanders would still retain their inherent 
authority to command their units. This would include issuing no-contact 
orders and moving personnel within their unit.
    General Ary. In the absence of implementing policies or regulations 
regarding the implementation of S. 967, the Marine Corps believes that 
the responsibilities of the commander would remain the same until 
charges are drafted. The proposal states that the Felony IDA will act 
``[w]ith respect to charges under chapter 47 of title 10, U.S.C. (the 
Uniform Code of Military Justice).'' However, the proposal is otherwise 
silent on the procedures prior to ``charges'' being preferred and after 
the initial disposition decision. Therefore, the commander would likely 
proceed as he or she currently does upon receipt of a sexual assault 
allegation. This includes reporting to NCIS; providing victim advocate 
and SARCs to the victim; making legal assistance attorneys available to 
consult with the victim; processing expedited transfer requests; filing 
a Serious Incident Report to the Commandant of the Marine Corps; filing 
an 8-day brief to the first general officer in the victim's chain of 
command; making a pre-trial confinement decision; possibly removing the 
accused from the command; facilitating the expedited transfer of the 
victim, if requested; and issuing military protective orders as needed. 
These actions would all be taken after consultation with the 
commander's staff judge advocate.
    Admiral Kenney. Yes. It is within the commander's inherent 
authority to issue military no-contact orders as well as reassign 
members within their command. Moreover, under the Coast Guard's SAPR 
Program, a victim of sexual assault will be reassigned if requested by 
the victim or it is in the victim's best interest and a transfer does 
not compromise or hamper ongoing investigative activity. Likewise, 
reassignment of the alleged offender is made when it is in the best 
interest of the victim and the unit. Reassignment decisions are made in 
conjunction with the commander, staff judge advocate, CGIS agent, 
victim advocate, and the victim.

    7. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and Admiral Kenney, would an accused have a right 
to be represented by a lawyer before the new disposition authority?
    General Chipman. The legislative proposal, S. 967, does not address 
the right to counsel for an accused before the disposition authority, 
nor does it define the process for the disposition decision.
    Under current policy, an accused soldier may seek the advice of a 
trial defense attorney at any time during an investigation. Once 
charges are preferred, if the accused has not already sought the advice 
of a trial defense counsel, a counsel will be detailed to represent the 
soldier.
    Current statutes, regulations and policies set forth a 
comprehensive and interconnected set of procedures and responsibilities 
for multiple first responders, commanders, investigators, and 
prosecutors that govern the reporting, investigation, victim response 
and accountability for sexual assault. Implementation of S. 967 that 
would represent the most significant amendment to the UCMJ since 1968 
without consideration of the second- and third-order effects on the 
system will generate legal challenges, confusion and inefficiency.
    Admiral DeRenzi. The right to receive advice and representation of 
counsel would not be affected by legislation requiring a new 
disposition authority. An initial disposition authority considers 
investigation reports from the NCIS and, in consultation with a judge 
advocate, makes an initial disposition decision. Later proceedings 
require the presence of the accused, counsel, victim, and witnesses; 
however, the initial disposition determination does not.
    Prior to charges being preferred, servicemembers may seek advice 
from counsel pertaining to their rights during an investigation, 
Article 15 NJP, administrative proceedings, and court-martial.
    The UCMJ requires that defense counsel be detailed to an accused 
facing charges at general or special court-martial. The right to 
counsel extends to pre-trial hearings, such as Article 32 
investigations. The authority to assign detailed defense counsel to a 
particular case rests with the commanding officer of the cognizant 
Defense Service Office, and not the convening or disposition authority.
    General Harding. It appears an accused would retain the ability to 
be represented by counsel before the new disposition authority to the 
same extent he is eligible to be represented by counsel before the 
convening authority today.
    General Ary. The accused's right to be represented by a lawyer 
before the new disposition authority is not discussed in S. 967. The 
Marine Corps believes that the accused would maintain the same rights 
to counsel currently in place for marines charged with violations of 
the UCMJ. Military defense counsel are assigned to an accused after 
preferral of charges by the Defense Services Organization. Under 
Article 27, a military accused has a right to counsel during a special 
or general court-martial (including an Article 32 hearing). A marine 
does not have a right to be represented by counsel at NJP, or while any 
alleged criminal offenses are being investigated by the law 
enforcement.
    Because the new disposition authority is responsible for making an 
initial disposition decision, based upon a review of law enforcement 
investigations, the Marine Corps does not believe that an accused would 
have a right to military a lawyer before the new disposition authority.
    Admiral Kenney. Yes. All accused are entitled to no-cost, 
independent military defense counsel or may seek civilian counsel. The 
right to consult with an attorney may be invoked when a servicemember 
is advised of Article 31(b) rights against self-incrimination. The 
right to representation by a military defense counsel attaches when 
charges are preferred against a servicemember.

    8. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and Admiral Kenney, how many of these new 
disposition authorities would you need and where would they be located?
    General Chipman. The Army estimates that we would need 
approximately 74 new disposition authorities to ensure the timely and 
efficient processing of UCMJ actions. The new disposition authorities 
would need to be co-located with, although not assigned to, the command 
to allow the military justice process to remain portable, local and 
visible.
    The 74 new disposition authorities would need to be dedicated to 
this task only given the volume of work. The legislative proposal S. 
967 covers offenses under Articles 92 and 118-133 with maximum 
punishments of more than 1 year in confinement. Army fiscal year 2012 
crime statistics indicate that there were 18,945 allegations of unique 
offenses (committed by 13,816 unique offenders) that would have 
required review by the new disposition authority.
    S. 967 requires that the new disposition authority be outside the 
chain of command of the member subject to the charges. Presumably, this 
would disqualify the use of Staff Judge Advocates, who are assigned to 
the same command as the General Court-Martial Convening Authority, and 
are currently the advisors to the convening authority on military 
justice matters. Therefore, a separate 0-6 disposition authority would 
be required at each of the 74 current General Court-Martial Convening 
Authorities.
    The Army would require new authorizations to fill the new 
disposition authority positions. S. 967 requires the new disposition 
authority be an 0-6 colonel with significant trial experience. The Army 
Judge Advocate General Corps currently has 152 colonels. Of the 152 
colonels: 95 colonels would not be eligible to serve as a new 
disposition authority as they are currently serving as Staff Judge 
Advocates, military judges, criminal appellate attorneys, or in defense 
counsel supervisory positions. Of the remaining 57 colonels, 11 
colonels are in military professional education schools, 10 Colonels 
work in DOD positions, and the remaining 36 colonels are assigned to 
non-criminal law positions. Not all of these Colonels have significant 
trial experience.
    If S. 967 were imposed, the Army would require additional 
authorizations but would not be able to immediately fill those 
authorizations with personnel that meet the requirements of S. 967. The 
Army's potential bridging strategy, to assign existing colonels with 
significant trial experience as disposition authorities as a collateral 
duty, would generate inefficiencies and a backlog of cases to be 
disposed of.\1\
---------------------------------------------------------------------------
    \1\ If an offender is alleged to have committed offenses, some of 
which fall under the jurisdiction of the new disposition authority and 
some of which still fall under the jurisdiction of the commander, it is 
unclear under the new legislation how these offenders would be handled 
and what Constitutional issues would arise if an offender was subjected 
to multiple disciplinary proceedings for a single course of misconduct.
---------------------------------------------------------------------------
    Admiral DeRenzi. On April 20, 2012, the Secretary of Defense 
withheld initial disposition authority from all commanders within DOD 
who do not possess at least special court-martial convening authority 
and who are not in the grade of O-6 or higher with respect to the 
following alleged offenses: rape, in violation of Article 120 of the 
UCMJ; sexual assault, in violation of Article 120 of the UCMJ; forcible 
sodomy, in violation of Article 125 of the UCMJ; and all attempts to 
commit such offenses, in violation of Article 80 of the UCMJ. This 
withholding applies to all other alleged offenses arising from or 
relating to the same incidents(s), whether committed by the alleged 
perpetrator or the alleged victim of the rape, sexual assault, forcible 
sodomy, or the attempts thereof. The SA-IDA must review the 
investigation into the allegations and consult with a judge advocate 
before making any disposition decision.
    A detailed assessment of any specific proposal to change the 
current SA-IDA construct would be necessary to determine location and 
resource requirements.
    General Harding. There were 875 total courts-martial in the Air 
Force in calendar year 2012 (includes general, special and summary 
courts-martial). Of those, 330 would have gone to an O-6 JAG convening 
authority for disposition under the Military Justice Improvement Act. 
Given this number, we would require 7 disposition authorities and 26 
support personnel, for a total of 33. This would allow for the timely 
review of all cases forwarded to the office. Further, we would likely 
centralize the office in one location to capture efficiencies in 
staffing and allow for cases to be shifted from one authority to 
another if the situation required it.
    General Ary. The Marine Corps believes there is a substantial risk 
that the commander's ability to ensure good order and discipline will 
be severely limited if the commander is removed from the initial 
military justice disposition decision in certain cases. The following 
paragraphs detail the specific resourcing impact that the current 
proposal would have on military justice in the Marine Corps.
    The Marine Corps estimates that in the last 2 fiscal years, under 
the current proposal to remove the commander from the initial 
disposition of certain offenses, approximately 82 percent of GCMs and 
46 percent of SPCMs would require a disposition decision by the O-6 
judge advocate, (Felony IDA). The number of cases that would actually 
go to trial, however, does not fully represent the number of cases that 
would require Felony IDA involvement. On average, Marine Corps Legal 
Services Support Sections (LSSS) receive 2567 requests for legal 
services (RLS) per year that result in an average of 538 GCMs and 
SPCMs. That leaves 2029 RLSs that the LSSSs review but that do not end 
up at a GCM or SPCM. The Marine Corps does not have the ability to 
accurately count what offenses were initially listed in each RLS, but 
it is very likely that a significant number of those RLSs initially 
contained Felony IDA-level offenses that would have required Felony IDA 
case review and analysis.
    The Marine Corps would organize its new Felony IDA offices along a 
regional construct that aligns with our Legal Services Support Areas 
(LSSA--East, West, Pacific, and National Capital Region). To implement 
this requirement, the Marine Corps would place two Felony IDAs within 
each LSSA, one to handle cases within operational commands (i.e., 
Marine Expeditionary Force) and one to handle cases within the Marine 
Corps Installations Command (MCICOM). Two Felony IDAs are needed per 
region to comply with the requirement in the current proposal for the 
Felony IDA to not be in the chain of command of the victim or the 
accused. The total Marine Corps requirement, therefore, would be eight 
Felony IDAs to handle all cases involving an offense requiring a Felony 
IDA decision. The existing Regional Trial Counsel (RTC) offices' 
structure and personnel in each region would provide the Felony IDAs 
with investigation review, command liaison, and legal research support. 
Additionally, the Marine Corps would establish the newly required 
Office of the Chief of Staff on Courts-Martial at Headquarters Marine 
Corps. This office would serve as a back-up Felony IDA in cases where 
the regional Felony IDAs were conflicted out (e.g., a MEF accused and 
an MCICOM victim), and also serve as the GCMCA for deployed military 
justice cases. This office would be led by an experienced O-6 judge 
advocate and have a staff of four additional officers, four Legal 
Services Support Specialists, and one civilian.
    The Marine Corps would therefore require an increase of nine 
additional O-6 billets to meet the Felony IDA requirement. The current 
colonel LSSS officers-in-charge (OIC) O-6 judge advocates) would remain 
in place to supervise trial support for cases that do not require GCMCA 
action, legal assistance, civil law, and review. All GCMCA SJAs would 
also remain in place because commanders' requirements to have a legal 
advisor on many different legal issues remain.
    The mission placed on the RTC offices to support the Felony IDAs 
creates a supervisory void for the remaining trial counsel in each 
region that would handle the non-Felony IDA cases (case analysis/
preparation, liaison with the convening authority). The RTC is 
currently responsible for all training and supervision of these trial 
counsel. To fill this responsibility, the Marine Corps would need one 
O-4 judge advocate in each region (four total) to act as the OIC for 
the remaining trial counsel in the region, and one O-3 judge advocate 
per region (four total) to act as the OIC's deputy. Additionally, 
support staff would be needed for regional GCMCAs that would be 
appointed under the proposal. Altogether, the Marine Corps estimates 
the need for 49 additional billets to implement the Felony IDA concept.
    Admiral Kenney. Coast Guard judge advocates currently report to 
their local chain of command. Because the proposed legislation places 
judge advocates in a separate and independent entity outside the 
control of commanders, a detailed examination is required to thoroughly 
assess the required resources needed and potential geographic 
locations.
                                 ______
                                 
               Questions Submitted by Senator Mark Udall
                                reprisal
    9. Senator Udall. General Odierno, Admiral Greenert, General Amos, 
General Welsh, and Admiral Papp, many victims of sexual assault are 
afraid to come forward for fear of reprisal by lower level commanders 
or noncommissioned officers (NCO). Part of empowering officers with 
command responsibilities is to hold them accountable for maintaining 
good order and discipline. Reprisal or retaliation for victims that 
come forward is not good order and discipline. What steps need to be 
taken to truly hold members of a unit, their NCOs, and commanders 
accountable for retaliation against victims?
    General Odierno. Retaliation against victims is prohibited under 
the UCMJ and under Army regulations. Commanders must take a central 
role in both setting a command climate in which victims feel 
comfortable reporting and in holding soldiers accountable if they 
retaliate against a victim, including anyone in the chain of command. 
Commanders who fail to execute either of these responsibilities will 
also be held accountable. Since 2009, the Army has relieved 36 
commanders for failure to set an appropriate command climate, including 
issues related to sexual assault and harassment. As the Chief of Staff 
of the Army, I have made it clear to commanders that, when it comes to 
taking care of soldiers, the fight against sexual assault and sexual 
harassment is my number one priority.
    Admiral Greenert. There are eight independent means for victims to 
bring a complaint of reprisal and/or retaliation against any individual 
in their chain of command. Specifically, victims may file a reprisal 
and/or retaliation complaint with (1) the Naval Inspector General (IG), 
(2) DOD IG, (3) equal opportunity advisor, (4) law enforcement 
personnel, (5) a Member of Congress, or (6) submit a complaint against 
their commanding officer under Article 138 of the UCMJ, or (7) raise a 
complaint against any other superior in the chain of command under 
Article 1150 of U.S. Navy Regulations, or (8) make an anonymous 
complaint to an IG Hotline. Complaints brought by victims under any of 
these alternatives result in an independent investigation and 
subsequent review by flag officers in the chain of command. If the 
complaint is substantiated, appropriate administrative or disciplinary 
action will be taken.
    We have a number of means to hold personnel accountable for acts of 
retaliation against victims. Personnel accused of retaliation may be 
charged under several different UCMJ articles:

         Article 78 (accessory after the fact)
         Article 92 (failure to obey order or regulation)
         Article 93 (cruelty and maltreatment)
         Article 98 (Noncompliance with procedural rules)
         Article 107(false official statements)
         Article 117 (provoking speech or gestures)
         Article 133 (conduct unbecoming an officer and a 
        gentleman)
         Article 134 (general offense prejudicial to good order 
        and discipline)

    In these circumstances, numerous administrative actions will be 
available, as well.
    This is our issue to solve. Commanders are accountable for 
establishing command climates of dignity and respect, incorporating 
sexual assault prevention measures into their commands, providing 
responsive victim support, ensuring all unrestricted sexual assault 
allegations are promptly reported to NCIS and investigated, and holding 
offenders appropriately accountable. It is a clear and concise part of 
the ``Charge of Command.'' This covenant is acknowledged (by signature) 
by every commander of a Navy unit.
    We will continue to focus on providing commanders the appropriate 
tools to remain effective, accountable leaders, and hold these 
commanders accountable for the safety and well being of the sailors 
under their command.
    General Amos. A commander's responsibility for his or her command 
is absolute until the commander is relieved of responsibility by their 
chain of command. Ultimately, the most practical service-driven 
administrative tool for holding commanders accountable is the ability 
to relieve him or her from command due to a loss in confidence. This 
action is immediate and final.
    Commanders receiving a reprisal allegation against a member of his 
or her command shall fully investigate the matter and take appropriate 
administrative or punitive action under the UCMJ. There are also 
multiple reporting mechanisms that allow victims to report upon members 
in their chain of command. A marine may file an IG complaint, which may 
be anonymous to avoid the possibility of reprisal. In addition, the 
Military Whistleblower Protection Act (10 U.S.C. Sec. 1034) also 
protects victims from reprisal as a result of communications to 
Congress or the IG. In response to a complaint, the IG, would direct an 
investigation into the matter and recommend appropriate punitive or 
administrative action.
    Victims may additionally submit a Complaint of Wrongs under Article 
138 of the UCMJ, which requires redress if a commanding officer wronged 
a victim. If the commanding officer refuses to redress the wrong, the 
victim can forward the complaint to the next officer exercising general 
court-martial convening authority. Finally, if any retaliation 
negatively impacted the victim's records, the victim may petition the 
Board for Correction of Naval Records, which has authority to remove 
injustices from current and former victim records.
    General Welsh. The UCMJ provides tools for commanders to maintain 
good order and discipline and hold their airmen accountable. We expect 
our commanders to create a respectful and professional environment 
where every airman can maximize their potential to meet our mission 
requirements. When this does not occur, we hold commanders 
appropriately accountable, as we have done in the past and will 
continue to do so in the future. We do so utilizing a wide range of 
available administrative and disciplinary options.
    The statistical data provides a number of reasons that cause 
victims not to report, and we are pursuing lines of effort to address 
those concerns. From the 2012 Workplace & Gender Relations Survey of 
Active Duty Members, of the 67 percent of women who did not report, the 
reasons in 2012 were:

------------------------------------------------------------------------
                                                             Air Force
                 Reason                   DOD  (percent)     (percent)
------------------------------------------------------------------------
Did not want anyone to know.............             70              79
Felt uncomfortable making a report......             66              73
Did not think their report would be kept             51              NR
 confidential...........................
Did not think anything would be done....             50              NR
Thought they would be labeled a                      47              40
 troublemaker...........................
Were afraid of retaliation/reprisals                 47              NR
 from the person(s) who did it or from
 their friends..........................
Heard about negative experiences other               43             NR
 victims went through who reported their
 situation..............................
------------------------------------------------------------------------
NR = Not reportable due to low reliability as the number of responses
  were too low to provide a statistically relevant amount.

    Additionally, the Air Force contracted Gallup in 2010 to study the 
barriers to reporting and broke the data out by gender and type of 
criminal act to better target our efforts. The Air Force will conduct a 
follow-on survey in fiscal year 2014 to evaluate against the 2010 
baseline. Table 12 from the Findings from the 2010 Prevalence/Incidence 
Survey of Sexual Assault in the Air Force is included below:
       


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


      
    SARCs and Victim Advocates brief victims in their care to let them 
know immediately if the victims feel reprisal. Should this occur, the 
victim will be advised to file a complaint with the IG in person, on-
line, or through the 1-800 number. The IG will investigate and the 
parties will be held accountable. Additionally, as of February 2013, we 
have enhanced our SAPR training programs to include educating our 
Commanders and Senior Enlisted about biases and helping victims of 
trauma to heal. These lessons will help immensely with giving our 
leadership the tools they need during the turbulence of an assault in 
their unit and to increase the trust that the victims have in the 
entire process.
    Admiral Papp. The Military Whistleblower Protection Act, 10 U.S.C. 
Sec. 1034, prohibits any person from taking, withholding, or 
threatening any personnel action against a member of the Armed Forces 
as reprisal for making or preparing any protected communications. A 
protected communication is any lawful communication to a Member of 
Congress or an Inspector General, as well as any communication made to 
a person or organization designated under competent regulations to 
receive such communications, which a member of the Armed Forces 
reasonably believes reports a violation of law or regulation, including 
sexual assault, sexual harassment, unlawful discrimination, gross 
mismanagement, a gross waste of funds, an abuse of authority, or a 
substantial or specific danger to public health or safety.
    The Coast Guard Whistleblower Protection Regulation, 33 C.F.R. Part 
53, establishes policy and implements Title 10 U.S.C. Sec. 1034 to 
provide protections against reprisal to members of the Coast Guard.
    Reprisal occurs when a responsible management official takes or 
threatens to take an unfavorable personnel action, or withholds or 
threatens to withhold a favorable personnel action against a member of 
the Coast Guard because he or she made or was preparing to make a 
protected communication. A personnel action is any action taken against 
a member of the Coast Guard that affects or has the potential to affect 
that member's current position or career. Examples would include: 
performance evaluations, transfer or reassignment, changes to duties or 
responsibilities, disciplinary or other corrective actions, denial of 
reenlistment, decisions concerning awards, promotions or training, 
decisions concerning pay or benefits, referrals for mental health 
evaluations, access to classified material, and authorization to carry 
weapons.
    Retaliation for reporting any UCMJ offense, whether it's the 
alleged offender, NCOs or anyone else within the command will not be 
tolerated. Victims of sexual assault who experience retaliation are 
encouraged to report the retaliation to their supervisor, Chain of 
Command, Victim Advocate, SARC, or Special Victim Counsel.
    Members who retaliate against a victim of sexual assault may be 
held accountable in a number of ways.
    First, every military member--officer and enlisted--receives 
employee evaluations. To the extent the individual has failed to 
perform their expected duties--either negligently or willfully--that 
failure in performance or conduct will be captured in their evaluation. 
Members who take retaliatory action against a victim would receive poor 
evaluations, which have a range of negative career consequences such 
as: failure to promote, prohibitions on attending training, and failure 
to be selected for command cadre positions.
    Second, members in command may be relieved for cause.
    Third, in the case of officers, retaliation may be serious enough 
to warrant a Board of Inquiry to determine whether that officer should 
be separated from active duty. Similarly, enlisted personnel may be 
separated from the Service through an administrative board process.
    Last, if after a thorough investigation, there is probable cause to 
believe that a servicemember has committed an offense under the UCMJ, 
that member could face NJP or, if the offense is more serious, trial by 
court-martial.

