[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]


                                     
 
                         [H.A.S.C. No. 116-85]

                    RACIAL DISPARITY IN THE MILITARY

                       JUSTICE SYSTEM--HOW TO FIX

                              THE CULTURE

                               __________

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON MILITARY PERSONNEL

                                 OF THE

                      COMMITTEE ON ARMED SERVICES

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED SIXTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              HEARING HELD

                             JUNE 16, 2020


                                     
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]





                          ______

             U.S. GOVERNMENT PUBLISHING OFFICE 
42-927               WASHINGTON : 2021 
                                      
  


                   SUBCOMMITTEE ON MILITARY PERSONNEL

                 JACKIE SPEIER, California, Chairwoman

SUSAN A. DAVIS, California           TRENT KELLY, Mississippi
RUBEN GALLEGO, Arizona               RALPH LEE ABRAHAM, Louisiana
GILBERT RAY CISNEROS, Jr.,           LIZ CHENEY, Wyoming
    California, Vice Chair           PAUL MITCHELL, Michigan
VERONICA ESCOBAR, Texas              JACK BERGMAN, Michigan
DEBRA A. HAALAND, New Mexico         MATT GAETZ, Florida
LORI TRAHAN, Massachusetts
ELAINE G. LURIA, Virginia
               Hannah Kaufman, Professional Staff Member
                 Paul Golden, Professional Staff Member
                         Danielle Steitz, Clerk
                         
                            C O N T E N T S

                              ----------                              
                                                                   Page

              STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

Kelly, Hon. Trent, a Representative from Mississippi, Ranking 
  Member, Subcommittee on Military Personnel.....................     3
Speier, Hon. Jackie, a Representative from California, 
  Chairwoman, Subcommittee on Military Personnel.................     1

                               WITNESSES

Christensen, Col Don M., USAF (Ret.), President, Protect Our 
  Defenders......................................................     5
Farrell, Brenda S., Director, Defense Capabilities and Management 
  Team, U.S. Government Accountability Office....................     7
Hannink, VADM John G., USN, Judge Advocate General, United States 
  Navy...........................................................    24
Lecce, MajGen Daniel J., USMC, Staff Judge Advocate to the 
  Commandant of the Marine Corps, United States Marine Corps.....    27
Pede, LTG Charles N., USA, Judge Advocate General, United States 
  Army...........................................................    22
Rockwell, Lt Gen Jeffrey A., USAF, Judge Advocate General, United 
  States Air Force...............................................    25

                                APPENDIX

Prepared Statements:

    Christensen, Col Don M.......................................    49
    Farrell, Brenda S............................................    58
    Hannink, VADM John G.........................................    97
    Lecce, MajGen Daniel J.......................................   112
    Pede, LTG Charles N..........................................    92
    Rockwell, Lt Gen Jeffrey A...................................   106
    Speier, Hon. Jackie..........................................    47

Documents Submitted for the Record:

    [There were no Documents submitted.]

Witness Responses to Questions Asked During the Hearing:

    Mr. Cisneros.................................................   121
    Ms. Speier...................................................   121

Questions Submitted by Members Post Hearing:

    [There were no Questions submitted post hearing.]
    
RACIAL DISPARITY IN THE MILITARY JUSTICE SYSTEM--HOW TO FIX THE CULTURE

                              ----------                              

                  House of Representatives,
                       Committee on Armed Services,
                        Subcommittee on Military Personnel,
                            Washington, DC, Tuesday, June 16, 2020.
    The subcommittee met, pursuant to call, at 12:00 p.m., in 
room 2118, Rayburn House Office Building, Hon. Jackie Speier 
(chairwoman of the subcommittee) presiding.

OPENING STATEMENT OF HON. JACKIE SPEIER, A REPRESENTATIVE FROM 
   CALIFORNIA, CHAIRWOMAN, SUBCOMMITTEE ON MILITARY PERSONNEL

    Ms. Speier. Good afternoon. The Subcommittee on Military 
Personnel of the Armed Services Committee will come to order.
    I would like to welcome the members who are joining today's 
hearing remotely. These members are reminded that they must be 
visible on screen for purposes of advancing their--when joining 
the proceeding--thank you--establishing and maintaining a 
quorum, participating in the proceeding, and voting. Members 
participating remotely must continue to use the software 
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    Members should be aware that there is a slight lag of a few 
seconds between the time you start speaking and the camera shot 
switching to you. To account for this, please do a, quote, 
preamble, whatever that means, unquote, in your remarks before 
you get to your actual question.
    Members who are participating remotely are reminded to keep 
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the time they attend the proceeding. Those members may leave 
and rejoin the proceedings. If the members depart for a short 
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proceeding, they should leave the video function on. If members 
will be absent for a significant period or depart to join a 
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entirely and then rejoin if they return.
    Members are also advised that I have designated a committee 
staff member to, if necessary, mute unrecognized members' 
microphones to cancel any inadvertent background noise that may 
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technical or logistical support issues. Finally, remotely 
participating members should see a 5-minute countdown clock on 
the software's platform display, but, if necessary, I will 
gently remind members when their time is up.
    So, welcome, everyone. Today, we will be focusing on racial 
disparity in the military justice system. We are here to 
discuss the inequalities and injustices that people of color 
experience in the military justice system, including those in 
criminal investigations, courts-martial, and nonjudicial 
punishment.
    The fact that we live in a country with ingrained racial 
bias in no way excuses or justifies the perpetuation of racism 
in the United States military. Our service members commit their 
lives to protect our country. We must commit ourselves to 
ensure that the military treats service members of color 
equally and justly.
    We will not solve this problem by hiding it or denying it. 
We will not solve this problem pretending that it is solely the 
result of uncontrollable societal problems, by pretending that 
our actions do not contribute to the continuation of injustice, 
by refusing to seek change because we are so comfortable and 
confident in, quote, the ways things have always been done, 
unquote. The way things have always been done is wrong. The 
results are repugnant. I hope that all our military leaders in 
the room are prepared to acknowledge the need for a reckoning 
and prepared further to institute bold measures to fix the 
inherent bias in the military justice system in America.
    GAO's [U.S. Government Accountability Office's] most recent 
report found that Black service members were more likely to be 
the subject of recorded investigations and more likely to be 
tried in general and special courts-martial than their White 
counterparts. Importantly, GAO found that the results were 
statistically significant. Racial data on nonjudicial 
punishment was not uniformly collected.
    Protect Our Defenders in their investigation found that 
Black airmen were twice as likely to face nonjudicial 
punishment than White airmen.
    Yet history provides us some solace. The military led the 
way in integrating our Black service members long before 
schools or lunch counters were integrated. In 1948, President 
Truman signed Executive Order 9981, directing equal treatment 
for our Black service members in the military. Subsequently, 
the Army, Navy, Air Force, and Marine Corps complied. Quote: 
``In 1949, the Air Force issued a, quote, Bill of Rights for 
Black airmen, and the Navy proposed a recruiting program to 
enlist Black sailors. The Marine Corps eliminated its 
segregated training platoons in various post facilities,'' 
unquote.
    But integration did not equal acceptance. Racism and 
discrimination, both personal and institutional, continued. 
People of color who wished to make a career in our military 
have faced an uphill fight, and we have done too little to 
assist them.
    Seventy-two years after integration, the fight for