                        opportunities for women
    10. Senator Udall. General Odierno, Admiral Greenert, General Amos, 
General Welsh, and Admiral Papp, do you believe that opening up all 
military occupations and specialties to women would help end the sexual 
assault crisis?
    General Odierno. The Army's approach to expanding positions and 
occupations to women includes reinforcement training on equal 
opportunity and sexual harassment and assault prevention and response. 
The feedback received from opening the maneuver battalion headquarters 
in nine Brigade Combat Teams indicates this training was effective in 
men and women treating each other with dignity and respect. The 
expansion of opportunities will enable our soldiers to develop and 
maintain professional relationships and, to the extent that this will 
contribute to the culture change the Army needs, it could potentially 
contribute to a reduction in sexual assaults.
    Admiral Greenert. The Navy supports the Secretary of Defense's 
decision to open all occupational specialties to women. Within the 
Navy, we have already opened 88 percent of our billets to women so it 
is very difficult to speculate that opening additional billets to women 
will, by itself, end sexual assault in our Navy. We believe addressing 
command climate, accompanied by specific actions directed at the safety 
and security of our sailors, will decrease the incidence of sexual 
assault in the Navy.
    General Amos. In 2012, the Marine Corps implemented its ``Exception 
to Policy (ETP).'' Since that time, approximately 463 job opportunities 
for female officers and staff NCOs have opened in previously closed 
units with open Military Occupational Specialties (ex. assignment of a 
female supply officer to a tank battalion). Since repeal of the 
Secretary of Defense policy excluding women from combat positions, the 
Marine Corps has continued to refer to these assignments as the ETP. 
Due to the success of the ETP program, the Marine Corps plans on 
expanding the ETP to include Marine NCOs at all closed units except for 
infantry and infantry-like units this fall. Since the implementation of 
the Marine Corps' ETP program, the Marine Corps has not received any 
correlative data that supports a relationship between opening 
previously closed units to women and its impact on the sexual assault 
statistics. It is too early to tell how changes in the assignment 
process will impact sexual assault rates in the Marine Corps.
    General Welsh. Sexual Assault is not based on military occupation. 
Sexual assault is a crime of power, disrespect and control. Women have 
been in combat for years. Seeing women in more combat jobs could cause 
an overt recognition of their equal skill sets, but I do not believe it 
alone will hasten cultural change. It is one piece of a multipronged 
approach to changing biases and preconceived notions.
    Admiral Papp. All military occupations and specialties within the 
Coast Guard are open to women.

    11. Senator Udall. General Odierno, Admiral Greenert, General Amos, 
General Welsh, and Admiral Papp, if women are allowed to serve in all 
occupations and in units currently closed to them, would that speed up 
the cultural change necessary to end this crisis?
    General Odierno. The Army's approach to expanding positions and 
occupations to women includes reinforcement training on equal 
opportunity and sexual harassment and assault prevention and response. 
The feedback received from opening the maneuver battalion headquarters 
in nine Brigade Combat Teams indicates this training was effective in 
men and women treating each other with dignity and respect. The 
expansion of opportunities will enable our soldiers to develop and 
maintain professional relationships and, to the extent that this will 
contribute to the culture change the Army needs, it could potentially 
contribute to a reduction in sexual assaults.
    Admiral Greenert. We currently have 88 percent of our billets open 
to women. I cannot predict if the additional 12 percent of billets will 
bring about a cultural change to reduce sexual assaults. We believe 
assuring a safe environment and command climate of dignity and respect, 
accompanied by specific actions directed at the safety and security of 
our sailors, will decrease the incidence of sexual assault in the Navy.
    General Amos. We do not have any data that suggests integrating 
women into previously closed units or Military Occupational Specialties 
has any effect on sexual assault rates in the Marine Corps. However, we 
are actively monitoring this transition for any relevant trends as we 
further integrate female marines into Military Occupational Specialties 
and units that were previously closed to them.
    However the following is the list of what we have done to speed up 
the changes necessary to fight sexual assault:

         Delivered over 25 CMC briefings to all officers and 
        staff NCOs across 3 continents
         Issued three formal letters to all marines addressing 
        with them sexual assault, leadership, and command climate 
        concerns of the Commandant of the Marine Corps
         Held a leadership summit for all commanding generals, 
        commanding officers, and senior enlisted advisors
         Conducted a 2-day SAPR General Officer Symposium
         Conducted a Sergeants Major Symposium with all Senior 
        Enlisted Advisors across the Corps
         Conducted standardized enterprise-level training for 
        all marines across the force
         Produced and distributed three videos on sexual 
        assault prevention by CMC and the Sergeant Major of the Marine 
        Corps
         Created a CMC command climate survey conducted within 
        30 days of a commandeer assuming command; this tool has already 
        proven effective in stamping out toxic leadership
         Published all courts-martial results on 
        www.marines.mil accessible to all marines in furtherance of 
        general deterrence
         Implemented ``Take a Stand'' bystander intervention 
        training, identified as a service-wide best practice
         Implemented Ethical Decision Scenarios to promote 
        healthy and candid small group conversations about prevention 
        at the smallest unit level
         Established Sexual Assault Response Teams (SART) 
        coordinated by the Marine Corps Installations SARC and made up 
        of the following personnel: NCIS investigator, CID military 
        police officer, SARC/Victim Advocate, Judge Advocate/Trial 
        Counsel, and a mental health services representative and Sexual 
        Assault Forensic Examiner.
         For those installations where an immediate SART 
        response capability is not available, the SART includes 
        community representatives, local law enforcement, rape crisis 
        centers, district attorneys, Federal task forces, existing 
        civilian SARTs, or nongovernmental organizations specializing 
        in sexual assault
         All SAPR personnel now receive 40 hours of focused 
        sexual assault advocacy training and go through an 
        accreditation process administered by the National Organization 
        for Victim Assistance (NOVA)
         Added 47 new full-time civilian SARCs and VAs and 
        nearly 1,000 collateral duty SARCs and Uniformed Victim 
        Advocates (UVAs)
         24/7 help-lines
         SECNAV has authorized the addition of 50 additional 
        NCIS agents
         Reorganization of the entire Marine Corps Judge 
        Advocate community to include establishment of Complex Trial 
        Teams supervised by Regional Trial Counsel (a Lieutenant 
        Colonel with significant litigation experience)
         Embedded CID agents and Highly Qualified Experts 
        (HQEs) within Regional Complex Trial Teams
         Continue to utilize the Defense Equal Opportunity 
        Management Organization Climate Survey (DEOCS)
         Implemented of the CMC Command Climate Survey taken 
        within 30 days of a commander assuming command

    General Welsh. Cultural change takes time. While there is no single 
cure, no magic bullet to fixing sexual assault, creating an environment 
of dignity and respect is imperative to improving the Air Force 
culture. Women have been in combat for years, and seeing women in more 
combat jobs could cause an overt recognition of their equal skill sets, 
but I do not believe it alone will hasten cultural change. It is one 
piece of a multipronged approach to changing biases and preconceived 
notions.
    Admiral Papp. Women officer and enlisted personnel are not 
restricted from any military occupation and/or from serving at any 
Coast Guard unit. However, there are some afloat units (cutters) that 
cannot accommodate women onboard because they do not have berthing 
areas that are segregated to allow for males and females to have the 
necessary privacy.

                          health care options
    12. Senator Udall. General Odierno, Admiral Greenert, General Amos, 
General Welsh, and Admiral Papp, the Government Accountability Office 
(GAO) issued a report of January 29, 2013, that found military health 
providers do not have a consistent understanding of the 
responsibilities associated with caring for sexual assault victims. The 
report also noted that many health care providers do not understand 
what restricted sexual assault reporting entails or what is expected of 
military health care providers in those cases. What has been done since 
the GAO report was issued to address this shortcoming and how will you 
commit to ensuring that all military health care providers have 
received this essential training?
    General Odierno. After the January 2013 GAO-13-182 report was 
published, the DOD released DOD Instruction (DODI) 6495.02, Sexual 
Assault Prevention and Response Program Procedures, 28 March 2013, 
which includes two medical enclosures addressing healthcare provider 
procedures and responsibilities. This policy clearly delineates 
restricted and unrestricted reporting options and the procedures 
associated with each option. DOD concurred with the GAO report 
recommendation to take steps to improve compliance with completing 
annual refresher training on sexual assault response and prevention.
    The U.S. Army Medical Command follows DOD policy guidance requiring 
all personnel assigned to the Military Treatment Facility (MTF), to 
include healthcare providers involved in the direct or indirect 
delivery health services or patient care, to receive initial and annual 
refresher Sexual Assault Prevention/Response Training. This training 
specifically explains the difference between ``Reporting Information 
for Restricted and Unrestricted Options.''
    The Army Medical Command is currently updating Regulation 40-36 (21 
Jan 2009), Medical Facility Management of Sexual Assault, to implement 
DODI 6495.02. This regulation will set the appropriate standards for 
how Army healthcare providers will respond to sexual assault patients. 
Sexual assault medical information is maintained in accordance with 
current Health Insurance Portability and Accountability Act (HIPAA) 
guidelines regardless of whether the victim elects Restricted or 
Unrestricted reporting. Improper disclosure of covered communications 
and improper release of medical information are prohibited and may 
result in disciplinary actions under the UCMJ, loss of credentials, or 
other adverse personnel or administrative actions.
    Admiral Greenert. The Navy is committed to providing quality 
medical care to victims of sexual assault. All Navy Military Treatment 
Facilities will have the sexual assault medical-forensic examination 
(SAFE) capability no later than September 30, 2013. This certification 
includes reporting procedures. Additionally, we have established and 
are enforcing training requirements for all healthcare providers that 
conduct SAFE exams. These training requirements are tracked on a weekly 
basis and include:

         A patient-centered medical-forensic examination 
        covering the patient interview, evidence collection and 
        analysis, survivor experiences, pre-trial preparation and court 
        testimony as a factual witness.
         Navy specific training, including restricted and 
        unrestricted reporting and the policy guidance on both.

    Finally, we conduct competency assessments for non-licensed 
independent practitioners (Registered Nurses and Independent Duty 
Corpsmen).
    General Amos. Navy personnel assigned to Marine Corps units are 
required to participate in annual SAPR training that emphasizes the 
differences between restricted and unrestricted reporting. General 
health care personnel receive initial and annual refresher training on 
the following essential training tasks: sexual assault response 
policies for DOD, DON, as well as DOD confidentiality policy rules and 
limitations; victim advocacy resources; medical treatment resources; 
sexual assault victim interview best practices; and overview of the 
sexual assault examination process. In addition, all health care 
personnel are required to familiarize themselves with local military 
treatment facility SAPR policies and procedures.
    General Welsh. The March 2013 update to Department of Defense 
Instruction (DODI) 6495.02 outlined new requirements for ``First 
Responder Training for Healthcare Personnel.'' This training is 
required in addition to all other DOD and Air Force-directed SAPR 
training. The training specifically targets the knowledge and skills 
required to provide appropriate care and support to sexual assault 
victims.
    ``First Responder Training for Healthcare Personnel'' is required 
by DODI 6495.02 on an annual basis and Healthcare Providers are among 
those required to take this training. The number of Air Force 
Healthcare Personnel who completed ``First Responder Training for 
Healthcare Personnel'' jumped from 6,000 in 2010 to greater than 24,000 
in 2012. The Air Force Medical Service will continue to capitalize on 
this successful training venue, developing revisions and placing 
additional emphasis on key areas of concern as those needs occur. 
Revisions to existing training have been submitted with a targeted 
release date of July 2013. The revision focuses on enhancing healthcare 
personnel understanding of critical areas of concern: the DODI 6495.02 
update heightened emphasis on Restricted Reports, the role of the SARC, 
victim privacy, and penalties for violation of patient confidentiality 
and privacy.
    In fiscal year 2014 the Air Force Medical Operations Agency Mental 
Health Division will fund the development of a computer-based training 
module to provide additional training for all Air Force mental health 
providers involved with the mental health treatment of survivors of 
sexual assault and trauma. The estimated completion date is February 1, 
2014.
    Air Force Instruction (AFI) 44-102, Medical Care Management, 
Chapter 16.5, is the governing AFI for SAPR clinical program 
management. Significant revisions regarding provider training were made 
to this Instruction in January 2012. Further revisions have also been 
submitted to expand the list of strategic tools that Healthcare 
Providers are required to be familiar with and requires those tools to 
be readily available to Healthcare Providers. The strategic tools 
referenced include: the U.S. Department of Justice, ``A National 
Protocol for Sexual Assault Medical Forensic Examinations, Adults/
Adolescents,'' Office on Violence Against Women, April 2013; DODI 
6495.02, SAPR Program Procedures, 28 March 2013; and AFI 36-6001, SAPR. 
Web links for these references are also provided in the instruction.
    With this amplified emphasis on critical training information, 
nodes and resources, Air Force Healthcare Personnel and Providers have 
the foundation to understand the complexities of providing healthcare 
to the sexual assault victim. To monitor progress and compliance of 
this program, many of the changes noted here are being added as Unit 
Effectiveness Inspection items that require Air Force Medical Treatment 
Facility Executive Staff oversight and will be monitored under the new 
Air Force Inspection System.
    Admiral Papp. Mandatory all hands training was conducted in April 
2013 at every unit (including medical facilities) to reinforce the 
policies and procedures regarding the report of sexual assault cases. 
In addition, the Coast Guard Director of Health and Safety Directorate 
(CG-11) tasked the Coast Guard Health, Safety, and Work Life Service 
Center (HSWL SC) with oversight of a mandatory sexual assault drill at 
every Coast Guard HSWL regional practice site during the month of 
April. Confirmation was received prior to the end of the month that all 
facilities had complied, as well as that they had completed the Coast 
Guard-wide General Mandatory Training (GMT) on the subject.
    The Coast Guard Operational Medical Division (CG-1121) and CG-111 
are currently in the process of updating Section 6.J. of the SAPR 
Program Instruction governing the role and responsibilities of Medical 
Officers (MO) and Health Care Providers (HCP) in the Coast Guard when 
caring for a victim of sexual assault. This revision will clarify the 
importance of qualified personnel performing forensic examinations, the 
duty of MO and HCP to fully inform the victim of Restricted vs. 
Unrestricted Reporting options, and the duty to provide care to the 
victim even if not performing the forensic examination (consistent with 
the principles of the Patient Centered Wellness Home).

                  sexual assault response coordinators
    13. Senator Udall. General Odierno, Admiral Greenert, General Amos, 
General Welsh, and Admiral Papp, would you consider making victim's 
advocates and SARCs competitive assignments selected by senior leaders 
though a board selection process?
    General Odierno. We are assessing all means to ensure we select the 
best people for these positions. On May 28, 2013, the Secretary of the 
Army directed the Assistant Secretary of the Army (Manpower and Reserve 
Affairs) to establish a department-wide working group ``to explore 
other options for ensuring the qualifications and suitability of, and 
incentivizing service as, a SARC or SAPR victim advocate to ensure that 
the best-qualified and most suitable individuals seek out and are 
selected for service in these positions.'' The group's recommendations 
will be provided to the Secretary of the Army not later than October 
31, 2013.
    Admiral Greenert. Navy has been very successful in applying a 
competitive selection process to hire highly-qualified civilians for 
full-time SARC and victim advocate positions, pursuant to section 584 
of Public Law 112-81 (National Defense Authorization Act (NDAA) for 
Fiscal Year 2012). In each case, a selection committee reviews 
applicant qualifications for each position, interviews the most highly-
qualified applicants and forwards a recommendation to the selecting 
official, who, in most cases, is the installation commanding officer or 
region commander. Command victim advocates who perform this as a 
collateral duty are selected by the unit commanding officer based on 
recommendations from his leadership team. These military personnel are 
trained and certified by the full-time civilian installation SARC and 
victim advocates.
    General Amos. The selection process we have in place is rigorous 
and designed to ensure that knowledgeable advocates are present 
everywhere throughout the Marine Corps. A central role of the commander 
includes selecting and appointing all SARCs and UVAs. The minimum 
qualifications for SARCs include a 4-year degree in behavioral health 
or social science and 4 years of experience that demonstrates acquired 
knowledge of behavioral health or social science equivalent.
    SAPR victim advocates are selected based on their proven ability to 
provide direct support to individuals or groups experiencing 
victimization, or an appropriate combination of education and 
experience that demonstrates possession of this knowledge. In 
particular, SAPR victim advocates must be able to utilize intervention 
strategies to stop victimization, reduce incidences of re-
victimization, and work effectively within a multi-disciplinary 
environment during crisis situations.
    Commanders are required to select UVAs from the rank of sergeant or 
higher. Candidates must not have any adverse fitness reports, history 
of sexual harassment or sexual assault allegations, courts-martial, 
drug-related incidents, domestic violence allegations, or referrals to 
the command-directed Family Advocacy Program. Additionally, UVA 
candidates must not have any NJPs or alcohol-related incidents within 
the last 3 years. All SAPR personnel must be credentialed by the 
National Organization of Victim Assistance, which requires the 
completion of a 40-hour specialized advocacy training program and 16 
hours of continuing education annually.
    General Welsh. Yes. The Air Force SAPR Office would consider making 
SARCs and victim advocates competitive assignments selected by senior 
leaders through a board selection process.
    The Air Force may either conduct a board selection process or the 
Personnel Officer Developmental Team may conduct the selection of 
military SARCs. The full-time civilian victim advocates and civilian 
SARCs are currently selected through the Air Force civilian hiring 
process. We can also explore options to modify this hiring process, as 
long as those changes are compliant with law and the Office of 
Personnel Management regulations.
    Admiral Papp. No, Coast Guard victim advocates are volunteers and 
are therefore personally motivated to assist sexual assault victims and 
help with prevention efforts. Coast Guard SARCs are competitively hired 
GS-12s and the majority are mental health providers.

    14. Senator Udall. General Odierno, Admiral Greenert, General Amos, 
General Welsh, and Admiral Papp, how can the personnel culture be 
changed so that these are highly sought after and competitive 
assignments?
    General Odierno. We are actively exploring this important personnel 
assignment issue. On May 28, 2013, the Secretary of the Army directed 
the assistant Secretary of the Army (Manpower & Reserve Affairs) to 
establish a department-wide working group ``to explore other options 
for ensuring the qualifications and suitability of, and incentivizing 
service as, a SARC or SAPR victim advocates to ensure that the best-
qualified and most suitable individuals seek out and are selected for 
service in these positions.'' The group's recommendations will be 
provided to the Secretary of the Army not later than October 31, 2013.
    Admiral Greenert. By opting to fill statutorily-required SARC and 
victim advocates positions with civilian employees, we are identifying 
the most highly-qualified applicants who have a genuine desire to make 
a difference in this area, and who are fully focused on SAPR, without 
distractions from competing military priorities. Significant emphasis 
is placed on the importance of these positions in the Navy SAPR 
program, and we have designed a career path to foster progression from 
victim advocates to installation SARC to regional SARC, as assigned 
personnel gain experience and training. Our goal is to establish and 
foster a dedicated and highly qualified cadre of SAPR Program 
professionals who we can retain by providing opportunities for 
training, experience, and growth through a rewarding career path and 
upward mobility.
    General Amos. Commanders play the largest role in preventing sexual 
assault and holding offenders accountable and our command screening 
process is highly competitive. Our Commanders understand that if he or 
she fails to gain the trust and confidence of his or her marines in 
garrison; he or she will be unsuccessful in leading them in combat. 
Marine commanders also recognize that command climates where sexual 
assault is tolerated have no place in today's Marine Corps. If a 
commander fails to adequately address sexual assault in his unit, he or 
she will be relieved of their command.
    The requirements for assignment as a SARC are strict and intended 
to result in the assignment of the most qualified personnel. Two types 
of SARC assignments are available, Installation SARCs and Command 
SARCs, the most prestigious of which is the Installation SARC. 
Installation commanders are required to appoint an Installation SARC 
and Installation SARCs shall be full-time civilian employees who must 
undergo a highly selective and competitive hiring process. Command 
SARCs will be uniformed officers of the rank of O-4/Major and above or 
Chief Warrant Officer 3 through Chief Warrant Officer 5. Therefore the 
Command SARCs have served between 10 and 30 years in the Marine Corps. 
To put this in perspective, a typical Marine Corps combat arms 
battalion has only two majors assigned to the unit--the executive 
officer and the operational officer--who serve as second and third in 
command of the unit. As a result, SARCs are only assigned to highly 
qualified and trained civilian personnel at the installations or to a 
representative of the command deck, all highly sought after and 
competitive assignments.
    General Welsh. The personnel culture can be enhanced by making this 
a competitive and nominative process for military officers and 
civilians, while emphasizing to commanders that they ``push'' their 
most outstanding officers for these SAPR jobs. Only officers with the 
maturity, demeanor, and compassion to lead this vitally important 
mission should be considered. Officers selected for SARC positions will 
be expected to quickly develop the knowledge and skills we expect from 
our applicants for civilian SARC positions. Civilians should have 
knowledge of laws, regulations, executive orders, and a wide range of 
social work principles and have the ability to recommend and/or 
implement solutions for improvements. In addition, advertising the 
nomination criteria across the Air Force via commander's calls, base 
newspapers, Air Force Times, civilian personnel and USAJobs will help 
keep leadership informed on the opportunities to serve in SAPR 
positions. The key to recruitment is command emphasis and desirable 
follow-on assignments that provide upward development and acknowledge 
this career field.
    Admiral Papp. These positions are already highly sought after and 
competitive.
                                 ______
                                 
              Questions Submitted by Senator Joe Donnelly
                 sexual assault and suicide prevention
    15. Senator Donnelly. General Dempsey, General Odierno, Admiral 
Greenert, General Amos, General Welsh, and Admiral Papp, sexual assault 
has been found to increase the risk for death by suicide by as much as 
14 times for female victims compared to women who have never been 
assaulted, even after controlling for psychiatric diagnoses present 
prior to the assault. According to results of a new study by 
researchers at the University of Utah, military personnel have 
experienced increased risk of suicidal thoughts or actions if they were 
the victims of physical or violent sexual assault as adults. How does 
the current system respond to the psychological needs of a sexual 
assault victim and are there specific suicide prevention trainings and/
or discussions with a victim?
    General Dempsey. Our immediate concern is to ensure victims of 
sexual assault receive timely access to comprehensive medical and 
psychological services. Medical practitioners are required to assess 
the sexual assault victim's need for behavioral health services and 
make provisions for a referral, if necessary or requested by the 
victim. If it is determined that a victim is at risk for suicide, 
appropriate care will be provided and prevention/intervention measures 
will be implemented. The Department is working hard to encourage 
victims of sexual assault to get the treatment and counseling they need 
or desire. Victims are offered trauma counseling and receive assistance 
to help during the healing and recovery process. Behavioral health 
services remain available to all servicemembers at any time of need.
    General Odierno. Sexual assault patients are given priority in 
military medical treatment facilities and treated as emergency cases 
regardless of whether physical injuries are evident. Patients' needs 
are assessed for immediate medical or mental health intervention 
regardless of their behavior because when severely traumatized, sexual 
assault patients may appear to be calm, indifferent, jocular, angry, 
emotionally distraught or even uncooperative or hostile towards those 
who are trying to help. By ensuring sexual assault victims receive 
sensitive care and support and are not revictimized as a result of 
reporting the incident, many of the factors that lead to suicidal 
ideation may be averted. Soldiers are entitled to continuing no-cost 
medical care, to include behavioral health care.
    Admiral Greenert. The mental health care of sexual assault victims 
is a priority within the Navy. When a sexual assault is reported, the 
command Victim Advocate is notified immediately and care is provided 
with the same priority as other emergency health care. Victim Advocates 
are in contact with trained mental health providers who are available 
at all Navy Medicine sites to treat trauma-related psychological health 
issues. Treatment is available on an outpatient basis for any sexual 
assault victim who desires such care.
    Trained mental health providers are also located within our primary 
care settings as part of the Navy's Behavioral Health Integration 
Program (BHIP). This program is available at 26 Navy Medicine primary 
care clinics today and will be available at all 69 primary care clinics 
with patient populations greater than 3,000 by the end of fiscal year 
2016. By placing trained mental health providers in a primary care 
setting, BHIP helps remove much of the stigma that is associated with 
mental health care, which can be particularly important for victims of 
sexual assault.
    We recognize that servicemembers who have experienced traumatic 
events are at heightened risk for behavioral health problems, and may, 
in turn, be at a higher risk for suicide. In light of this, Navy 
Medicine policies provide detailed guidance for the evaluation and 
disposition of all patients presenting with suicidal ideation, 
regardless of the type of event that may have precipitated these 
suicidal thoughts. We seek to ensure that all potentially suicidal 
servicemembers are identified and encouraged to seek care. This is done 
by training health care providers in the screening and assessment of 
suicidal patients, and through the application of counter-stigma and 
bystander intervention practices that encourage all patients with 
suicidal thoughts to seek help.
    General Amos. SAPR personnel are required to inform sexual assault 
victims of all available medical, mental health, and counseling 
resources. If an urgent concern for the victim's well-being is 
identified, SAPR personnel will immediately notify medical services. 
Additionally, support is available via our online DSTRESS Line or our 
toll-free line. These resources are available to marines, attached 
sailors, and their family members, providing ``one of their own'' to 
speak with about whatever challenges they may be facing, including 
thoughts of suicide.
    The Military Healthcare System provides a full spectrum of care for 
sexual assault victims. If a victim goes to an emergency room for care, 
either the emergency physician assesses the need for immediate mental 
health consultation (e.g. thoughts of suicide) or the patient requests 
care. If mental health support is not needed immediately, the victim is 
advised before discharge from the emergency room that mental health 
support is available. This support ranges from support provided by the 
victim's primary care provider, with consultation from a mental health 
specialist, through outpatient care, to inpatient hospitalization as 
needed. Suicide is addressed as part of an overall course of assessment 
and treatment is tailored to each patient on a case by case basis. 
Suicide prevention awareness and prevention training is integrated 
throughout the Marine Corps.
    Additionally we have implemented the requirement for Commander's to 
complete an 8-day SAPR Brief for use as a comprehensive checklist to 
ensure victims receive support services within the first 8 days 
following the initial report. The 8-day SAPR Brief is forwarded to the 
first O-6 in the chain of command or next General Officer in the chain 
of command if the Commander is an O-6. The 8-day SAPR brief is an 
enforcement mechanism that holds Commanders accountability for caring 
for victims of sexual assault. As part of the checklist, Commanders 
ensure victims receive medical treatment, access to counseling and 
Chaplain services, and assignment to a Uniformed Victim Advocate or 
Victim Advocate. The SAPR 8-day brief is recognized as a DOD best 
practice, and serves as an additional tool in suicide prevention.
    General Welsh. The Air Force responds to the psychological needs of 
sexual assault victims through medical care, victim advocates, and 
SARCs. SARCs are trained to recognize and work with people who have 
experienced trauma. SARCs also receive specific training to work with 
victims of sexual assault. The training includes education on 
individual and cumulative risk factors for suicide and identifying both 
indirect and direct suicidal warnings signs. In addition, sexual 
assault victims are assigned a victim advocate who receives Air Force-
mandated annual training on suicide prevention. The Air Force does not 
have specific suicide prevention training for victims, but offers 
sexual assault victims mental health services. For those victims who 
seek mental health services, mental health providers follow The Air 
Force Guide to Managing Suicidal Behavior when assessing for suicide 
risk. Additionally, the Air Force requires annual training on the Air 
Force Guide to Managing Suicidal Behavior in accordance with Air Force 
Instruction 90-505. Some airmen may not choose to report an incident of 
sexual assault; however, commanders and supervisors have a duty and 
responsibility to monitor all airmen in their units for signs of 
suicidal tendencies and behavior.
    All Air Force personnel receive annual suicide prevention training, 
including victims of sexual assault, SARCs and victim advocates. Annual 
suicide prevention training is carefully crafted to: (1) educate on 
suicide risk factors and warning signs using the Ask, Care, Escort 
(ACE) model; (2) provide an overview of available resources; (3) 
attempt to reduce barriers to help seeking; and (4) promote responsible 
help-seeking behaviors.
    Admiral Papp. Coast Guard SARCs are also trained as Employee 
Assistance Program Coordinators (EAPC) and are fully aware of all the 
services available through both the Coast Guard SAPR Program and EAP to 
assist with the psychological needs of victims.

      administrative separation and accrual of veterans' benefits
    16. Senator Donnelly. General Dempsey, S. 548, the Military Sexual 
Assault Prevention Act of 2013, requires the administrative separation 
of any member of the military who is convicted of rape, sexual assault, 
forcible sodomy, or an attempt thereof. Do you support the requirement 
to discharge any servicemember convicted of sexual assault?
    General Dempsey. Yes, I support requiring administrative discharge 
for individuals convicted of the most serious sexual offenses, 
including rape, sexual assault forcible sodomy, or attempts to commit 
those offenses. All Services currently mandate that individuals who 
have been convicted of serious offenses, including sexual assault, and 
who have not already received a punitive discharge, be processed for 
administrative discharge.

    17. Senator Donnelly. General Dempsey, if a servicemember is 
administratively separated from service, what veterans' benefits 
accrue?
    General Dempsey. A servicemember's veterans' benefits are based on 
the characterization of the administrative discharge he or she 
receives. There are three characterizations: honorable, general (under 
honorable conditions), and under other than honorable conditions. Both 
current laws and Department of Veterans Affairs regulations restrict 
the most important veterans' benefits to those servicemembers who 
receive an honorable or general discharge. However, each individual 
agency, State, or awarding entity oversees its own application of these 
benefits.

    18. Senator Donnelly. General Dempsey, in your opinion, should a 
servicemember discharged for a sexual offense be allowed veterans' 
benefits?
    General Dempsey. If a servicemember receives a punitive discharge 
at court-martial, or a less-than-honorable administrative discharge, 
stemming from a sexual assault, that individual will only receive those 
benefits allowed by law. The current law Reserves the most important 
veterans' benefits to those personnel who receive an honorable or 
general discharge.
                                 ______
                                 
             Questions Submitted by Senator Mazie K. Hirono
                    sexual assaults in the military
    19. Senator Hirono. General Dempsey, General Odierno, Admiral 
Greenert, General Amos, General Welsh, and Admiral Papp, DOD has been 
trying to work on the issue of sexual assault for a significant period 
of time. DOD established the SAPR program in 2005. I am interested in 
your thoughts as to why we are still where we are today in terms of 
this terrible crime in the military. What have been the biggest hurdles 
and what has to be changed to stamp out this terrible crime which hurts 
our military in so many ways and what is most important in terms of 
fixing it as we move forward?
    General Dempsey. Since 2005, while we have taken deliberate steps 
to better understand, identify, and reduce predatory and high-risk 
behaviors which can lead to sexual assaults, our efforts have focused 
more specifically on victim response. Our renewed commitment, as 
published in the Joint Strategic Direction to the Force in May 2012, 
emphasizes a balanced approach. Our biggest hurdles continue to be: (1) 
our ability to preserve a culture of trust and respect consistent with 
our core values; and (2) to create and maintain an environment where 
those predatory and high-risk behaviors that precede sexual assault are 
not tolerated. As leaders, we must not tolerate a climate that could be 
perceived as complacent towards sexual harassment or assault. When 
confronted with a case of assault, we must be aggressive in our pursuit 
of justice to hold offenders appropriately accountable and continue to 
build a support system. In order to hold offenders and leaders at every 
level appropriately accountable, victims must report inappropriate 
sexual behavior. We all must identify ways to improve our ability to 
prevent and respond to sexual assault.
    General Odierno. I think the biggest hurdle has been the fact that 
we have been an Army at war for almost 12 years, with all the stress 
and strain that entails. Sexual assault is a national problem, and the 
Army is not immune from the larger culture. However, because ours is an 
institution based on discipline and trust, the Army has a special 
responsibility to make sure we get this right. Sexual harassment and 
sexual assault are antithetical to our Army values--what has to change 
is a culture that has been evolving over time, but too slowly. We must 
and will create a positive command climate built on trust and respect 
in which every person is able to thrive and achieve their full 
potential. Leaders must take action to establish and sustain standards 
at every level and take steps to create a positive command climate. 
Every soldier must believe that when an incident of sexual assault or 
harassment is reported, that the chain of command will respond quickly 
to protect the victim and hold the perpetrators accountable.
    Admiral Greenert. Our most significant hurdle is sustaining the 
changes needed to eliminate sexual assault within the force while 
bringing in approximately 40,000 new sailors each year. Every 4 years, 
we effectively replace half of our workforce. The result is a constant 
cycle of indoctrinating new sailors into a system of core values that 
may or may not reflect the values they brought with them upon entering 
the Service.
    The most important and effective mechanism for sustaining change 
with this constant influx of new personnel is creating climates of 
professionalism, respect, and core values at the individual command 
level. At the command level, we reach the individual sailor and are 
most effective at changing the way they view themselves and other 
sailors. At the individual unit level where sailors work, and often 
live, we create climates of dignity and respect that prevent sexual 
assaults, respond when prevention fails, support victims and ensure 
prosecution and accountability of offenders. An important element is 
overcoming the stigma of reporting and the perception it could affect 
the individual sailor's reputation and standing within command unit. 
Commanding officers are at the front line of this work and we hold them 
accountable for this change.
    The cumulative effect of individual command climate changes is an 
institutional climate change. We work to sustain institutional change 
through training and education programs, taking specific actions 
directed at the safety and security of our sailors, ensuring 
appropriate accountability for the perpetrators, and providing strong 
support for the victims. Our efforts at the institutional level are 
designed to reinforce the work done at the individual command level to 
promote professionalism, respect, core values and trust--and in which 
every sailor exercises the personal courage to intervene when others 
are engaging in, or are subjected to, inappropriate behaviors of any 
kind.
    General Amos. One of the largest hurdles to tackling the sexual 
assault crisis within DOD has been under-reporting as a result of the 
mistrust between victims and their chain of command. Since launching 
our June 2012 SAPR Campaign Plan, the Marine Corps has experienced an 
increase in unrestricted to restricted reporting conversion rates, and 
a 31 percent increase in our reporting rates. We interpret this rise in 
reporting to reflect an increased trust of victims of sexual assault 
that their leadership will do the right thing, provide the care they 
need, and hold offenders accountable.
    The sexual assault training conducted across the Marine Corps 
encourages a step up and step in approach to preventing sexual assault, 
and focuses on bystander intervention; both approaches shifting the 
focus from victim prevention to community prevention.
    Another hurdle we have faced is raising the priority of victim care 
within a system of competing interests. In response, we have 
professionalized the level of care we provide our victims. All SAPR 
personnel are required to complete 40 hours of sexual assault advocacy 
training through an accreditation process administered by the NOVA. We 
have hired 47 full-time positions in support of nearly 100 highly-
trained, full-time civilian SARCs and victim advocates and nearly 1,000 
collateral-duty SARCs and UVAs. SAPR personnel are handpicked by 
commanding officers; Command SARCs are required to be officers (major 
or above or CWO3-CWO5) or their civilian equivalent. Installation SARCs 
are full-time civilian employees.
    Our greatest asset to overcoming any hurdles is commander 
involvement and constructive dialogue. Engaged leadership remains the 
key to changing our culture and our commitment to combat sexual assault 
is unrelenting.
    General Welsh. When the SAPR program stood up in 2005 the main 
focus was to have our airmen understand that sexual assault in DOD 
ranges from touching to completed rape, and our available reporting 
options and services. From 2005 to 2010 we were victim/response focused 
and wanted to ensure our airmen understood there were services 
available. In 2010, we began bystander intervention which taught our 
forces how to intervene and recognize a potentially dangerous 
situation. It took until 2012 to have all 448,000 of our military and 
civilians trained. These initiatives have helped us immeasurably to 
enable victims to heal but I agree the time has come for a new 
approach. The biggest hurdles in SAPR are fully understanding the root 
cause for sexual assault, providing an environment of trust in which 
the victim feels safe to come forward, and changing the culture and 
climate. All airmen should treat each other with dignity and respect 
and have absolute trust in one another. If a sexual crime of any nature 
occurs, the victim should feel entirely safe to come forward and allow 
the opportunity for the perpetrator to be held accountable.
    In addition, we need to instill in our airman the skills of how to 
recognize a predator. Further, we need to hold those responsible for 
sexual assault accountable for their conduct. To accomplish this we 
have hired more Office of Special Investigation agents to investigate 
and work with forensic evidence, increased special victims counsel to 
help victims, and trained prosecutors in working with victims of 
trauma. Finally, we have invested resources to help us determine and 
assess sexual assault/harassment in the Air Force. In the fiscal year 
2014, we will roll out the follow-on to the Gallup survey conducted in 
2010. This new survey will help us determine if sexual assault 
prevention programs are making a positive impact.
    Admiral Papp. Sexual assault is a terrible crime across society, 
and as a microcosm of society, it is an issue that we all are dealing 
with. The military must be the catalyst for change and we must 
eliminate sexual assault from our ranks. It takes time to change a 
culture and societal attitudes and biases, and that is not an excuse 
but a reality. As leaders and members of the armed forces, we must 
eliminate sexual assault from our midst, but we know there is no 
``silver bullet'; to solve this prevalent problem. We have stood up a 
Military Campaign Office to work with our SAPR Program, as well as with 
the DOD, to continue reviewing, strategizing, training, and looking at 
all angles to develop an effective strategy that will succeed.

    20. Senator Hirono. General Dempsey, General Odierno, Admiral 
Greenert, General Amos, General Welsh, and Admiral Papp, please 
describe the sexual assault prevention training that takes place for 
new recruits to include basic training for new enlistees as well as for 
the Service Academies and other accessions.
    General Dempsey. The Department requires the Military Services to 
conduct sexual assault training during all accession (officer and 
enlisted) programs and at the Service Academies. The training includes 
the entire cycle of prevention, reporting, response, and 
accountability. The Services are expanding SAPR training to include 
Recruit Sustainment Programs prior to arrival at Basic Training. I 
defer to Service Chiefs to provide additional details on their Service 
programs.
    General Odierno. To educate new soldiers in an attention-getting 
and intriguing manner the Army developed a set of 10 ``Sex Rules'' 
which break down the elements of sexual harassment and sexual assault 
and define them in simple, relatable terms. By linking each Sex Rule to 
an Army Value, this focused sexual assault prevention training helps 
establish the social behavior expected of all soldiers.
    The new Initial Entry Training (IET) also includes 90 minutes of 
facilitated instruction and incorporates a live, two-person, audience 
interactive ``Sex Signals'' production. This program includes skits 
dealing with dating, consent, rape, body language, gender relations, 
alcohol use and intervention.
    Basic Officer Leader Course-Accession (BOLC-A) and the U.S. 
Military Academy (USMA) curriculum includes 3 hours of facilitated 
instruction, supplemented with Sexual Harassment/Assault Response and 
Prevention (SHARP) web-based training, ``Sex Rules'' messaging, subject 
matter experts, hip pocket reinforcement training, and Sex Signals 
during summer camp (ROTC) and during fall semester at USMA.
    Basic Officer Leadership Course-Branch (BOLC-B) curriculum is 
similar to our IET training (90 minutes of facilitated training, sex 
rules for reinforcement training, and sex signals).
    Admiral Greenert. Recruit Training Command. Prospective recruits in 
transit to Recruit Training Command (RTC) receive SAPR training, which 
covers sexual harassment, staff-to-student contact, and the 
responsibility of reporting inappropriate behavior. During the second 
week of recruit training, recruits receive additional training, during 
which they are provided the definition of sexual assault, unrestricted 
and restricted reporting options, the role of SARCs and victim 
advocates, contact information for SAPR personnel and guidance on 
acceptable behavior.
    Officer Candidate School. Students at Officer Candidate School 
(OCS) receive similar training during the first week of OCS, but also 
attend SAPR-Leadership (SAPR-L) training, which emphasizes the role of 
leaders in preventing sexual assault and creating an appropriate 
command climate.
    U.S. Naval Academy. U.S. Naval Academy (USNA) midshipmen attend 
Sexual Harassment and Assault Prevention Education, a 30-hour tiered 
program, aligned with the 4-year USNA leadership curriculum, which 
utilizes a small-group discussion format focused on broadening sexual 
harassment and assault awareness, and fostering each midshipman's role 
as an active bystander. Fourth-class midshipmen (freshmen) receive 
initial SAPR indoctrination within 14 days of arrival at USNA followed 
by a refresher brief from the USNA SAPR staff. Content includes 
discussions on sexual harassment, sexual assault and consent, 
restricted and unrestricted reporting, and an overview of available 
support personnel (e.g., SARC, Victim Advocates, chaplains). Each 
midshipman receives a SAPR wallet card containing phone numbers, 
reporting options, and USNA SAPRO website information.
    NROTC, SSO, STA-21, and MECEP. Navy Reserve Officer Training Corps 
(NROC) and Strategic Sealift Officer (SSO) fall and spring first-year 
orientation programs include SAPR-Fleet (SAPR-F) training at the 
beginning of each academic year. New students who do not attend 
freshman orientation receive SAPR-F training within 14 days of arrival. 
SAPR-F training is repeated for sophomore and junior students in all 
programs within the first 60 days of each academic year. Students in 
their final year attend leadership-level (SAPR-L) training within 90 
days of the start of the academic year. Each unit tailors SAPR-F and 
SAPR-L training to include campus-specific information and guidance.
    General Amos. SAPR training has been incorporated into the Delayed 
Entry Program, Recruit Training, and Military Occupational Specialty 
(MOS) schools. Prior to attending either Recruit Training or Officer 
Candidates School (OCS), all selectees receive newly developed values-
based training. The training focuses on the ``whole of character'' and 
ethical behavior expected of marines; instilling a refined and 
sustained understanding of our core values of Honor, Courage, and 
Commitment. The training curriculum reinforces our foundational 
principles; that the success of the Marine Corps relies within the 
character of all marines and their ability to make sound ethical 
decisions in any situation. The training includes scenarios that 
address sexual assault, sexual harassment, racial discrimination, 
alcohol abuse, and hazing. Upon completion of the training, recruits, 
and candidates are required to sign a Statement of Understanding 
affirming their transformation and acceptance of the Marine Corps 
ethos.
    Recruits and candidates receive sexual assault training within the 
first 14 days of both Recruit Training and Officer Candidates School 
(OCS). This training communicates the nature of sexual assault in the 
military environment and includes the entire cycle of prevention, 
reporting, response, and accountability procedures. The program 
emphasizes all available reporting options, including the limitations 
of each option, and methods of prevention, such as bystander 
intervention. Later in the training, senior drill instructors discuss 
sexual assault with all recruits. The total training is 7\1/2\ hours, 
administered during several classes.
    General Welsh. Basic trainees are briefed by their group commander 
on the first day of basic military training (BMT) regarding sexual 
assault prevention as well as how they should expect to be treated. 
This training includes the definition of sexual assault, identifies who 
is available to help and how to contact them, the ``Rights of an 
Airman,'' what constitutes restricted and unrestricted reporting, and 
what assistance is available to them if they were assaulted before 
entering the military. This is the same information presented to 
existing members of the Air Force, but in a format digestible to new 
airmen. Squadron commanders also brief the first week and courses are 
taught by SAPR professional trainers for a total of 6 hours of training 
by week 4.
    The Air Force Academy has a program dedicated to teaching the 
cadets over the 4 year period; cadets receive the same training taught 
at BMT and continue with social skill training, peer mentoring and life 
skills; they have a total of 10 hours of training over the 4 years. 
Reserve Officers' Training Corps and Officer Training School follow the 
same training path as BMT. Our goal is to standardize officer training 
across all accession sources as much as is practical.
    Admiral Papp. New recruits at the Coast Guard Training Center in 
Cape May, NJ, receive online training upon arrival to ensure they 
understand the reporting options and who the SARCs and victim advocates 
are. Recruits also receive specific SAPR training during their 7 week 
basic training course. Cadets at the Coast Guard Academy (CGA) receive 
specialized training that is spread out during their 4 years, and there 
is also a cadet group titled ``Cadets Against Sexual Assault.'' These 
cadets are specifically trained to assist their peers as well as help 
the CGA SARC with prevention efforts.

    21. Senator Hirono. General Dempsey, General Odierno, Admiral 
Greenert, General Amos, General Welsh, and Admiral Papp, after the 
initial training, how often is it repeated as these servicemembers 
progress in their careers?
    General Dempsey. Training is conducted annually and is mandatory 
for all servicemembers. Other SAPR training required for servicemembers 
includes pre- and post-deployment training, Commander and senior 
enlisted training prior to assuming command, and SAPR training at all 
levels of professional military education (PME). I defer to Service 
Chiefs to provide additional details on their Service programs.
    General Odierno. The SHARP Life-Cycle training component consists 
of comprehensive education and training across two of the Army's 
overlapping domains of training (institutional and operational), and 
includes mandatory self-study).
    SHARP institutional training includes progressive and sequential 
education and training conducted at each of the five levels of PME and 
Civilian Education System (CES): Level 1 is Initial entry training; 
Level 2 includes Basic Officer Leader--Branch, Warrant Officer Basic 
Course, Warrior Leader Course for NCO, and CES Basic; Level 3 includes 
Captain Career Course, Warrant Officer Advanced Course, Advance Course 
for NCOs, and CES Intermediate; Level 4 includes Intermediate Leader 
Education, Warrant Officer Staff Course, Senior Leader Course for NCOs, 
and CES Advanced; and Level 5 includes Army War College, Senior Officer 
Legal Orientation Course, Warrant Officer Senior Staff Course, Sergeant 
Major Course for NCOs, and CES Continuing Education for Senior Leader. 
Functional (specialized) courses include: Pre-Command Course (PCC) for 
brigade and battalion command teams; Company Commander/First Sergeant 
Course; Recruiter, Advanced Individual Training, Platoon Sergeant, and 
Drill Sergeant Courses; and CES Action Officer Course, Supervisor 
Development Course, and Managers Development Course.
    Operational training includes installation orientation, pre- and 
post-deployment, and an annual mandatory training requirement for all 
Army units/organizations. Part 1 comprises of three hours of 
facilitated instruction using video and scenario-based exercises to 
reinforce learning. Commands are encouraged to invite sexual assault 
Survivors that are willing to share their story into annual training to 
help reinforce the serious issue and how it affects soldiers and 
families. Part 2 of the mandatory annual training requirement is self-
study distributed learning delivered via the Army Learning Management 
System.
    Operational training also includes the use of the ``Invisible War'' 
video, which is used as part of Officer and NCO Professional 
Development. The film is a great training tool for taking a hard look 
at our system, for understanding the long-term consequences for victims 
of sexual assault, and for understanding the public perceptions of 
sexual assault in the military. Additionally, some units currently 
enter into an independent contact with Catharsis Productions to have 
the 90-minute live, two-person, audience interactive ``Sex Signals'' 
presentation held for their units. This training is currently part of 
Initial Entry Training [Basic Combat Training, Basic Officer Leadership 
Course-Accession (ROTC), Basic Officer Leadership Course-A (New Second 
Lieutenants), and the U.S. Military Academy]. This training consist of 
skits dealing with dating, consent, rape and other associated topics 
such as body language, gender relations, alcohol use and intervention. 
The SHARP Office is also looking into providing a 90-minute 
presentation called ``After Burner'' to all operational units in fiscal 
year 2014. This is an extension of the ``Sex Signals'' presentation.
    One of the primary goals of SHARP training is to facilitate sexual 
assault prevention through awareness and education about situations 
that may set the conditions for incidents of sexual assault--including 
gender relations and alcohol use/abuse. Army SHARP training is intended 
to influence soldier behavior. The SHARP training is designed to 
communicate and model the desired skill sets, and provide both soldiers 
and civilians an opportunity to practice the skill sets.
    This is supplemented by monthly discussions between the Chief of 
Staff of the Army and/or Vice Chief of Staff of the Army with brigade/
battalion commanders at the Pre-Command Course. Additionally, periodic 
commanders' conferences are conducted with all two- and three-star 
commanders to ensure everyone understands programs, roles, 
responsibilities, and implementation of specific supporting actions by 
commanders.
    Admiral Greenert. After the SAPR training delivered in their 
initial training, all sailors continue to receive SAPR training every 
year. In addition, all sailors participate in Sexual Assault Awareness 
Month initiatives every April. This year, all sailors also participated 
in a Secretary of Defense-directed 2-hour SAPR stand-down.
    We have integrated SAPR modules into all courses for enlisted 
advancement from E-4 to E-7, in curriculum at the Senior Enlisted 
Academy, as well as at Command Leadership School.
    We are in the process of integrating SAPR modules into our Navy 
Leader Development Continuum. This will ensure that SAPR training is 
linked to leadership training throughout every sailor and officer's 
career. We expect this integration to be complete by October 1, 2013.
    General Amos. Marine Corps regulations mandate that all marines are 
required to complete sexual assault prevention and awareness annual 
training to ensure a thorough understanding of the nature of sexual 
assault in the military environment and the entire cycle of prevention, 
reporting, response, and accountability. Annual training requirements 
are being customized in a manner specific to grade. All promoted 
Corporals and Sergeants, for example, must complete our ``Take A 
Stand'' training program to fulfill their annual training requirement, 
emphasizing the importance of bystander intervention in their new 
leadership roles. Currently, a new bystander intervention training 
program is being customized for junior marines (E-1 to E-3) who are our 
highest-risk population. Additionally, as part of the 2012 SAPR 
Campaign Plan, the Marine Corps implemented revised SAPR training 
programs for: Delayed Entry Programs, Recruit Depots, Marine Combat 
Training, MOS schools, Enlisted PME, Officer PME schools, and pre-
deployment environments. SAPR training for prospective commanders and 
senior enlisted leaders has also been updated to meet all core 
competencies and set learning objectives as defined by the Office of 
the Secretary of Defense, with further training direction from the 
Commandant.
    General Welsh. SAPR training began annually in 2005. In 2007, a 
workshop with 25 subject matter experts on sexual assault identified 
bystander intervention as the most effective prevention effort within 
the military culture and environment. To that end, Air Force prevention 
initiatives for the last 2 years focused on Bystander Intervention 
Training (BIT). Mandatory Air Force-wide BIT began in January 2010 and 
was completed in September 2012. Because of the depth and length of 
BIT, the Air Force requested and received a DOD waiver to substitute 
the BIT training for the otherwise mandated annual training. Over 
448,000 airmen (regular, Reserve, and Guard) and civilian supervisors 
of military were trained. All airman (regular, Reserve, and Guard, and 
civilians) will be briefed, face-to-face, by the base SARC annually.
    In addition to annual mandatory training, currently officers may 
receive additional training in PME (155 minutes), Pre-command (170 
minutes), and Executive Summits (1,050 minutes). Our enlisted force 
receives additional training in PME (260 minutes) and duty specific 
training for First Sergeants, Chief Master Sergeants, and Military 
Training Instructors (60 minutes). We are working to create a new 
cradle-to-grave training plan to increase knowledge and awareness of 
all Air Force members.
    Admiral Papp. SAPR training is an annual mandatory requirement for 
all Coast Guard personnel. There are several career checkpoints that 
afford further SAPR training, as well as involvement in additional SAPR 
trainings, such as the events that occur during Sexual Assault 
Awareness Month (SAAM) each April.

    22. Senator Hirono. General Dempsey, General Odierno, Admiral 
Greenert, General Amos, General Welsh, and Admiral Papp, is it the same 
training or is it modified by where people are in their careers?
    General Dempsey. SAPR training takes place at multiple levels: 
department-wide baseline training, accession training, PME programs, 
deployment training, and commander and senior enlisted training. The 
training takes into consideration the needs of the audience and their 
increased responsibilities at senior ranks. I defer to Service Chiefs 
to provide additional details on their Service programs.
    General Odierno. The level of SHARP training is different depending 
on where a soldier or civilian is in his or her level of professional 
development; however, the base of the training is the same.
    The operational SHARP Annual Unit Refresher Training (URT) is the 
same training presented to all soldiers, civilians, and contractors who 
deploy in support of military operations. This facilitated training 
includes leader and soldier videos. The training addresses high-risk 
behaviors and models skill-sets to effectively intervene to stop 
potential sexual assaults.
    Admiral Greenert. As enlisted sailors and officers progress through 
their careers, expectations of leadership skills, roles and 
responsibilities progress. SAPR training is divided into two versions 
for junior personnel (``SAPR-Fleet'') and leaders in grades E-7 and 
above (SAPR-Leader''). However, training in moral character and the 
outcomes we expect from it are modified in leadership training segments 
delivered throughout enlisted and officer career paths, commensurate 
with their rank and increasing leadership responsibilities. For 
example, we expect our junior sailors to respect others and have 
integrity. At more senior levels, we expect our enlisted leaders and 
junior officers to foster ethical behavior in others. And at the 
highest levels, we expect our commanding officers to act as a moral 
arbiter for their commands and become exemplars for the Navy in terms 
of character.
    General Amos. SAPR is tailored across a marine's career to include 
annual, pre-deployment, post-deployment, PME schools, and pre-command/
senior enlisted leader SAPR training. SAPR training is also required 
during recruit training and at military occupational specialty (MOS) 
schools. To ensure SAPR training is current and up to date, we 
continually review and update our curriculum to ensure it is 
appropriate to the individual's rank and commensurate with his or her 
level of responsibility. SAPR training is an annual requirement for all 
marines.
    Currently all newly promoted corporals and sergeants are required 
to complete ``Take a Stand'' training to meet their annual training 
requirement in order to reinforce the tenants of leadership and 
bystander intervention. In order to maintain the integrity of SAPR 
training, only Uniformed Victim Advocates, certified by a master 
training team led by an Installation SARC (full-time civilian position) 
are permitted to provide ``Take a Stand'' training to NCOs. The course 
is taught in a small group discussion format in order to promote 
discussion and reduce the stigma associated with sexual assault. Units 
are required to report completion of all annual SAPR training via 
Marine-On-Line training module or the Marine Corps Total Force System 
(MCTFS). Additionally, the Marine Corps has produced a deterrence 
training video, titled ``Lost Honor,'' where convicted sexual assault 
offenders describe the lost honor they experienced through their 
conviction for sexual offenses in the military justice system. This 
video has been provided to commanding generals as supplemental training 
and is also available on-line to all marines.
    General Welsh. When SAPR training began annually in 2005, it was 
``one-size-fits-all'' aimed at providing a general understanding of the 
new program and its components. In 2007, a workshop with 25 SMEs on 
sexual assault identified bystander intervention as the most effective 
prevention effort within the military culture and environment. To that 
end, Air Force prevention initiatives for the last 2 years focused on 
Bystander Intervention Training (BIT). Unlike previous SAPR training, 
BIT had breakout groups based on gender and rank. This allowed for 
training tailored to a particular audience and/or peer group. Mandatory 
AF-wide BIT began in January 2010 and was completed in September 2012. 
Over 448,000 airmen (Regular, Reserve, and Guard) and civilian 
supervisors of military were trained.
    Beginning in 2012, SAPR training was revamped again to ensure 
quality, face to face scenario-based training at entry level and 
accessions, re-emphasized at PME courses, and on an annual basis. 
Commander and Senior Enlisted training has been greatly enhanced to 
address leadership responsibilities and challenges. Training is 
structured so leaders have the ability to understand SAPR from a base 
leadership perspective; it is specialized to recognize the nuances of 
victim care from initial reporting to case disposition. Additionally, 
First Sergeant training was expanded to include investigation and 
prosecution familiarity, hands-on victim assistance scenarios, and 
identifying/overcoming biases. Furthermore, we are working to mirror 
all officer accessions training to the comprehensive U.S. Air Force 
Academy model. Finally, enlisted accessions are trained from A to Z on 
the SAPR basics, focusing primarily on reporting options and bystander 
intervention. We plan to further augment and re-emphasize training in 
technical school. Our goal is to create a cradle-to-grave learning 
process for all airmen and continuously build on the foundation they 
receive at initial entry through all levels of development focused on 
dignity and respect.
    Admiral Papp. All personnel receive annual mandatory SAPR training, 
and additional trainings are being developed and modified for specific 
career levels.

                              retaliation
    23. Senator Hirono. General Dempsey, General Odierno, Admiral 
Greenert, General Amos, General Welsh, and Admiral Papp, what happens 
in your Service if a superior makes an unwanted sexual proposition 
toward a subordinate who rejects and is later subject to retaliation?
    General Dempsey. Mission effectiveness and good order and 
discipline are bettered through establishing an environment where 
servicemembers are free from harassment. Each Service, DOD Component, 
and the Joint Staff have military equal opportunity programs designed 
to promote the equal opportunity and treatment of its members. In the 
situation you describe above, a servicemember has the option to file 
either informal or formal discrimination complaints with their equal 
opportunity offices. Each equal opportunity office is staffed with 
advisors who provide counseling, information, referral, and other 
assistance to members who have experienced unlawful discrimination. 
When a complaint of sexual harassment is substantiated, the individual 
who committed the offensive act may be subject to disciplinary action. 
Anyone in a supervisory or management position who is aware of sexual 
harassment and fails to take action may also be disciplined. 
Additionally, a member who believes they have been subject to 
retaliation may seek the assistance of their IG.
    General Odierno. Sexual advances by a superior to a subordinate, 
whether wanted or unwanted, are punishable under the UCMJ as 
fraternization (Art. 134), maltreatment of subordinates (Art. 93), 
violation of regulation (Art. 92), conduct unbecoming an officer (Art. 
133), or conduct prejudicial to good order and discipline (Art. 134) 
depending on the individual facts and circumstances. Any retaliatory 
actions taken by a superior against a subordinate as a result of a 
rejection of a sexual proposition or advance are also punishable under 
the UCMJ as maltreatment, violation of regulations, conduct unbecoming, 
or conduct prejudicial to good order and discipline. The 
criminalization of sexual harassment and retaliation is an important 
tool for military commanders to establish climates of dignity and 
respect that is not available in civilian jurisdictions.
    Members of the Military who reject unwanted sexual propositions 
from a superior member in their chain of command (or from others), who 
report it to higher superiors in the chain of command or to others 
designed to receive such reports, and who are then retaliated against, 
are protected from such retaliation by section 1034 of title 10, 
U.S.C., the Military Whistleblower Protection Act. The provisions of 
this act are further reinforced in DOD Directive 7050.06, Military 
Whistleblower Protection; Army Regulation (AR) 20-1, IG Activities and 
Procedures; and AR 600-20, Army Command Policy. Essentially, the 
statute and implementing regulations prohibit taking any unfavorable 
personnel actions in reprisal for a protected communications. Protected 
communications are the disclosures of information that one reasonably 
believes constitutes evidence of a violation of law or regulation and 
would include allegations of unwanted sexual assaults, propositions, or 
similar sexual misconduct.
    The statutory guidance and implementing regulations require all 
Service IGs to notify the DOD IG of reprisal complaints in accordance 
with established procedures. Although the DOD IG has oversight over all 
such reprisal complaints, most are referred to the particular Service 
IG at the headquarters level for investigation. The Office of the 
Department of the Army IG decides which office is in the best position 
to gather the evidence and address the facts, normally the local IG.
    If a local IG does conduct the investigation, there are protections 
built into the system. An IG may not investigate his or her supervisors 
and, where conflicts of interest exist, a higher level IG retains the 
case for investigation. Furthermore, all of the investigations are 
reviewed by the appropriate IG assigned to the appropriate Army Command 
(or equivalent organization). That review is then forwarded back up to 
a whistleblower reprisal investigations specialist at the Department of 
the Army level, and then on to the DOD IG for final review.
    The approved results of an IG whistleblower reprisal investigation 
are turned over to the chain of command for disciplinary action as 
appropriate against any person substantiated for retaliation. 
Furthermore, the complainant has direct and priority access to the Army 
Board for Correction of Military Records, which retains broad, sweeping 
authority to correct any error or injustices in the complainant's 
record on behalf of the Secretary of the Army.
    Admiral Greenert. Sexual harassment, reprisal, and retaliation have 
no place in the Navy. Current regulations provide victims with several 
ways to bring a complaint of sexual harassment against anyone in their 
chain of command. Victims may file a complaint of sexual harassment, 
reprisal, or retaliation with an equal opportunity advisor, law 
enforcement personnel, the Naval IG, the DOD IG, or a Member of 
Congress; or submit an anonymous complaint via the IG Hotline, submit a 
complaint against their commanding officer under Article 138 of the 
UCMJ, or raise a complaint against any other superior in the chain of 
command under Article 1150 of U.S. Navy Regulations. Complaints brought 
by victims under any of these alternatives result in an independent 
investigation and subsequent review by senior officers in the chain of 
command. If the complaint is substantiated, appropriate administrative 
or disciplinary action will be taken.
    We have a number of means to hold personnel accountable for acts of 
retaliation against victims. Personnel accused of retaliation may be 
charged under several different UCMJ articles:

         Article 78 (accessory after the fact)
         Article 92 (failure to obey order or regulation)
         Article 93 (cruelty and maltreatment)
         Article 98 (Noncompliance with procedural rules)
         Article 107(false official statements)
         Article 117 (provoking speech or gestures)
         Article 133 (conduct unbecoming an officer and a 
        gentleman)
         Article 134 (general offense prejudicial to good order 
        and discipline)

    In these circumstances, numerous administrative actions will be 
available, as well.
    General Amos. Commanders receiving a reprisal allegation against a 
leader in his or her command are required to investigate the matter and 
take appropriate administrative or punitive action under the UCMJ, to 
include court-martial, NJP, and/or administrative separation 
processing. If a member chooses to file a report against a superior in 
their chain of command, there are multiple reporting mechanisms are 
available to victims. A marine may file an IG complaint, for example, 
which may be anonymous to avoid the possibility of reprisal. The 
Military Whistleblower Protection Act (10 U.S.C. Sec. 1034) also 
protects victims from reprisal as a result of communications to 
Congress or the IG. In response to a complaint, the IG, would direct an 
investigation into the matter and recommend appropriate punitive or 
administrative action. Victims may additionally submit a Complaint of 
Wrongs under Article 138 of the UCMJ, which requires redress if a 
commanding officer wronged a victim. If the commanding officer refuses 
to redress the wrong, the victim can forward the complaint to the next 
officer exercising general court-martial convening authority. Finally, 
if any retaliation negatively impacted the victim's records, the victim 
may petition the Board for Correction of Naval Records, which has 
authority under to remove injustices from current and former victim 
records without.
    General Welsh. Although sexual harassment generally falls under the 
purview of the Equal Opportunity(EO) office, depending on the 
circumstances, a criminal investigation may be conducted or the IG may 
be involved. The combination of the unwanted sexual proposition and 
retaliation based on the rejection may be covered under the UCMJ. Once 
a sexual harassment complaint is investigated, the findings are 
provided to the subject's commander for appropriate disciplinary 
action.
    The notification to EO office of the unwanted sexual proposition is 
considered a protected communication under 10 USC 1034 and any 
retaliatory actions linked to the protected communication would be 
investigated by the IG as an allegation of reprisal. The results of the 
reprisal investigation would be presented to the subject's commander 
for appropriate disciplinary action.
    For reference, an unwanted sexual proposition would be considered 
sexual harassment under the DOD definition: ``a form of sex 
discrimination that involves unwelcome sexual advances, requests for 
sexual favors, and other verbal or physical conduct of a sexual nature 
when:

         Submission to such conduct is made either explicitly 
        or implicitly a term or condition of a person's job, pay, or 
        career, or
        Submission to or rejection of such conduct by a person is used 
        as a basis for career or employment decisions affecting that 
        person, or
        Such conduct has the purpose or effect of unreasonably 
        interfering with an individual's work performance or creates an 
        intimidating, hostile, or offensive working environment.''

    Admiral Papp. If this situation were to occur, Commandant's 
Instruction M5350.4C, Civil Rights Manual directs all parties in what 
actions must be taken, by whom, and by when. Some of the relevant 
requirements follow:

         If the aggrieved person reports the incident directly 
        to the Civil Rights Directorate, the director will conduct an 
        investigation in accordance with the EEO/EO complaint process.
         The victim can report the alleged action to anyone in 
        the chain of command.
         If the alleged offender is the commanding officers and 
        officers-in-charge (COs/OICs), the victim can report the action 
        to the next higher authority in the chain of command.
         COs/OICs must conduct an investigation into the matter 
        within 30 days.
         COs/OICs must report the incident to the Civil Rights 
        Directorate (which is in a separate reporting chain from local 
        commands).
         COs/OICs must inform the aggrieved party of his/her 
        right to pursue an EEO/EO complaint.
         Matters that violate UCMJ or Federal law must be 
        reported to CGISs.
         While the investigation proceeds, the Coast Guard 
        directs involved units to take proactive steps to prevent 
        retaliation, such as separating the parties.
         Any findings of reprisal are subject to penalties as 
        explained in Question #6 above.

    Civil Rights Service Providers (CRSPs) provide guidance and 
assistance to commands, employees, and military members to ensure that 
all harassment complaints are addressed and handled in a timely manner. 
CRSPs are stationed throughout the Nation. Their names and contact 
information, along with procedures for entering the complaint process, 
are posted conspicuously at all Coast Guard units, to assist personnel 
who wish to raise claims of retaliation. As of 2010, CRSPs report up to 
the Commandant through the Civil Rights Directorate, not to local 
commands. The decisional authority for military retaliation claims is, 
therefore, neither the accused individual's nor the complainant's 
supervisory chain; claims are decided by the Commandant of the Coast 
Guard with appeal rights to the Secretary of Homeland Security.

    24. Senator Hirono. General Dempsey, General Odierno, Admiral 
Greenert, General Amos, General Welsh, and Admiral Papp, what 
protections are in place to ensure that the subordinate's career is not 
affected by retaliatory acts by the superior in the military chain of 
command?
    General Dempsey. Servicemembers are protected under law and DOD 
policy from retaliatory personnel actions based on protected 
communications. 10 U.S.C. Sec. 1034 prohibits taking (or threatening to 
take) an unfavorable personnel action, or withholding (or threatening 
to withhold) a favorable personnel action, as a reprisal against a 
member of the armed forces for making or preparing protected 
communications. Protected communications include complaints that a 
servicemember reasonably believes constitutes evidence of violations of 
laws or regulations, including allegations of sexual assault and/or 
sexual harassment. Retaliatory action may also constitute a violation 
of the Articles 92, 133, or 134 of the UCMJ. A servicemember may report 
retaliation to their Service Inspectors General, the IG of a DOD 
component, or to the DOD IG.
    General Odierno. Servicemembers are protected from reprisal and 
retaliation under the provisions of section 1034 of title 10, U.S.C., 
the Military Whistleblower Protection Act (MWPA), and DOD and Army 
implementing authorities. These authorities prohibit taking or 
threatening an unfavorable action or withholding or threatening to 
withhold a favorable personnel action in reprisal for making a 
protected communication.
    A detailed investigation is required to determine whether an 
adverse command action was appropriate given a soldier's performance, 
conduct, or behavior--or was motivated by reprisal. During an 
investigation, the command retains full authority and responsibility to 
take appropriate actions with respect to the individuals involved in 
the inquiry--to include the complainant--as necessary to maintain good 
order and discipline and unit readiness.
    In practice, that means a soldier may have received an unfavorable 
action in the short-term; but if the inquiry determines the action was 
taken in reprisal, the complainant has priority access to the Army 
Board for Correction of Military Records (ABCMR). The ABCMR retains 
broad, sweeping authority to correct the record for errors or 
injustices on behalf of the Secretary of the Army.
    When reprisal is found, the soldier receives a redacted copy of the 
completed report of investigation along with the appropriate forms to 
initiate and facilitate an appeal through the ABCMR. Under the 
provisions of the MWPA, soldiers receive direct and priority access to 
and review from the ABCMR for actions resulting from a substantiated 
reprisal allegation. In the last several years, the ABCMR and the Army 
Inspector General Agency have worked closely to ensure soldiers receive 
the information necessary to make them whole and correct the soldiers' 
records for any inappropriate personnel actions--to the greatest extent 
possible.
    Admiral Greenert. Existing law and regulations afford significant 
protections and recourse with respect to alleged retaliatory acts by 
superiors in the military chain of command.
    The Military Whistleblower Protection Act, 10 U.S.C. Sec. 1034, 
prohibits personnel actions being taken as reprisal against a 
servicemember for making or preparing to make a ``protected 
communication'' to a Member of Congress, an IG, a member of a DOD law 
enforcement organization, or any person in the chain of command. Such 
retaliation is also specifically prohibited in the Department of the 
Navy by regulation, violation of which is punishable under Article 92 
of the UCMJ.
    Complaints of reprisal are required to be investigated under the 
supervision and oversight of the Naval IG, and servicemembers who make 
reprisal complaints are to be specifically informed of the 
investigative process and their associated rights. Where allegations of 
reprisal are substantiated, the servicemember has the statutory right 
to apply for relief with the cognizant Board for the Correction of 
Military Records.
    Article 138 of the UCMJ and Article 1150 of U.S. Navy Regulations 
further permit a sailor to petition for redress of wrongs committed by 
a commanding or superior officer to the cognizant general court-martial 
convening authority. All such complaints, associated investigations, 
and actions by the general court-martial convening authority are 
reviewed by the Office of the Judge Advocate General.
    A servicemember may also file a formal complaint involving sexual 
harassment or unlawful discrimination under the Navy's Equal 
Opportunity Program, for which there is a coordinator at every command. 
As with Article 138 and 1150 complaints, the associated investigation 
is reviewed by the general court-martial convening authority and the 
Office of the Judge Advocate General.
    Navy Regulations, Article 1155, further provide that no person may 
restrict any member of the armed forces in communicating with a Member 
of Congress in the member's personal or private capacity.
    General Amos. There are also multiple reporting mechanisms that 
allow victims to report upon members in their chain of command. A 
marine may file an IG complaint, for example, which may be anonymous to 
avoid the possibility of reprisal. The Military Whistleblower 
Protection Act (10 U.S.C. Sec. 1034) also protects victims from 
reprisal as a result of communications to Congress or the IG. In 
response to a complaint, the IG, would direct an investigation into the 
matter and recommend appropriate punitive or administrative action. 
Victims may additionally submit a Complaint of Wrongs under Article 138 
of the UCMJ, which requires redress if a commanding officer wronged a 
victim. If the commanding officer refuses to redress the wrong, the 
victim can forward the complaint to the next officer exercising general 
court-martial convening authority. Finally, if any retaliation 
negatively impacted the victim's records, the victim may petition the 
Board for Correction of Naval Records, which has authority under to 
remove injustices from current and former victim records without.
    General Welsh. The Office of the IG and 10 U.S.C. Sec. 1034 are in 
place to help protect the subordinate's career from retaliatory acts by 
the superior in the military chain of command. 10 U.S.C. Sec. 1034 
specifically prohibits retaliatory personnel actions following 
complaints of wrongdoing to a Member of Congress; an IG; a member of 
the DOD audit, inspection, investigation, or law enforcement 
organization; or any person in the chain of command, and any person or 
organization designated to receive such communications. The Equal 
Opportunity office would be one such organization. If the retaliatory 
actions are linked to the protected communication, 10 U.S.C. Sec. 1034 
would call for the IG to investigate the allegation of reprisal. The 
results of the reprisal investigation would be presented to the 
subject's commander for appropriate disciplinary action.
    For substantiated allegations of reprisal against a military 
member, the Air Force Board for Corrections of Military Records will be 
notified. They will review the investigation and have the authority to 
correct any action taken against the member in reprisal.
    Admiral Papp. Subordinates are protected from retaliation in 
several ways. As discussed above, many penalties exist to deter 
retaliatory acts. Federal and military codes, regulations, and policies 
(as summarized below) protect personnel from retaliation.

         Military personnel may be punished for illegal 
        discrimination, harassment, and retaliation under Article 93 of 
        the UCMJ-Cruelty and Maltreatment. The maximum punishment under 
        this Article is a dishonorable discharge, forfeiture of all pay 
        and allowance, and confinement for 1 year.
         Article 138 of the UCMJ affords rights to redress 
        grievances against actions of commanding officers. In addition, 
        a member may petition or present any grievance to any Member of 
        Congress (10 U.S.C. Sec. 1034).
         The Notification and Federal Employee 
        Antidiscrimination and Retaliation Act (No FEAR Act) of 2002 
        protects civilian employees against reprisal and allows them to 
        report offenses directly to the Office of Special Counsel.
         29 C.P.R. Part Sec. 1614 contains provisions to 
        protect employees against reprisal and make the aggrieved party 
        ``whole.'' While this regulation applies to civilian employees, 
        through policy issuance, the Coast Guard affords military 
        members the same protections to the extent possible under the 
        UCMJ.

                         command accountability
    25. Senator Hirono. General Dempsey, General Odierno, Admiral 
Greenert, General Amos, General Welsh, and Admiral Papp, does your 
Service annotate in a commander's personnel records the data about the 
numbers of sexual assaults which were reported, investigated, 
prosecuted, dismissed, et cetera, during the term of their command? If 
not, I am interested in your thoughts on adding this information and 
maybe command climate information as part of the whole picture of the 
candidates as they are considered for future promotions and 
assignments.
    General Dempsey. Getting accurate data on sex-related crimes is a 
challenge in the military, as it is in society. Low numbers may be a 
good thing, or low numbers may mask a real problem. I'm more confident 
right now assessing our processes--how we take reports, investigate 
them, refer cases to trial and prosecute--than I am in our statistical 
data. On process, the Service Chiefs have relieved commanders for loss 
of confidence in their leadership related to handling sexual assault. 
So I'd say we are already going further than recording performance for 
future consideration--we are acting immediately when we see something 
amiss. That said, I support efforts to better define the breadth and 
depth of sexual assault in the ranks statistically.
    The commander sets the tone for his or her command. That is why 
assessing command climate is essential in evaluating the success and 
potential of our leaders, and we capture it in our evaluations in 
several ways. Recently, I also initiated 360 degree evaluations on our 
general and flag officers, which should provide a more holistic view of 
a leader's potential.
    General Odierno. The Army does not annotate the personnel records 
of commanders with data about the number of sexual assaults that were 
reported, investigated, prosecuted, dismissed, or otherwise adjudicated 
during the term of their command. However, the officer evaluation 
report does contain a field concerning dignity, fairness, 
consideration, and equal opportunity. A ``negative'' response on this 
portion automatically results in mandatory comments on the evaluation 
to substantiate the rating.
    Additionally, the Army is in the process of changing the way 
command climate information is distributed. Command climate surveys are 
required within the officer's initial 30 days for the Active component 
and 90 days for the Reserves; again at 6 months for the Active 
component and 9 months for the Reserves; and annually thereafter for 
all components.
    Command climate findings will be given to the officer's next higher 
level of leadership. Seniors commander will use these as a mentoring 
tool to coach and teach their subordinates. This information will also 
provide insight into how the individual officer affects the unit during 
his or her tenure.
    Admiral Greenert. Under current policy governing the Navy 
performance evaluation system, there is no requirement to annotate in a 
commander's fitness report or personnel record data about the numbers 
of sexual assaults that were reported, investigated, prosecuted, and/or 
dismissed during the term of their command.
    We hold commanders accountable for their command climate, their 
efforts to maintain a safe work environment of dignity and respect, and 
the good order and discipline of their commands. Today, we do this by 
requiring commanders to assess their organizational climate at regular 
intervals, while requiring those with multiple commands under their 
leadership to monitor the climates of subordinate commands. We evaluate 
our commanders (and all officers) in their regular fitness reports 
(performance evaluations used for determination of advancement) in 
three areas: Command Climate/Equal Opportunity, Leadership and in 
written summary, where documentation of poor command climates would be 
listed. We hold our commanders responsible and accountable when they do 
not meet acceptable standards.
    IG investigations, and fully adjudicated administrative 
investigations conducted pursuant to requirements of the Manual of the 
Judge Advocate General (JAGMAN), which substantiate adverse 
information, such as command climate or leadership failures, can be 
placed in a commander's official record and will be considered by 
promotion selection boards and in selecting officers for future 
assignments.
    We believe the current system adequately addresses the issue; 
however, we routinely review the Navy fitness report system to ensure 
it provides a comprehensive officer assessment consistent with the 
prevailing needs of the Navy.
    General Amos. The Marine Corps does not annotate in a commander's 
personnel records the data about the numbers of sexual assault which 
were reported, investigated, prosecuted, dismissed, et cetera, during 
the term of their command. However, the Marine Corps uses two separate 
Command Climate surveys to measure a commander's effectiveness in 
maintaining the trust and confidence of their marines. The DEOCS is 
created and distributed through the Marine Corps' cooperation with the 
Defense Equal Opportunity Management Institute (DEOMI). All marines 
take the DEOCS survey and its results are consolidated and provided to 
the commander and the next higher commander in the chain of command. In 
addition, I directed the implementation of a new Command Climate 
Survey. This Command Climate Survey is required within 30 days of a 
commander assuming command and again at the 1 year mark. The results 
are required to be briefed to the first O-6 or O-7 in the commander's 
chain of command as a way of holding commander accountable.
    General Welsh. No, the Air Force does not currently record this 
data relating to sexual assaults in commander's personnel records. 
Establishing a command climate of dignity and respect is a priority for 
Air Force commanders, and incorporating an appropriate, standardized, 
SAPR posture is essential to defining a successful Air Force leader. 
The Air Force is working with DOD to evaluate the methods used to 
assess the performance of military commanders, including command 
climate studies and other responsibility standards.
    Admiral Papp. Data about the numbers of sexual assaults which were 
reported, investigated, prosecuted, dismissed, etc., during the term of 
commander's tour is not consistently annotated in the records or 
evaluations of officer (commanding officer) or enlisted (officer-in-
charge) personnel. Indicators of command climate deficiencies are 
monitored and addressed. If substantiated, a Relief For Cause (RFC) 
could result. Corrective action resulting from command climate issues 
become part of the member's permanent record and are considered in 
subsequent promotion, advancement, and assignment panels.
                                 ______
                                 
             Questions Submitted by Senator Saxby Chambliss
            first female sailors on uss dwight d. eisenhower
    26. Senator Chambliss. Admiral Greenert, during the period when 
female sailors first started to serve aboard U.S. Navy aircraft 
carriers, in particular the USS Dwight D. Eisenhower in 1994, there was 
a high rate of pregnancies and inappropriate sexual episodes. What 
percentage of female sailors became pregnant during the first 
deployment of the USS Dwight D. Eisenhower with women serving aboard?
    Admiral Greenert. This information is not available as the Navy did 
not officially track operational pregnancies prior to 2007.

    27. Senator Chambliss. Admiral Greenert, due to the pregnancies 
aboard the USS Dwight D. Eisenhower, was there an investigation as to 
which pregnancies were from consensual or possible unwanted sexual 
acts? Provide the results of the investigation if an investigation was 
conducted.
    Admiral Greenert. An investigation would have been initiated if a 
sailor reported a sexual assault. In 1988, the NCIS began maintaining 
records of sexual assault investigations (records are maintained for 50 
years). In review of these archives, we found no reported sexual 
assaults during the first deployment of USS Eisenhower with women on 
board (October 1994-March 1995). Additionally, there were no delayed 
reports of sexual assaults upon the ship's return from deployment.
                                 ______
                                 
             Questions Submitted by Senator Roger F. Wicker
        sale of sexually explicit material at military exchanges
    28. Senator Wicker. General Dempsey, Section 343 of the NDAA for 
Fiscal Year 1997 prohibits the sale of material deemed to be sexually 
explicit in nature at military exchanges. This legislation grants the 
Secretary of Defense authority to determine which products and 
materials qualify as sexually explicit and which do not. The lack of a 
precise definition for the term sexually explicit in the NDAA for 
Fiscal Year 1997 has resulted in the availability of materials at 
military exchanges that many would consider as vulgar, misogynistic, 
and degrading. Multiple attempts by Congress to rectify this issue 
legislatively over the ensuing 15 years have been unsuccessful. The 
prominent theme of this hearing, one that I believe was stressed 
individually by each of the Joint Chiefs, was the need to continue to 
shape the culture of the military into one in which all servicemembers 
are treated with respect and dignity. Do you believe that making 
sexually explicit material available for sale at military exchanges is 
sending the wrong message to servicemembers and may be contributing to 
the problem of military sexual assault?
    General Dempsey. DOD is committed to upholding both the Military 
Honor and Decency Act and First Amendment protections of publishers and 
readers, which the men and women in our Armed Forces defend every day. 
The Department does not sell sexually explicit materials as defined by 
the 1997 NDAA in the military exchanges or other property under the 
jurisdiction of DOD. Secretary Hagel recently directed DOD component 
heads to conduct a comprehensive visual inspection of all DOD 
workplaces to ensure all DOD facilities, including military exchanges 
are free of materials that create a degrading or offensive work 
environment.

    29. Senator Wicker. General Dempsey, do you believe that the 
sexually explicit materials that are currently being sold on base may 
be contributing to a military culture that tolerates acts of sexual 
aggression?
    General Dempsey. Section 2495b of title 10, U.S.C. defines 
``sexually explicit material.'' The Department, in close coordination 
with the General Counsel's Office, applies the law's definition to 
determine what materials are deemed sexually explicit and ensures that 
material is not allowed to be sold on DOD property. DOD is committed to 
upholding both the Military Honor and Decency Act, and publishers and 
readers First Amendment protections, which the men and women of the 
U.S. Armed Forces defend every day.

    30. Senator Wicker. General Dempsey, are any sexually explicit 
materials currently prohibited from sale on military installations, or 
is the selection of sexually-oriented material available at military 
exchanges comparable to what can be found off base?
    General Dempsey. DOD established the Resale Activities Board of 
Review to review material offered for sale or rental on property under 
DOD jurisdiction and make recommendations to the Secretary of Defense 
regarding what material should be prohibited from sale or rental in 
accordance with 10 U.S.C. section 2495b(a). Since its inception in 
1998, the Board has reviewed 418 titles and determined 251 (60 percent) 
to be sexually explicit. Of those items determined not sexually 
explicit, 48 titles are currently authorized to be sold in military 
exchanges. Any material that is determined to be sexually explicit as 
defined by section 2495b of title 10, U.S.C. is not offered for sale or 
rental on property under DOD jurisdiction. If such materials are found 
on store shelves, they are removed.

    31. Senator Wicker. General Dempsey, in light of the recent 
allegations, would it be appropriate for the Office of the Secretary of 
Defense to make another attempt at developing a workable definition of 
sexually explicit?
    General Dempsey. The term ``sexually explicit'' is defined by law 
in section 2495b of title 10, U.S.C. DOD, in close coordination with 
the General Counsel's office, applies the law's definition to determine 
what materials are deemed sexually explicit and not allowed to be sold 
on DOD property. To that end, the Joint Chiefs will provide input as 
requested to the Department on revisions to the law's definition of 
sexually explicit should the Secretary deem it necessary.
                                 ______
                                 
              Questions Submitted by Senator Kelly Ayotte
 lackland air force base scandal and the vulnerability of trainees to 
                             sexual assault
    32. Senator Ayotte. General Welsh, in your prepared statement you 
confirm that 63 trainees and technical school students were involved in 
the scandal at Joint Base San Antonio-Lackland, including 12 victims of 
sexual assault. You state that, ``The mending of the BMT environment at 
Lackland Air Force Base has taken time . . . '' How was the training 
environment damaged at Lackland and why has it taken time to repair the 
damage?
    General Welsh. We identified five major areas of weakness within 
BMT: (1) leadership, where deterrence was found to be hindered by 
insufficient leadership oversight; (2) the military training instructor 
(MTI) selection and manning process, where the MTI corps consisted of 
members with minimal leadership experience and too much power resident 
with a single MTI; (3) MTI training and development, where the MTI 
culture and training did not adequately emphasize NCO responsibilities; 
(4) reporting and detection, which addressed barriers that exist in 
reporting by MTIs, trainees, and students; and (5) policy and guidance, 
where enduring institutional safeguards are necessary.
    Given the nature of the BMT environment, the opportunity for abuse 
of power must be understood and eliminated. To guard against 
misconduct, BMT incorporates institutional safeguards to dissuade, 
deter, detect, and hold accountable individuals who engage in 
unprofessional conduct. We found weaknesses in those safeguards and 
flaws in the leadership oversight and MTI culture that enabled the 
weaknesses to be exploited.
    From this information we drew three overarching conclusions: (1) 
over time, weaknesses developed in each of the previously described 
institutional safeguards; (2) leadership failed to detect and prevent 
these weaknesses, and: (3) our MTIs did not sufficiently police 
themselves.
    Of these three, leadership stood out as the most important area to 
address. Strong leadership can overcome weaknesses in institutional 
safeguards and/or weaknesses in the MTI culture. Average or weak 
leadership will struggle to successfully navigate through the unique 
challenges that exist in the BMT environment. Given the singular 
importance of leadership in maintaining an effective, safe, and secure 
BMT environment, we took aggressive action in this area.
    Training squadron commander positions are being filled with high-
potential officers; this is happening now and will be complete by July. 
We also increased the number of leadership positions within the 
squadrons by adding operations officers and flight commanders to the 
rosters. We increased the experience level of leaders by upgrading the 
squadron first sergeant positions from master sergeant to senior master 
sergeant and the squadron superintendent positions from senior master 
sergeant to chief master sergeant. Leadership preparation has also been 
strengthened considerably through an expanded leadership orientation 
course that places additional emphasis on the potential for abuse of 
power, sexual assault, unprofessional relationships, and maltreatment 
or maltraining. Finally, we instituted a set of policy changes to 
ensure leadership receives timely notification of potential misconduct, 
credible allegations of misconduct result in immediate removal from the 
training environment, and more appropriate thresholds were set for the 
temporary or permanent removal of an MTI from the instructor corps. 
Taken together, these actions directed at strengthening the leadership 
team provided the most effective means of ensuring that we are well 
positioned to address the critical issues impacting BMT today, and that 
we maintain this position of strength for the long run. All these 
changes will be complete by the end of the summer of 2013.
    A second set of initiatives that will pay significant dividends 
involves placing MTIs in a stronger position to successfully execute 
their duties. In this regard, we believe the single most important 
decision they can make is to reduce the MTI duty day, which can extend 
as long as 16 hours for weeks at a time. To this end, we will assign 
two MTIs to each BMT flight, which will allow splitting the duty day in 
half. We will also increase the required grade level for MTI duty to 
technical sergeant, which will bring more experience and maturity to 
the MTI corps. MTI initial qualification and supplemental training will 
also be improved through changes in the qualification training course 
and the establishment of a deliberate development program.
    Our goal is to raise professionalism in BMT to the highest level 
possible. The command cannot achieve this goal unless it selects the 
most highly-qualified airmen for MTI duty and then provides them with 
high-quality training and a reasonable workday. The changes we've made 
concerning MTI selection, professional development, and work period 
have contributed significantly to enhancing the ability of MTIs to 
execute their duties professionally.
    Along with leadership and MTIs, there is a third group of people 
who are an instrumental part of the solution set for strengthening the 
effectiveness, safety, and security of the BMT environment. This group 
is the trainees, who play a critical role in the ability to detect and 
deter misconduct. Moreover, we must do better at taking advantage of 
the unique opportunity afforded in BMT to prepare our newest airmen to 
deal effectively with sexual assault and unprofessional behavior 
throughout the remainder of their Air Force careers. This process of 
increasing the capacity of our trainees to be part of the solution set 
will begin before they enter BMT. From their recruiter, they receive a 
briefing that covers sexual assault, sexual harassment, unprofessional 
relationships, maltreatment and maltraining, and the reporting of 
misconduct during BMT. This briefing is repeated after the trainees 
arrive at BMT. Additionally, we increased the number of sexual assault 
response counselors (SARC) in BMT. This will not only provide more 
trainee contact with SARCs but also increase the portion of the sexual 
assault prevention training curriculum instructed by SARCs.
    Feedback from trainees is another area where we needed to improve. 
AETC improved feedback mechanisms through better positioning of 
critique boxes and improved survey mechanisms, and added hotline phones 
for direct connection to the SARC.
    A significant policy change concerning trainee safety is expansion 
of the wingman policy, which now requires trainees to be accompanied by 
another trainee any time they are outside a group setting. This single 
policy change dramatically decreased the potential for sexual assault 
or misconduct since these types of activities almost always occur in a 
one-on-one setting.
    The misconduct discovered at BMT tore at the foundational trust and 
core values that hold the Air Force together. We are fully committed to 
enduring solutions for the BMT environment and a zero-tolerance 
standard for misconduct or abuse of power in this key training program. 
Since discovering the breadth and depth of the misconduct, we engaged 
directly and rapidly. The changes mentioned above are nearly complete 
and are a result of a measured and thoughtful approach to ensure that 
we could tie the initiative to a predictable outcome. We expect to 
complete all the structural changes needed except for returning the MTI 
corps to 100 percent manning by the end of this summer. Our MTI corps 
will be fully manned by the early spring of 2014.fully manning our MTI 
corps is critical, but lead time for personnel movement, training and 
MTI certification is over six months-we're focused on this and all 
other aspects of BMT and we are well underway to completion.

    33. Senator Ayotte. General Welsh, you also say that the basic 
military environment requires ``high levels of professional conduct.'' 
You correctly state that our trainees deserve and the American people 
expect that sort of professional environment. Why do you believe it is 
especially important to demand a high level of professional conduct 
between military trainers and military recruits during basic training?
    General Welsh. Our military trainers are placed in positions of 
trust that demand they train our future airmen to defend our country 
and win our Nation's wars. This cannot be accomplished without an 
environment of trust and respect. It is especially important to demand 
a high level of professional conduct between military trainers and 
military recruits during basic training in order to reflect the highest 
standards of personal conduct, morality, and professionalism in our Air 
Force. The Code of Ethics, the Airman's Creed, and the Air Force Core 
Values are basic principles that demand respect and foster the morale, 
welfare, and esprit de corps of all airmen.

    34. Senator Ayotte. General Dempsey, why do you believe it is 
especially important to demand a high level of professional conduct 
between military trainers and military recruits during basic training?
    General Dempsey. I strongly believe a high level of professional 
conduct between trainers and military recruits is crucial during basic 
training because it establishes servicemembers' expectations of their 
peers and their leadership throughout their careers. Basic training is 
the first real opportunity to introduce young recruits to military 
life, instill discipline and foster trust. Recently, we have seen how 
those who do not respect or share our core values of dignity and 
respect can rock the very foundation we are trying to build for those 
entrusted in our care.

                       navy forensic examinations
    35. Senator Ayotte. Admiral Greenert, according to a January 2013 
GAO report, the Navy does not require that its vessels deploy with a 
provider trained to conduct a forensic examination, and will instead 
transfer a victim to the nearest trained provider, whether at sea or 
ashore. According to GAO, Navy medical providers ``also told us that if 
a transfer is not possible they would do their best to conduct the 
forensic examination using the instructions provided with examination 
kits.'' Is that accurate?
    Admiral Greenert. While not all operational commands at the time of 
the GAO inspection were trained to complete forensic examinations, the 
forensic kits to complete medical-forensic examinations are available 
in all shore and operational settings. Training is in progress now and 
fully-trained personnel will be in place in all shore and operational 
settings by September 30, 2013.

    36. Senator Ayotte. Admiral Greenert, what is the Navy doing to 
quickly address this unacceptable status quo?
    Admiral Greenert. Navy is committed to providing quality care and 
follow-up to victims of sexual assault. All Navy Military Treatment 
Facilities will have the SAFE capability no later than September 30, 
2013. This certification includes reporting procedures. Additionally, 
we have established and are enforcing training requirements for all 
healthcare providers that conduct SAFE exams. These training 
requirements are tracked on a weekly basis and include:

         A patient-centered medical-forensic examination 
        covering the patient interview, evidence collection and 
        analysis, survivor experiences, pre-trial preparation and court 
        testimony as a factual witness.
         Navy specific training, including restricted and 
        unrestricted reporting and the policy guidance on both.

    Finally, we conduct competency assessments for non-licensed 
independent practitioners (registered nurses and independent duty 
corpsmen).

      guard and reserve victims access to sexual assault response 
                              coordinators
    37. Senator Ayotte. General Dempsey, General Odierno, Admiral 
Greenert, General Amos, General Welsh, and Admiral Papp, do you believe 
that victims of sexual assault in the military should have access to a 
SARC or a similarly trained individual who can support victims and help 
them access the support and care they need?
    General Dempsey. Every victim of sexual assault deserves and 
receives the best possible care and support the Department can provide. 
The Department has ensured that victims of sexual assault can access 
first responders, to include SARCs and SAPR victim advocates, who are 
trained and certified. The DOD Sexual Assault Advocate Certification 
Program (D-SAACP) was established to standardize sexual assault 
response to victims and professionalize victim advocacy roles of SARCs 
and SAPR victim advocates. The certification of SARCs and SAPR victim 
advocates is guided by a Competencies Framework, which identifies and 
organizes the core knowledge, skills, and attitudes for performing 
sexual assault victim advocacy.
    General Odierno. Yes. DOD requires all sexual assault victims have 
access to a trained individual who can support and help victims access 
care (counseling and medical and advocacy services). In accordance with 
Army policy, victims are provided a variety of options by which they 
can reach out for this help by making either a restricted or an 
unrestricted report.
    Admiral Greenert. Yes.
    General Amos. Yes. All SAPR program services are available to our 
Reserve component marines. If victims report a sexual assault that 
occurred prior to or during periods when they are not performing active 
service or inactive training, they are still eligible to receive SAPR 
support services from a SARC and a SAPR victim advocate and are 
eligible to file a restricted or unrestricted report.
    Our fiscal year 2013 initiative to increase SAPR personnel across 
the Marine Corps included the addition of five new positions, three 
full-time civilian Command SARCs and two full-time civilian SAPR victim 
advocates, all dedicated to Marine Forces Reserve and located at the 
4th Marine Division, 4th Marine Aircraft Wing, and 4th Marine Logistics 
Group. All five positions have been filled through a competitive 
selection process with qualified professionals.
    General Welsh. Absolutely! Victims of sexual assault in the 
military should have access to a full spectrum of care. We provide 
medical care, spiritual counseling, and legal support to all victims 
regardless of the reporting option they choose.
    Admiral Papp. Absolutely.

    38. Senator Ayotte. General Dempsey, do you believe that members of 
the Guard and Reserve who are victims of sexual assault should have the 
same access to SARCs as Active Duty members?
    General Dempsey. Yes. National Guard (NG) and Reserve component 
members who are sexually assaulted when performing inactive duty 
training and Active service have the same access to SARC support as 
Active Duty members. If reporting a sexual assault that occurred prior 
to or while not performing active service or inactive training, NG and 
Reserve component members are eligible to receive limited SAPR support 
services from a SARC and a SAPR victim advocates.

    39. Senator Ayotte. General Dempsey, do you agree that SARCs be 
available to members of the National Guard and Reserve at all times 
regardless of whether they are operating under title 10 or title 32 
authority?
    General Dempsey. National Guard (NG) and Reserve component members 
who are sexually assaulted when performing active service, as defined 
in 10 U.S.C. section 101(d)(3), and inactive duty training have the 
same access to SARC support as Active Duty members. Full-time State 
SARCs have been in place for the NG since 2008. Our efforts are 
cognizant of a National Guard member's status under Title 32 to ensure 
State authorities are not compromised.
                                 ______
                                 
               Questions Submitted by Senator Carl Levin
    comparison with military justice systems of certain u.s. allies
    40. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and General Altenburg, the United Kingdom, 
Canada, Australia, Germany, and Israel have changed their military 
justice systems to significantly reduce the role and authority of 
military commanders. Have you examined the military justice systems of 
these allies? If so, how do they differ from the military justice 
system in the U.S. military?
    General Chipman. Army Judge Advocates have examined the structure 
of the military justice systems of our allies and met on numerous 
occasions with their counterparts. There is no single model for 
military justice among our allies. Each force has developed a system 
that compensated for or corrected actual or perceived short comings in 
the due process afforded accused servicemembers, balanced with the need 
for the efficient administration of discipline given the size, missions 
and capabilities of the individual forces. The United Kingdom, Canada, 
Australia, Israel, and Germany have modified the authority and 
responsibilities of the commander, to varying degrees, but have 
retained military court jurisdiction over servicemembers.
    The Canadian Military Prosecution Service (CMPS) is led by the 
Director of Military Prosecutions (DMP), a military officer who is 
statutorily appointed by the Minister of National Defense. A 
prosecutor's advice is required before a charge can be `laid', and the 
DMP ultimately determines whether or not charges will be ``preferred'' 
to court-martial (similar to U.S. ``referral''). It is noteworthy that 
the commander actually `lays' charges and, if there is a disagreement 
on laying charges, it is the commander who makes the final decision, 
not the DMP. Thus, while Canada has created a separate body to 
prosecute cases, they have retained command discretion in the charging 
process. The Canadian approach is similar to our process of providing 
legal advice at the preferral of charges, and requiring legal advice at 
the referral of charges to court-martial. The DMP was established in 
1997.
    In the United Kingdom, when a commander believes that an accused 
has committed a serious offense, the commanding officer must refer the 
case to the service police for investigation. Since 1997, the service 
police report the results to the Director of Service Prosecutors (DSP), 
who is appointed by the Queen. The DSP may direct the accused's 
commanding officer to bring the charges to court-martial; specify the 
form of the charges; dismiss the charges; or leave the charging 
decision up to the accused's commanding officer. The DSP is not 
required to be a member of the Armed Forces, but must have been a 
barrister or solicitor for at least 10 years. The current director is a 
civilian. The United Kingdom has retained jurisdiction over all 
offenses.
    In Israel, evidence is gathered by the Military Police and 
transferred to the Prosecutorial Division of the Military Judge 
Advocate General's Corps (MAG), led by a military attorney. The 
Prosecution Division decides whether to (1) submit an indictment to the 
military court, or (2) transfer the case to the commander for exercise 
of disciplinary jurisdiction, or (3) order the closure of the case.
    In Australia, whether or not a charge goes to court-martial is 
determined by the Director of Military Prosecutions (DMP), a military 
attorney. Once a charge is referred to the DMP, the DMP may direct the 
charge be not proceeded with; refer the charge to a superior summary 
authority or commanding officer for trial; request the Registrar, 
another statutorily appointed military attorney, to refer the charge to 
a Defence Force magistrate for trial; or request the Registrar to 
convene a general court-martial or a restricted court martial to try a 
charge. Prior to 2005, the Australian military justice system relied on 
convening authorities to convene courts-martial.
    Admiral DeRenzi. Admiral Greenert, the Deputy Judge Advocate 
General of the Navy, and I have had meetings with our counterparts from 
the United Kingdom, Canada, and Australia to discuss the management of 
military justice cases, including sexual assault. The role of the 
military commander in these nations differs from the role of the 
commander in the U.S. military justice system.
    In the United Kingdom, a civilian Director of Service Prosecutions 
makes the decision to prosecute at court-martial and determines the 
charges. Military commanders may try minor offenses at a Summary 
Hearing (similar to NJP under Article 15 of the UCMJ); however, serious 
offenses are referred to General Court-Martial and, in contrast to the 
U.S. military justice system, commanders may not grant clemency 
following a conviction at court-martial. Homicide and rape cases 
occurring in the United Kingdom are traditionally tried by civilian 
authorities in the United Kingdom.
    In Canada, commanders may try minor offenses at a Summary Trial 
(similar to NJP). For more serious offenses, a commander, a commander's 
delegate, or a military police officer may charge the offenses, which 
are then referred to the CMPS. The CMPS was created to separate the 
court-martial system from military commanders; the Director is 
appointed by the Defense Minister and CMPS ranks are staffed with 
active-duty attorneys. CMPS decides which cases should proceed to 
trial, designates the trial forum, drafts appropriate charges, and 
provides prosecutors for court. CMPS may also decide to not proceed 
with charges. Military commanders have no authority to grant post-trial 
clemency following conviction at court-martial. Offenses committed by 
servicemembers in Canada may also be prosecuted in civilian courts.
    In Australia, a military commander may try minor offenses before a 
Summary Authority (similar to NJP). More serious offenses are 
investigated by the Provost Marshal, who has the discretion to submit 
the investigation to the commander or to the independent Director of 
Military Prosecutions (DMP). The DMP, appointed by the Defense 
Minister, consults with the Superior Authority (typically a two-star 
commander) to ensure chain-of-command input is considered in the 
disposition decision. For offenses with concurrent military/civilian 
jurisdiction, the DMP is required to consult with civilian authorities 
to determine whether the offense is sufficiently connected to service 
discipline to allow trial by court-martial. If the DMP determines that 
court-martial is warranted, the DMP determines the charges and provides 
the prosecuting attorney. Through the Registrar of Military Justice, a 
panel of jurors is chosen at random from all available officers of the 
defense force. This system was instituted in Australia 8 years ago. 
Although generally thought to have provided more transparency and 
fairness in the eyes of the Australian populace, the changes have not 
markedly changed the rate of criminal offenses, serious crimes, or 
conviction rates. The Australian force has expressed an interest in the 
U.S. system's restricted reporting options to encourage sexual assault 
victims to come forward.
    In Germany, servicemembers are tried exclusively under civilian law 
in civilian courts. As a result of alleged offenses committed by German 
servicemembers during military operations in Iraq and Afghanistan, 
Germany is considering creating a specialized court for military 
offenses.
    Israeli Defense Force (IDF) commanders may try minor offenses under 
the ``Disciplinary Law'' (similar to NJP). More serious offenses are 
addressed through the military court system. Military police conduct 
criminal investigations and transfer evidence to the Prosecutorial 
Division of the Military Advocate General's (MAG) Corps-a specialist 
corps of legal officers who oversee case disposition, including 
evaluation of the evidence, and decide whether to pursue an indictment 
in military court, transfer the case to disciplinary jurisdiction, or 
close the case. Non-military offenses committed by servicemembers may 
be tried by court-martial or in civilian court; the MAG selects the 
forum for trial, which is determined by the degree of correlation 
between the offense and military service.
    General Harding. We examined the military justice systems of some 
of these allies, specifically the United Kingdom, Canada, and 
Australia. I spoke with a number of our allies about the role and 
authority of military commanders in their systems, and we have begun 
evaluating the merits of their approaches. Specifically, I had meetings 
with my Australian and Canadian counterparts on the topic in the last 6 
months and I intend to engage with my British counterparts later this 
year.
    The systems vary primarily in their increased centralization and 
reduced role of commanders for certain criminal offenses within their 
military justice systems. For example, in Australia, commanders still 
dispose of 92 percent of cases occurring in their units, although the 
most serious cases have been removed from the commander and referred to 
the Director of Military Prosecutions since 2005. Despite the removal 
of the commander from the disposition decision in the most serious 
sexual assault cases, there has been no decline in sexual assault 
allegations.
    My staff recently finished a review of the United Kingdom's 2010 
Service Prosecuting Authority inspection report for any lessons learned 
that may have application to our system. It is a thorough inspection 
report for the first year of the Service Prosecuting Authority's 
operation, and it is largely focused on efficiency and effectiveness of 
the standup of the new organization. It does not evaluate its impact on 
good order and discipline or the satisfaction of commanders with the 
system. The Authority's report is available on-line at: http://
www.hmcpsi.gov.uk/documents/reports/OTHER/SPA/SPA--Dec10--rpt.pdf.
    While we have been examining these military justice systems, we are 
not aware of any studies that evaluate the impact on good order and 
discipline after the changes to the systems of our allies that would 
indicate that we should adopt their approach.
    General Ary. Major General Ary had meetings with counterparts from 
Canada and Australia to discuss their justice systems. Vice Admiral 
DeRenzi also had meetings with our counterparts from the United 
Kingdom, Canada, and Australia. The role of the military commander in 
these nations' military justice systems differs from the role of the 
commander in the U.S. military justice system.
    In the United Kingdom, a civilian Director of Service Prosecutions 
may direct an accused's commander to bring charges at court-martial, 
specify the form of charges, dismiss charges, or leave the charging 
decision to the commander. Military commanders may try minor offenses 
at a Summary Hearing [similar to NJP under Article 15 of the UCMJ]; 
however, serious offenses are referred to Court-Martial and, in 
contrast to the U.S. military justice system, commanders may not grant 
clemency following a conviction at court-martial. Homicide and rape 
cases are traditionally tried by civilian authorities.
    In Canada, commanders may try minor offenses at a Summary Trial 
(similar to NJP). For more serious offenses, a commander, a commander's 
delegate, or a military police officer may charge the offenses, which 
are then referred to the CMPS. The CMPS was created to separate the 
court-martial system from military commanders; the Director is 
appointed by the Defense Minister and it is staffed with active-duty 
attorneys. The CMPS decides which cases should proceed to trial, 
designates the trial forum, drafts appropriate charges, and provides 
prosecutors for court. The CMPS may also decide to not proceed with 
charges. Military commanders have no authority to grant post-trial 
clemency following conviction at court-martial. Offenses committed by 
servicemembers in Canada may also be prosecuted in civilian courts.
    In Australia, a military commander may try minor offenses before a 
Summary Authority (similar to NJP). More serious offenses are 
investigated by the Provost Marshal, who has the discretion to submit 
the investigation to the commander or to the independent Director of 
Military Prosecutions (DMP). The DMP, appointed by the Defense 
Minister, consults with the Superior Authority (typically a two-star 
commander) to ensure chain-of-command input is considered in the 
disposition decision. For offenses with concurrent military/civilian 
jurisdiction, the DMP is required to consult with civilian authorities 
to determine whether the offense is sufficiently connected to service 
discipline to allow trial by court-martial. If the DMP determines that 
court-martial is warranted, the DMP determines the charges and provides 
the prosecuting attorney. This system was instituted in Australia 8 
years ago. Although generally thought to have provided more 
transparency and fairness in the eyes of the Australian populace, the 
changes have not markedly changed the rate of criminal offenses, 
serious crimes, or conviction rates.
    In Germany, servicemembers are tried exclusively under civilian law 
in civilian courts. As a result of alleged offenses committed by German 
servicemembers during military operations in Iraq and Afghanistan, 
Germany is considering creating a specialized court for military 
offenses.
    Israeli Defense Force (IDF) commanders may try minor offenses under 
the ``Disciplinary Law'' (similar to NJP). More serious offenses are 
addressed through the military court system. Military police conduct 
criminal investigations and transfer evidence to the Prosecutorial 
Division of the Military Advocate General's (MAG) Corps-a specialist 
corps of legal officers who oversee case disposition, including 
evaluation of the evidence, and decide whether to pursue an indictment 
in military court, transfer the case to disciplinary jurisdiction, or 
close the case. Non-military offenses committed by servicemembers may 
be tried by court-martial or in civilian court; the MAG selects the 
forum for trial, which is determined by the degree of correlation 
between the offense and military service.
    General Altenburg. All are different from U.S. Military Justice--
and all are different from each other in multiple ways. United Kingdom, 
Canada, Australia, and Israel are Common Law countries; Germany is a 
civil law country. Common law and civil law traditions influence 
national military justice systems. The greatest difference between the 
named countries' military justice systems and the U.S. system is that 
the U.S. system retains the Commander's role as Convening Authority. 
The other countries have placed prosecutorial decision making with 
attorneys--military attorneys in most instances, civilian attorneys in 
others. When comparing other nations' military justice systems with a 
view toward possible change, it is prudent to analyze and compare force 
end strength, prosecution, conviction, and sentencing statistics and 
compare them to U.S. military justice statistics. Although statistics 
from U.S. allies are limited, it is clear that the U.S. military 
justice system prosecutes more sex offenses per capita and produces 
more convictions than the allies. Please see also my response to 
Question 5. Reliance on the Australian system is especially dubious. 
Revisions to the Australian Military Justice system in October 2007 
were subsequently declared unconstitutional by Australia's highest 
court. The court decision caused considerable disarray and confusion 
for the Australian military. This reinforces the importance of 
thoughtful, fully researched studies and committee hearings before 
effecting significant change to the UCMJ.

    41. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and General Altenburg, what is your understanding 
of the historic basis for these differences?
    General Chipman. The United Kingdom, Australia and the Canada 
changed their military justice systems to ensure the accused had the 
right to an independent and impartial tribunal.
    In 1997, the United Kingdom changed its system in response to the 
ruling of the European Court of Human Rights (ECHR) in Findlay v. The 
United Kingdom. In Findlay, the ECHR held that the central role of the 
convening officer violated Article 6 of the European Convention on 
Human Rights, which guarantees an accused the right to ``an independent 
and impartial tribunal.''
    Canada modified its system in 1997 after a Report of the Special 
Advisory Group on Military Justice and Military Police Investigative 
Services recommended that the court-martial prosecution process be 
separated from the chain of command.
    Australia changed its system in 2005 in response to a Senate 
Foreign Affairs, Defence and Trade Reference Committee Report, ``The 
Effectiveness of Australia's Military Justice System.'' That report 
directed changes to the military justice system to promote transparency 
and independence.
    None of the countries noted changed their system out of a concern 
for victim rights.
    Admiral DeRenzi. The reduction of the commander's role in military 
justice in the United Kingdom was influenced by litigation brought by a 
servicemember convicted before the ECHR, Findlay v. United Kingdom 
(1997). In Findlay, the ECHR held that ``the central role played by the 
convening officer'' in the United Kingdom court-martial system violated 
Article 6 of the ECHR, which guarantees an accused the right to ``an 
independent and impartial tribunal.''
    Changes in the Canadian system were prompted by the Supreme Court 
of Canada's decision in R. v. Genereux (1992). In Genereux, the Court 
held that a parallel system of military tribunals was not inconsistent 
with the Canadian Charter of Rights and Freedoms, provided the accused 
was afforded the constitutional guarantee of an independent and 
impartial tribunal. In the context of the case, the court found that 
the requirement for judicial independence was not met, and therefore 
the accused's right to an independent and fair tribunal was violated.
    Following World War II, Germany eliminated trial by court-martial 
and provided for the prosecution of servicemembers in the civilian 
court system.
    The Israeli Supreme Court has narrowly interpreted the military 
justice powers vested in commanders and held that a military commander 
may not make a prosecution decision which contradicts that of the 
Military Advocate General.
    General Harding. Our understanding of the historical basis for the 
differences is that each country has adapted to a unique legal and 
political climate different from ours.
    As an example from Australia, the most recent legislation creating 
a new Australian military justice court was found unconstitutional by 
their High Court, and they now have new legislation that is pending.
    For the United Kingdom, from 1996 to 2006, the driving factor in 
changes to the military justice systems was compliance with the 
European Convention on Human Rights, of which the United Kingdom is a 
party, and the decisions of the ECHR. Our understanding is the Court 
rendered this decision to protect rights of the accused rather than to 
correct perceived injustice to victims. Therefore, treaty obligations 
or court decisions were the impetus behind the changes, not any 
particular crime.
    General Ary. The reduction of the commander's role in military 
justice in the United Kingdom and Canada was influenced by litigation 
brought by a convicted servicemember before the ECHR, Findlay v. United 
Kingdom. In Findlay, the ECHR held that ``the central role played by 
the convening officer'' in the United Kingdom court-martial system 
violated Article 6 of the European Convention on Human Rights, which 
guarantees an accused the right to ``an independent and impartial 
tribunal.''
    In Australia, they used a system of military justice similar to 
ours until 2005, when it was revised following changes in Canada and 
the United Kingdom that dealt with transparency and independence in the 
prosecution of cases.
    Following World War II, Germany eliminated trial by court-martial 
and provided for the prosecution of servicemembers in the civilian 
court system.
    The Israeli Supreme Court has narrowly interpreted the military 
justice powers vested in commanders and held that a military commander 
may not make a prosecution decision which contradicts that of the 
Military Advocate General.
    General Altenburg. I understand that the United Kingdom, Australia, 
and Canada modified their Military Justice systems in response to 
complaints that the then-existing systems failed to protect adequately 
the rights of defendants. The basis for the complaints varied among the 
Nations, but all included lack of transparency generally and lack of 
independence from the command. These are the same complaints about the 
U.S. Military Justice System in the 1940s that led to the development 
and passage by Congress of the UCMJ in 1950 to replace both the 
Articles of War and Articles for the Government of the Navy. Other 
complaints in the 1960s regarding lack of fairness led, after 
considerable study and analysis, to the 1968 UCMJ amendments. In the 
case of the United Kingdom, two decisions by the ECHR, Findlay v United 
Kingdom, [1997] ECHR 8; (1997) 24 EHRR 221, and Grieves v United 
Kingdom, [2003] ECHR 688; (2004) 39 EHRR 2, dictated that their 
Military Justice system be modified to afford greater protection to 
military personnel accused of crimes. The Canadian system was reformed 
after the Supreme Court of Canada's decision in R. v. Genereux, [1992] 
S.C.R. 259, which held that the Canadian court-martial system violated 
accused servicemembers' rights under the Canadian Charter of Rights and 
Freedoms. The Australian system was modified by the Parliament in 2006 
after extensive research and analysis by special government entities. 
Unlike the courts requiring change in countries such as the United 
Kingdom and Canada, the U.S. Supreme Court has specifically upheld the 
U.S. military justice system in decisions like Parker v. Levy, 417 U.S. 
733, 743 (1974) (upholding the constitutionality of Articles 133 and 
134, UCMJ and finding that the military is ``a specialized society 
separate from civilian society'' with ``laws and traditions of its own 
[developed] during its long history.''); Middendorf v. Henry, 425 U.S. 
25 (1976) (upholding summary courts-martial proceedings); Solorio v. 
United States, 483 U.S. 435 (1987) (upholding courts-martial 
jurisdiction over military members for other than service-related 
offenses and requiring only military status for jurisdiction); Weiss v. 
United States, Weiss v. United States, 510 U.S. 163 (1994) (rejecting 
constitutional challenges to the appointment of military judges by the 
Service Judge Advocates General and Due Process Clause challenge to 
military judges' lack of fixed terms of office); and Loving v. United 
States, 517 U.S. 748 (1996) (rejecting constitutional challenge to the 
military death penalty procedures).
    The research and study groups in allied nations may well have been 
modeled on similar groups in the United States created to research and 
study Military Justice before congressional action in 1950, 1968, and 
1983. There was extensive research and analysis by military and 
civilian experts in the United States especially in connection with the 
Vanderbilt Commission, the Doolittle Commission, and the Forrestal 
(Morgan) Commission. Review of the findings and recommendations of 
commissions, other studies, and extensive congressional hearings led to 
passage of the UCMJ in 1950. The current proposal to remove commanders 
from Military Justice decisionmaking is more far reaching and 
significant than all the changes of the other three major pieces of 
legislation (1950, 1968, 1983) taken together. I respectfully submit 
that the permutations and unintended consequences of such an historic 
change should be evaluated carefully by special committees of experts, 
military and civilian. The recently appointed Response Systems Panel, 
established by section 576 of the NDAA, 2013, is but one example of a 
group whose final report should be reviewed and analyzed before 
legislation is considered to change in so profound and fundamental ways 
the U.S. Military Justice system. Finally, it is noted that victims' 
rights, sexual assault offenses, or considerations other than 
protecting defendants had nothing to do with changing the Military 
Justice systems in any of the named countries.

    42. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and General Altenburg, have you discussed the 
administration of military justice with your counterparts in these 
countries? If so, what did you learn from these discussions?
    General Chipman. Army Judge Advocates have studied the military 
justice systems of our allies and met on numerous occasions with their 
counterparts. Canada, Australia, and the United Kingdom were forced to 
change their military justice systems to protect the rights of the 
accused and ensure a fair and impartial tribunal. None of our allies 
indicated that concerns about the reporting, investigation or 
prosecution of sexual assault contributed to military justice reform in 
their respective countries. Further, the role of the commander has 
been, and continues to be, essential to the success of their systems.
    In Canada, the United Kingdom, and Australia, most disciplinary 
actions are handled by the commander-controlled summary system, a 
disciplinary process similar to our NJP. In Australia, the crime rates 
have remained the same from before the system was modified in 2005 
until now, and there is no indication that victims are more likely to 
come forward and make complaints.
    Admiral DeRenzi. Admiral Greenert, the Deputy Judge Advocate 
General of the Navy, and I have had meetings with our counterparts from 
the United Kingdom, Canada, and Australia to discuss the management of 
military justice cases, including sexual assault. Our discussions 
served to compare and contrast our respective systems of military 
justice and exchange views on the challenges we face.
    Significant changes were made to the military justice systems in 
the United Kingdom, Canada, and Australia; many changes resulted from 
perceived system unfairness, lack of transparency, or court rulings 
pertaining to the rights of accused servicemembers. Each system retains 
the authority of the commander to adjudicate minor offenses and 
maintains differing roles for the military commander in the disposition 
of more serious offenses.
    General Harding. Yes, we examined the military justice systems of 
some of these allies, specifically the United Kingdom, Canada, and 
Australia. I spoke with a number of our allies about the role and 
authority of military commanders in their systems, and we have begun 
evaluating the merits of their approaches. Specifically, I had meetings 
with my Australian and Canadian counterparts on the topic in the last 
six months and I intend to engage with my British counterparts later 
this year.
    The systems vary primarily in their increased centralization and 
reduced role of commanders for certain criminal offenses within their 
military justice systems. For example, in Australia, commanders still 
dispose of 92 percent of cases occurring in their units, although the 
most serious cases have been removed from the commander and referred to 
the Director of Military Prosecutions since 2005. Despite the removal 
of the commander from the disposition decision in the most serious 
sexual assault cases, there has been no decline in sexual assault 
allegations.
    My staff recently finished a review of the United Kingdom's 2010 
Service Prosecuting Authority inspection report for any lessons learned 
that may have application to our system. It is a thorough inspection 
report for the first year of the Service Prosecuting Authority's 
operation, and it is largely focused on efficiency and effectiveness of 
the standup of the new organization. It does not evaluate its impact on 
good order and discipline or the satisfaction of commanders with the 
system. The Authority's report is available on-line at: http://
www.hmcpsi.gov.uk/documents/reports/OTHER/SPA/SPA--Dec10--rpt.pdf.
    While we have been examining these military justice systems, we are 
not aware of any studies that evaluate the impact on good order and 
discipline after the changes to the systems of our allies that would 
indicate that we should adopt their approach.
    General Ary. Major General Ary had meetings with counterparts from 
Canada and Australia to discuss their justice systems. Vice Admiral 
DeRenzi also had meetings with our counterparts from the United 
Kingdom, Canada, and Australia. Our discussions served to compare and 
contrast our respective systems of military justice and exchange views 
on the challenges we face.
    The Marine Corps' initial research into the changes made by our 
allies indicates that in many cases, those changes were undertaken 
because of court decisions that found the military justice system did 
not adequately protect the rights of the accused. This is a 
fundamentally different situation than the one currently being 
evaluated by Congress as recent hearings have been focused on ensuring 
that the military protects the interests of victims in the military 
justice system. U.S. Federal courts, including the Supreme Court, have 
consistently upheld the Constitutionality of our military justice 
system.
    Perceived system unfairness, lack of transparency, and court 
rulings pertaining to the rights of accused servicemembers led to the 
significant changes in the military justice systems in the United 
Kingdom, Canada, and Australia. Each system retains the authority of 
the commander to adjudicate minor offenses and maintains differing 
roles for the military commander in the disposition of more serious 
offenses. At least in the case of Australia, the changes have not 
markedly impacted the rate of criminal offenses, serious crimes, or 
conviction rates.
    The Marine Corps will continue to research lessons learned from our 
allies, both individually and collectively as part of the Joint Service 
Committee on Military Justice, the Code Committee, the Response Systems 
Panel, and the Judicial Proceedings Panel. These lessons learned will 
continue to advance the cause of justice in the military.
    General Altenburg. I have discussed these matters with several 
United Kingdom military attorneys. I have not discussed these matters 
with military attorneys from the other countries. Some of my United 
Kingdom colleagues approve of the changes mandated by the ECHR. They 
perceive no detriment to the United Kingdom military as a result of the 
changes. Others confided that they believe the changes are negatively 
affecting the capabilities of their military. Objections included the 
time away from units and installations to attend civilian courts as 
witnesses and the perceived lack of unit control by commanders. No one 
would address objections for record. All noted that neither sexual 
assault cases nor victims' rights had any role in the development of 
changes to their Military Justice system.

    43. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and General Altenburg, have you discussed the 
impact of their systems on sexual assaults and reporting of sexual 
assaults?
    General Chipman. Army Judge Advocates have discussed with our 
allies the impact of their systems on sexual assaults and reporting of 
sexual assaults. Most are unable to determine the impact of their 
systems on sexual assaults and reporting. Whether or not there is a 
link between reporting, investigation, and prosecution is unknown. 
While our allies agree that sexual assault is under reported, they are 
only now beginning to study the problem.
    Canada conducted the Canadian Forces Workplace Harassment Survey in 
August 2012; the results are scheduled to be released later this fall. 
Canadian soldiers were asked to voluntarily complete a survey that 
asked 100 questions ranging from harassment to sexual assault.
    In 2009, the United Kingdom Army commissioned the Watts-Andrews 
Inquiry to report on the Army's progress on Equality and Diversity 
(E&D). The inquiry found that female servicemembers were seven times 
more likely to experience harassment and twice as likely to experience 
bullying as their male counterparts. The inquiry expressed concerns 
about willingness of female servicemembers to report misconduct.
    In 2012-2013, the Australian military conducted its first gender 
relations survey that concluded that only 20 percent of sexual assaults 
are reported. Prior to this, in 2011, the Australian Human Rights 
Commission conducted a Review into the Treatment of Women in the 
Australian Defence Force Academy and the Australian Defence Force. The 
Commission concluded that under-reporting of ``sexually related 
misconduct is a significant issue for the ADF.'' The Commission also 
recommended the establishment of a ``Sexual Misconduct Prevention and 
Response Office (`SEMPRO')'' that is scheduled to be operational in 
July 2013.
    In Israel, a 2008 survey indicated that one in seven female 
soldiers reported being assaulted or harassed. As a result, Israel 
established a two-week self-defense course for all women recruits and 
increased education efforts. Ynetnews reported that in 2007 there were 
318 complaints of sexual assault and in 2011 there were 583 complaints 
of sexual assault. This would represent an 80 percent increase in 
reports. However, this increase is not related to a change in the role 
of the commander, which has not changed since 1955. According to the 
IDP Manpower Directorate, ``No one can say whether the rise in the 
number of complaints indicates a rise in the number of cases of sexual 
harassment, or rather a rise in the awareness to the issue and the duty 
to report.'' Ynetnews.com, August 5, 2012.
    Admiral DeRenzi. Admiral Greenert, the Deputy Judge Advocate 
General of the Navy, and I have had meetings with our counterparts from 
the United Kingdom, Canada, and Australia to discuss the management of 
military justice cases, including sexual assault. Our counterparts 
believe changes to their systems of military justice have addressed 
human rights and fairness concerns pertaining to the rights of an 
accused and provide fairness and transparency to the civilian populace. 
It is less clear whether these changes impacted reports of crime or 
conviction rates when compared to their prior systems of military 
justice. In fact, the Australian force reports no change in these rates 
and believes there still is underreporting of sexual assaults. They 
also expressed an interest in the U.S. system's restricted reporting 
options to encourage victims to come forward.
    General Harding. Yes. I have spoken about this with my Australian 
counterpart and they have found no impact on reporting of sexual 
assault due to their new system, which changed in 2005 to centralize 
prosecutions for serious offenses warranting court-martial under an 
independent prosecutor. In fact, based on their survey data, they 
believe approximately 80 percent of sexual assaults go unreported, 
despite having an independent prosecutor.
    Further, I am not aware of any change in a system of military 
justice that was prompted or designed to specifically impact sexual 
assault or the reporting of sexual assaults. I will be discussing this 
matter later in the year with my United Kingdom counterpart. The United 
Kingdom approved the Armed Forces Act of 2006 at the end of 2006, 
although its provisions were not implemented until 2009. The Act did 
not create any specific or unique system for dealing with sexual 
offenses; serious offenses are dealt with in the same manner, by 
referral to the Director of Service Prosecutions for a decision on 
prosecution.
    General Ary. Major General Ary had meetings with counterparts from 
Canada and Australia to discuss their justice systems. Vice Admiral 
DeRenzi also had meetings with counterparts from the United Kingdom, 
Canada, and Australia.
    Our counterparts believe changes to their systems of military 
justice have addressed human rights and fairness concerns pertaining to 
the rights of an accused and provide fairness and transparency to the 
civilian populace. What is not clear is whether the changes in these 
countries' systems resulted in any changes in reports of crime or 
conviction rates when compared to their prior systems of military 
justice.
    General Altenburg. I have not, but recent assessments in Australia 
available to the public have emphasized that the lack of military 
involvement in investigations and prosecutions of military personnel 
are a primary cause of sex offense victims' failure to report hundreds 
of sexual crimes within Australian units. Please see also my response 
to Question 5.

    44. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and General Altenburg, are you aware of any 
studies of the systems of justice of these allies to assess their 
effectiveness and impact on sexual assaults and reporting of sexual 
assaults as compared to the more traditional model like that of the 
United States?
    General Chipman. No, we are not aware of any studies of the systems 
of justice of these allies to assess their effectiveness and impact on 
sexual assaults and reporting of sexual assaults as compared to the 
more traditional model like that of the United States. As discussed 
above, our allies did not adapt their systems of justice in response to 
issues related to sexual assault or victims' rights. Studies conducted 
by our allies have focused on the impact of changes to the military 
justice system on the rights of the accused servicemembers.
    All of our allies have acknowledged that sexual assault and sexual 
harassment is a pervasive and persistent issue, generating not only 
sensational publicity for specific cases but eroding discipline and 
morale. Until very recently, most of our allies have not engaged in the 
in-depth studies, surveys and research into sexual assault rates of 
incident, rates of reporting and reasons for underreporting that the 
U.S. military has conducted over the past decades. Several of our 
allies, including Canada and Australia, have recently conducted surveys 
that may allow us to study and compare the systemic responses of the 
various systems. Some of these allies have recently established 
prevention and education campaigns, based on U.S. models.
    Admiral DeRenzi. I am not aware of studies of the systems of 
justice of our allies to assess their effectiveness and impact on 
sexual assaults and reporting of sexual assaults as compared to the 
United States.
    General Harding. No, I am not aware of any such study.
    General Ary. The Marine Corps is not aware of studies of the 
systems of justice of our allies to assess their effectiveness and 
impact on sexual assaults and reporting of sexual assaults as compared 
to the United States.
    General Altenburg. I am generally aware that other countries are 
assessing the effects of changes in the administration of Military 
Justice since the mid-1990s. Years ago I discussed with several 
colleagues the effect of the ECHR decisions, but I have not discussed 
with anyone the effect on sexual assault specifically because the 
changes to Military Justice were completely unrelated to specific 
crimes, but rather were related to protections and individual rights of 
accused persons. I believe that there is greater awareness in all 
nations of the insidious effect of sexual assault on societies 
generally and militaries specifically, but I also believe that when it 
becomes a political issue the likelihood of careful, studied analysis 
generating thoughtful change that considers permutations and unintended 
consequences is lessened substantially. Change to Military Justice in 
this country and by the U.S. Congress has always been preceded by 
extensive study and analysis. An exception was the 2006 amendment to 
Title 10, Section 920 [NDAA for Fiscal Year 2006, Pub.L. No. 109-163, 
div. A, tit. V, Sec. 552(a)(1), 119 Stat. 3136, 3257 (2006)], the UCMJ 
sexual assault statute, which Congress then had to modify yet again in 
2011 [NDAA for Fiscal Year 2012, Pub. L. No. 112-81, Sec. 541, 125 
Stat. 1298 (2011)] because permutations and unanticipated consequences 
were not considered thoroughly before its 2006 passage.
    Much of the critical discussion about military disposition of sex 
offenses has relied on statistics to argue that the UCMJ should be 
amended. The total number of military sex crimes has been widely 
debated. The data in the following paragraphs responding to question 
five were provided to me by Professorial Lecturer in Law Lisa M. 
Schenck, Associate Dean for Academic Affairs, The George Washington 
University Law School in Washington, DC. This information is extracted 
from Professor Schenck's draft Fact Sheets, July 19, 2013. In fiscal 
year 2012, DOD investigators referred 1,714 sex offense investigations 
to DOD commanders for consideration of disciplinary action against 
military subjects. 302 DOD military personnel were tried by courts-
martial for sexual assault offenses, resulting in a prosecution rate of 
18 percent (302 cases tried divided by 1,714 cases referred by 
investigators) and 79 percent (238 convicted divided by 302 tried) were 
convicted. The rate per thousand of DOD personnel tried by courts-
martial for sexual assault offenses was .22 (302 tried by court-
martial/1,388,000) and the conviction rate per thousand was .17 (238 
convicted/1,388,000).
United Kingdom
    In fiscal year 2012, the active duty strength of the U.S. DOD was 
eight times as large as the United Kingdom Active-Duty Forces total of 
175,940. An average of 101 United Kingdom military sexual assaults and 
rapes were investigated by the police each year from 2005-2010; an 
average of 53 serious sex offenses cases (52 percent of investigated 
cases) were referred to the United Kingdom Special Prosecuting 
Authority (SPA) from 2007 to 2010. From 2005 to 2010, the United 
Kingdom tried an average of 2.3 sex offenses per year; the United 
Kingdom annual prosecution rate per thousand is .013. The rate per 
thousand of prosecution of DOD sex offenses is 17 times higher than the 
United Kingdom.
    Another perspective on the prosecution rate is based on the number 
of investigations referred by police for a disposition decision. The 
United Kingdom court-martial prosecution rate by this metric is 4.3 
percent (2.3 cases prosecuted divided by 53 cases referred by 
investigators to the United Kingdom SPA). The U.S. DOD prosecution rate 
for sex offenses is 18 percent, or four times higher.
    The United Kingdom changed to a system of centralized prosecutions 
handled by military lawyers after decisions by the ECHR. The modified 
system was designed to protect the rights of the accused from and avoid 
any perception of an overbearing chain of command intent on achieving 
unjust convictions. The United Kingdom change in charging and referral 
authorities had nothing to do with increasing prosecution rates for 
crime in general or sex offenses in particular. With an average of less 
than three sex offense prosecutions per year by courts-martial and more 
than 100 sex offenses investigated annually, the United Kingdom model 
does not appear to be a framework that the U.S. Armed Forces should 
adopt.
Canada
    From April 1, 2009 to March 31, 2010, nine Canadian military 
personnel were referred to court-martial with sexual assault charges: 
five were found not guilty; two were withdrawn; two were found guilty; 
and both of those who were convicted received sentences that included 
confinement. One received 20 months confinement for sexual assault, and 
one received 3 months for sexual interference and other offenses.
    From April 1, 2009 to March 31, 2010, Canada tried 56 courts-
martial (most of their disciplinary proceedings are summary trials, 
which are for minor disciplinary problems, similar to nonjudicial 
dispositions under Article 15, UCMJ). The Canadian court-martial rate 
per thousand for all offenses was .8 (56/70,000). The Canadian sex 
offense prosecution rate per thousand was .10 (7/70,000), and the 
conviction rate was .03 (2/70,000). The Canadian conviction rate was 29 
percent (2/7). The DOD rate per thousand for sex offense convictions 
was six times higher than Canada's.
    Some DOD general courts-martial jurisdictions have tried more 
courts-martial, obtained more convictions, tried more sexual assault 
cases, obtained more sexual assault convictions, and sent more sexual 
assault perpetrators to confinement than the entire Canadian armed 
forces, even though those jurisdictions have substantially fewer 
assigned personnel than Canada. For example, Fort Hood, Texas has 
45,000 active duty military personnel, compared to Canada's 70,000. In 
fiscal year 2011, Fort Hood prosecuted 115 courts-martial (including 18 
sex offenses), resulting in 112 convictions (including 13 sex offense 
convictions--the number of convictions is higher if cases are included 
where the accused was acquitted of a sex offense but convicted of other 
offenses). In fiscal year 2012, Fort Hood prosecuted 121 courts-martial 
(including 26 sex offenses), resulting in 114 convictions (including 21 
sex offense convictions). More important, in fiscal year 2011, 10 
military personnel were sentenced to more than 1 year of confinement; 
in fiscal year 2012, 17 military personnel were sentenced to more than 
1 year of confinement. In sum, Fort Hood by itself in fiscal year 2012, 
tried 3.7 times (26/7) as many sex offenses by courts-martial as the 
entire Canadian military and obtained 10 times (21/2) as many sex 
offense convictions, and sentenced 17 times (17/1) as many sex 
offenders to confinement.
Australia
    Australia's military justice system has been in turmoil for several 
years. The Australian Parliament modified their military justice system 
in 2006 to make it more like the systems in the United Kingdom and 
Canada. The goal was to increase the ``appearance of fairness'' for the 
accused (not to enhance justice for victims or to increase 
prosecutions). The Australian Government implemented the changes on 
October 1, 2007 by replacing general and restricted courts-martial and 
trial by a Defense Force Magistrate (DFM) with trial by a military 
tribunal (the Australian Military Court (AMC)) for the specific purpose 
of increasing protections for the accused. DFM and restricted courts-
martial have identical jurisdiction and authority. Their sentencing 
authority is limited to a maximum of six months confinement, or half 
the punishment authority of a U.S. special court-martial. An Australian 
general court-martial, like a U.S. general court-martial, may impose up 
to the maximum authorized punishment for the specific offense.
    The Australian Parliament created the Office of the Director of 
Military Prosecutions (DMP) effective June 12, 2006. The Director is a 
Brigadier; DMP has 14 prosecutor positions. The DMP prosecutes in-
service offenses at proceedings before courts-martial or a DFM, and 
seeks the consent of the Directors of Public Prosecutions to prosecute 
cases where there is overlapping jurisdiction.
    On August 26, 2009, the High Court of Australia invalidated the 
provisions establishing the AMC, Lane v. Morrison, [2009] H.C.A. 29. 
The Parliament responded by enacting the Military Justice (Interim 
Measures) Act (No. 1) 2009 and Military Justice (Interim Measures) Act 
(No. 2) 2009, re-establishing the pre-2007 regime of DFM, restricted 
courts-martial, and general courts-martial. The invalidation of the 
original system and uncertainty regarding its replacement created 
greater challenges to the Australian military's efforts to achieve good 
order and discipline.
    An Australian military sexual abuse scandal led the Australian 
Minister for Defence Stephen Smith, in April 2011, to announce two 
important reviews of sexual abuse in the Australian military-one review 
by the Australian Human Rights Commission, and another by a private 
sector law firm retained by the government. The law firm review found 
that once the military passed the investigation and prosecution of 
serious sex offenses to the civilian sector, the military virtually 
washed their hands of the matter and withdrew from the process. The law 
firm review collected 775 complaints; a 2012 follow-up review generated 
2,410 complaints of sexual abuse or harassment. Australia is embroiled 
in a massive review of their handling of sexual assault allegations.
    The active duty strength of the U.S. DOD in fiscal year 2012 was 
1,388,028 (24 times larger than the Australian Active-Duty Force of 
56,856). In 2009, 2011, and 2012, Australia averaged 47 military 
trials; however, most were DFM hearings or restricted courts-martial. 
In 2011 there were but 5 Australian general courts-martial, and in 
2012, only 1. In comparison, DOD completed 2,510 general and special 
courts-martial in fiscal year 2012, including 1,183 general courts-
martial and 1,327 special courts-martial, plus another 1,346 summary 
courts-martial. A U.S. soldier who commits a serious sex crime is far 
more likely to receive a general court-martial and substantial 
confinement from that court-martial than an Australian soldier who 
commits the same offense. The entire Australian military justice system 
prosecuted an average of three felony-level prosecutions the last 2 
years; it seems unwise to apply the Australian model to the U.S. system 
that prosecutes approximately 400 times as many felony-level cases.
Israel
    Unfortunately, the data from Israel is less complete. The following 
table provides the report and indictment information from 2008 to 2012. 
The reports include some minor sex conduct that in the United States 
would be viewed as non-criminal sexual harassment.

                             Military Sex Offense Reports and Indictments in Israel
----------------------------------------------------------------------------------------------------------------
                                             2008        2009        2010        2011        2012       Average
----------------------------------------------------------------------------------------------------------------
Reports.................................         318         363     Unknown         583     Unknown
Indictments.............................          28          26          20          14          27          23
----------------------------------------------------------------------------------------------------------------

    The Israeli active duty population is 176,500 or 4 times as large 
as the active duty population of Fort Hood. (Also noteworthy, women 
comprise 33 percent of the Israeli Defense Forces; in contrast, women 
make up approximately 15 percent of active duty DOD personnel.) Yet 
Fort Hood has approximately the same number of sex offense prosecutions 
as the entire Israeli forces (Fort Hood averaged 22 sex offense trials 
in fiscal year 2011 and 2012; Israel averaged 23 indictments from 2008 
to 2012). If the goal is to prosecute more sex offenses, the Israeli 
system seems not to be the model for DOD to emulate.

    45. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and General Altenburg, in your view, do the U.S. 
military and military justice systems share the features of the foreign 
systems that led them to reduce the role on authority of military 
commanders in the military justice system?
    General Chipman. No, the U.S. military and military justice systems 
do not share the features of the foreign systems that led them to 
reduce the role on authority of military commanders in the military 
justice system. The U.S. military justice system has safeguards in 
place to ensure the accused has the right to a fair and impartial 
trial. In addition, the UCMJ prohibits unlawful command influence. The 
U.S. Supreme Court has upheld the constitutionality of our military 
justice system and its safeguards provided to the accused. Furthermore, 
the safeguards and due process rights of soldiers are available to them 
both in garrison and in theater. The military justice system is 
deployable, when necessary, and has a proven record in theater. Both 
the rights of an accused soldier and the needs of a victim can be 
meaningfully protected both in garrison and in theater.
    Admiral DeRenzi. Significant changes were made to the military 
justice systems in the United Kingdom, Canada, and Australia; many 
changes resulted from perceived system unfairness or bias toward the 
prosecution and court rulings pertaining to the rights of accused 
servicemembers. Each system retains the authority of the commander to 
adjudicate minor offenses and maintains differing, albeit generally 
more limited, roles for the military commander in the disposition of 
more serious offenses.
    The U.S. military justice system protects the rights of accused 
servicemembers. For example, Article 37 of the UCMJ protects court-
martial proceedings and participants from unlawful command influence. 
Article 32 of the UCMJ guarantees a robust pre-trial investigation, 
which is more thorough than a civilian grand jury proceeding, prior to 
referring charges to a general court-martial. Trained military defense 
counsel are provided to the accused free of charge. Finally, court-
martial convictions are subject to robust review and appellate 
processes. The fundamental structure of the U.S. military justice 
system and UCMJ, centered on the role of the commander as the convening 
authority, is sound. The responsibility, authority, and accountability 
vested in the commander requires the provision of appropriate tools to 
maintain readiness and safety. Military justice is one of those tools. 
The UCMJ provides adequate protections to ensure the commander's role 
does not negatively impact the fundamental fairness of the military 
justice system.
    General Harding. No, it appears the driving factors behind the 
changes for our allies were primarily treaty obligations or court 
decisions which do not impact the United States.
    General Ary. The systematic issues that led to changes in the 
United Kingdom, Canada, and Australia-perceived system unfairness, lack 
of transparency, and court rulings pertaining to the rights of accused 
servicemembers-are not present in military justice in the United 
States. The U.S. military justice system already provides fairness and 
transparency, and protects the rights of accused servicemembers.
    For example, Article 37 of the UCMJ protects court-martial 
proceedings and participants from unlawful influence. Article 32 of the 
UCMJ guarantees a robust pre-trial investigation, which is more 
thorough than a civilian grand jury proceeding, prior to referring 
charges to general courts-martial. Trained military defense counsel are 
provided to the accused free of charge. Finally, court-martial 
convictions are subject to robust review and appellate processes. The 
fundamental structure of the U.S. military justice system and UCMJ, 
centered on the role of the commander as the convening authority, is 
sound. The responsibility, authority, and accountability we place in 
the commander require that we provide tools to maintain appropriate 
readiness and safety, and good order and discipline, every day. 
Military justice is one of those tools. The UCMJ provides adequate 
protections to ensure the commander's role does not negatively impact 
the fundamental fairness of the military justice system, and balances 
institutional interests, the rights of the accused, and the interests 
of victims.
    General Altenburg. No. The U.S. Military Justice system has evolved 
effectively since 1950. The rights of U.S. military personnel 
paralleled, and exceeded in many respects, the rights of U.S. citizens 
accused of crimes in civilian jurisdictions, local, State, or Federal. 
Subsequent changes (1968, 1983) to the U.S. Military Justice system 
threaded the challenge of incremental ``civilianization'' while 
retaining the flexibility and vigor that reinforces discipline and 
combat readiness with an array of disciplinary options, procedures, and 
protections that satisfied the military, Congress, most critics, and 
the rank and file. The other nations did not protect their military 
personnel in similar fashion and ultimately were forced, in at least 
two cases (the United Kingdom and Canada) by judicial decision, to 
modify their Military Justice systems. The U.S. Supreme Court, in 
contrast, has on numerous occasions upheld the constitutionality of the 
U.S. Military Justice system and its efficacy. The cases prosecuted in 
Iraq and Afghanistan since 2001 reflect the importance of the 
commander's role in Military Justice-especially expeditionary courts-
martial. During Operation Desert Storm in 1991, courts-martial were 
conducted at the most forward maneuver brigade base camp assault 
positions less than 3 miles south of the Iraqi-Saudi Arabian border. 
Trials conducted 2 days before the February ground assault reinforced 
discipline, enhanced morale, and were a signal event in demonstrating 
the system's combination of flexibility, responsiveness, and commitment 
to fairness and due process. Transporting defense lawyers and judges to 
forward assault locations was considered important to overall combat 
readiness. Trials were also conducted in Iraq immediately after the 
February 28 ceasefire. In one of the cases, the military trial judge 
had conducted motions hearings with counsel and the defendant in the 
Kingdom of Saudi Arabia in February and then the Emirate of Kuwait in 
early March before the trial itself later that month in the Republic of 
Iraq near Basra while U.S. forces conducted operations there. The 
contested case with officer and enlisted court members in a combat zone 
less than 20 days after combat operations demonstrated that the UCMJ 
must--and can--meet the national security demands of the Nation without 
compromising the essentials of justice.

    46. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary, and General Altenburg, would their models work 
for the U.S. military? Why or why not?
    General Chipman. The U.S. military should not adopt the military 
justice systems of our allies. First, there is no evidence that changes 
made to our allies' systems would have any effect on the reporting or 
prosecution of sexual assaults or other crimes, especially given that 
the changes were not as a result of problems prosecuting sexual 
assaults offense, but rather as a result of a perceived deprivation of 
due process to accused servicemembers. Second, the U.S. military 
justice system does not suffer from the same perceptions of a failure 
to provide sufficient protections to accused soldiers that spurred the 
changes in our allies' systems. Third, the more centralized disposition 
systems adapted by our allies would generate inefficiencies in the U.S. 
system due to significant differences in the size of our forces and the 
scope and depth of our overall mission.
    The U.S. military has nearly 10 times the number of total 
servicemembers as our largest ally. The U.S. military has more deployed 
servicemembers than some of our allies have total in their force. The 
U.S. military justice system tries more courts-martial than any of our 
allies. For example, our largest ally, the United Kingdom, tried 633 
courts-martial in 2010. The U.S. military tried more than 2,800 in the 
same year. The U.S. also tries courts-martial in combat theaters, 
unlike our allies. Since 2003, the U.S. Army has tried more than 950 
courts-martial in the CENTCOM theater alone. The portability of our 
system that provides efficient, local, and visible justice worldwide is 
essential to maintaining good order and discipline and preserving 
commander authority in conflict and in garrison.
    Admiral DeRenzi. By virtue of experience, skill and training, our 
commanders are the best assessors of their people and are the key to 
sustaining the readiness of their units. If we want to implement 
effective, permanent change in our military-as we have successfully 
done with other issues-we must do so through our commanders, and we 
must do so in a way that responds to factors surrounding sexual 
assaults in the U.S. military.
    From our analysis of sexual assault reports and cases, we know many 
of the factors surrounding the majority of sexual assaults. The 
commander is responsible for addressing these factors by fostering a 
command climate of dignity and respect for everyone and ensuring a safe 
workplace and living areas. Overall, the commanders are responsible for 
good order and discipline. As such, it is essential that commanders be 
involved in each phase of the military justice process, from the report 
of an offense through adjudication under the UCMJ.
    A critical aspect of our focused efforts is ensuring a fair, 
efficient, and effective military justice system. Consistent with 
previous challenges such as drug abuse in the 1970s and early 1980s, 
the UCMJ and Manual for Courts Martial must be able to evolve. We 
recently endorsed a significant change to Article 60 of the UCMJ to 
prohibit a convening authority from setting aside the findings of a 
court-martial except for a narrow group of qualified offenses (those 
ordinarily addressed through NJP or adverse administrative action) and 
require a convening authority to explain any sentence reduction in 
writing. The process the Secretary of Defense followed in proposing an 
amendment to Article 60 of the UCMJ ensured a careful and full 
evaluation of the proposal both in terms of accomplishing intended 
objectives and avoiding unintended second- and third-order effects.
    As with the Department's Article 60 proposal, we must ensure that 
other proposed changes to the military justice system do not adversely 
impact the interests of justice, the rights of crime victims, and the 
rights afforded the accused. To maintain the proper balance of these 
interests and ensure the system remains constitutionally sound and 
responsive in peace and war we must continue to evaluate proposed 
changes to the UCMJ by carefully assessing their overall impact. The 
Response Systems Panel created by section 576 of the NDAA for Fiscal 
Year 2013 should be given the opportunity to conduct an independent 
assessment of the systems used by our allies to investigate, prosecute, 
and adjudicate sexual assaults to determine their viability in the U.S. 
military's context.
    General Harding. No, it appears the driving factors behind the 
changes for our allies were primarily treaty obligations or court 
decisions which do not impact the United States.
    General Ary. As each of our allies' systems is somewhat different 
from each other and from the U.S. system, it is difficult to gauge 
whether the allies' models would work for the U.S. military.
    First, the problems that caused our allies to move to those models 
do not exist in our military (fairness to the accused and 
transparency).
    Second, the U.S. military is vastly larger than any of our allies' 
armed forces, with a significant amount of servicemembers deployed 
outside of the United States or stationed overseas at any given time. 
The U.S. military continues to need a system of deployable military 
justice that provides swift and appropriate justice for the entire 
spectrum of misconduct in any garrison or deployed environment.
    Third, our commander-based system of military justice has proven 
effective in the past, and capable of evolving to new challenges, such 
as drug abuse in the 1970s and 1980s. We recently endorsed a 
significant change to Article 60 of the UCMJ that would prohibit a 
convening authority from setting aside the findings of a court-martial 
except for a narrow group of qualified offenses and require a convening 
authority to explain any sentence reduction in writing. The process the 
Secretary of Defense followed in proposing an amendment to Article 60 
of the UCMJ ensured a careful and full evaluation of the proposal both 
in terms of accomplishing intended objectives and avoiding unintended 
second- and third-order effects.
    Fourth, we are still in the process of determining the effect of 
the recent changes upon our allies' systems and militaries.
    As with the Department's Article 60 proposal, we must ensure that 
other proposed changes to the military justice system do not adversely 
impact the interests of justice, the rights of crime victims, and the 
rights afforded the accused. To maintain the proper balance of these 
interests and ensure the system remains constitutionally sound and 
responsive in peace and war we must continue to evaluate proposed 
changes to the UCMJ by carefully assessing their overall impact. The 
Response Systems Panel created by section 576 of the NDAA for Fiscal 
Year 2013 will conduct an independent assessment of the systems used by 
our allies to investigate, prosecute, and adjudicate sexual assaults to 
determine their viability in the U.S. military's context.
    General Altenburg. No, in my professional opinion. First, the other 
nations' militaries are much smaller than the U.S. military. They're 
much smaller than even the most dramatic and extreme forecasts for a 
reduced U.S. military. The U.S. Active-Duty Force is 8 times larger 
than Israel's or the United Kingdom's, 20 times larger than Canada's, 
and 24 times larger than Australia's. Even taking into consideration 
their active duty strength being a fraction of the size of the United 
States, their military justice systems are not nearly as active in the 
prosecution of serious crimes generally and sex offenses specifically. 
One large U.S. installation like Fort Hood prosecutes more felony-level 
cases annually than any of these four countries. Change to Military 
Justice must account for the enormous resources required. In a larger 
military, like ours, the resource implications are exponentially 
greater. Second, the other nations' militaries have neither the unique 
and diverse responsibilities that the United States imposes on its 
military nor the variety of deployable forces (5 Services, 3 
components, 1,388,028 Active Duty members). The responsibilities 
include humanitarian relief, peacekeeping, combat operations on 
multiple continents simultaneously, special operations 24/7 worldwide, 
foreign military training missions worldwide, and training foreign 
militaries in the United States. Third, none of the other nations' 
militaries deploys as many forces, as often, to as many locations as 
the U.S. military. All of these differences lead one to ask, ``Why 
would the United States emulate another nation's Military Justice 
system?'' We also do not emulate other nation's doctrine; we do not 
emulate other nation's rules of engagement--even allies. Our military 
is unique and requires the Military Justice system that suits it best, 
not one that merely copies dissimilar militaries that happen to be 
allies.

    47. Senator Levin. General Chipman, Admiral DeRenzi, General 
Harding, General Ary,and General Altenburg, how would a requirement to 
prosecute serious cases, like sexual assault, in a civilian court 
rather than in a court-martial affect a commander's ability to maintain 
good order and discipline?
    General Chipman. Soldier discipline is the foundation of a trained, 
focused force capable of accomplishing any mission. Soldier discipline 
is built, shaped, and reinforced over a soldier's career by commanders 
with authority--the authority to address criminal behavior quickly, 
visibly, and locally.
    The role of the commander must be preserved in order for our forces 
to remain effective on the battlefield. One of the key critical tools 
the commander has at this disposal to accomplish the mission is the 
ability to administer military justice. To maintain discipline and 
order, one must have the authority to impose discipline and order. 
Without that authority or the threat of it, there is no expectation of 
consequence. In matters of life, death, and danger, the ultimate tool 
of discipline must be in the hands of the commander on the ground. 
Prosecution of serious cases which arise in theater would be 
significantly delayed or hindered if responsibility for the 
administration of justice was separated from command authority. The 
military justice system is highly deployable and, therefore, more 
responsive to the needs of the commander, the military community, the 
public, and the victim of a serious offense.
    Additionally, the commander is entrusted with the overall well-
being of all of the soldiers within the command. Removal of the 
commander's authority to prosecute serious cases removes a key 
mechanism to be responsive to the needs of the soldiers within the 
command, especially the needs of the victims. No civilian prosecuting 
authority will have a similar level of responsibility for the overall 
well-being of a soldier, either victim or accused, as the commander. 
Commanders genuinely care for their soldiers and must be seen as being 
responsible for the needs of their soldiers. The commander is 
accountable, not only to superior commanders, but also to the civilian 
leadership, American people, and the parents and family members of each 
soldier.
    Admiral DeRenzi. The fundamental structure of the U.S. military 
justice system and UCMJ, centered on the role of the commander as the 
convening authority, is sound. The responsibility, authority, and 
accountability vested in the commander requires the provision of 
appropriate tools to maintain appropriate readiness and safety. 
Military justice is one of those tools.
    A mandate to prosecute serious crimes, such as sexual assault, in 
civilian courts would remove the commander from the military justice 
process and significantly complicate the administration of justice in 
the deployed environment, detracting from good order and discipline.
    As a further complication, many serious crimes have no Federal 
statute equivalent to the offenses under the UCMJ. Therefore, under 
current law, prosecution in civilian courts would rely on state law or, 
in the case of crimes committed overseas, foreign criminal law. 
Servicemembers who commit similar crimes in different states or 
countries would be subject to varying charges and criminal processes. 
Many of the cases currently prosecuted by the military could not be 
prosecuted under state or foreign law. For example, over 75 percent of 
states require a higher degree of intoxication of the victim for the 
perpetrator's conduct to constitute sexual assault. Such disparity in 
process and accountability would negatively impact good order and 
discipline.
    Additionally, while civilian prosecutors weigh a number of factors 
in the decision whether or not to try a case, including witness 
availability, cost, and the likelihood of conviction, civilian 
prosecutors may not factor in the impact on military good order and 
discipline.
    General Harding. A requirement to prosecute serious cases, like 
sexual assault, in a civilian court risks a disconnect between members 
and their commander. From the commander's perspective, the victim will 
lose oversight and control over action taken against one of their own 
and face the prospect of becoming disconnected from one of the most 
significant events affecting members, including the victim and the 
accused, within their organization. Further, unit members will lose 
some measure of trust for the commander, because the message is that 
the commander--who may be responsible and accountable for sending men 
and women into combat--cannot be trusted to handle discipline. In 
short, command involvement must be holistic; it cannot be as effective 
if the most serious form of accountability is severed from command 
authority.
    Sexual assault damages unit cohesiveness and mission accomplishment 
at the unit level. Our commanders need to be at the forefront of the 
fight to reduce sexual assault in the military, using all of the tools 
available to them. Cultural change does not happen overnight. If 
commanders do not have responsibility for prosecution of sexual assault 
offenses, we may promote an environment where commanders are less 
accountable for what happens in their individual units, which in 
practice could stifle the cultural change we seek. The U.S. military 
takes pride in its ``can-do'' attitude and we embrace challenges. Now 
is not the time to declare defeat; if we are serious about cultural 
change we must ensure commanders know their success depends on sound 
judgment in these matters--we are committed to working to get this 
right.
    General Ary. The fundamental structure of the U.S. military justice 
system and UCMJ, centered on the role of the commander as the convening 
authority, is sound. The responsibility, authority, and accountability 
we place in the commander require that we provide him or her tools to 
maintain appropriate readiness and safety, and good order and 
discipline, every day. Military justice is one of those tools.
    A requirement to prosecute serious crimes, such as sexual assault, 
in civilian courts would remove the commander from the military justice 
process and significantly complicate the administration of justice in 
the deployed environment, detracting from good order and discipline.
    As a further complication, many serious crimes have no Federal 
statute equivalent to the offenses under the UCMJ. Therefore, under 
current law, prosecution in civilian courts would rely on state law or, 
in the case of crimes committed overseas, foreign criminal law. 
Servicemembers who commit similar crimes in different states or 
countries would be subject to varying charges and criminal processes. 
Such disparity in process and accountability would negatively impact 
good order and discipline.
    Additionally, while civilian prosecutors weigh a number of factors 
in the decision whether or not to try a case, including witness 
availability, cost, and the likelihood of conviction, civilian 
prosecutors may not factor in the impact on military good order and 
discipline. Commanders, on the other hand, take into account additional 
factors, such as the views of the victim as to disposition, the 
interests of justice, military exigencies, and the effect of the 
decision on the accused and the command.
    General Altenburg. Requiring the U.S. military to prosecute serious 
cases, like sexual assault or murder, in a civilian court rather than 
in a court-martial, would greatly diminish commanders' ability to 
ensure the combat readiness and combat effectiveness of their 
formations. More important, it would greatly diminish the ability of 
commanders to lead the change needed in the service culture regarding 
sexual assault. Only leaders can forge the change that will stop 
military personnel from pressuring victims. Commander 
responsibilities--especially U.S. commanders--are unlike the 
responsibilities of supervisors, bosses, chief executive officers, or 
even other military leaders. I led and managed the two largest judge 
advocate organizations in the U.S. Army that supported field units. I 
was the leader of those organizations for 6 years total, including 
combat and non-combat deployments with each. But I was not a commander; 
I was a staff officer with leadership responsibilities. Commanders are 
directly responsible and accountable to the country's elected leaders 
for the combat readiness and combat effectiveness of their units. Unit 
combat readiness includes weapons training, equipment maintenance, 
esprit, morale, teamwork, physical health, emotional health, and the 
trust in each other to die for each other that ensures combat 
effectiveness in defense of the Nation. Command knows no counterpart in 
the civilian sector. Commanders' role in the U.S. Military Justice 
System is tied intrinsically to their ability to provide the discipline 
necessary to guarantee the combat readiness to defend the Nation, no 
matter where deployed.

    [Whereupon, at 5:09 p.m., the committee adjourned.]

                                 [all]
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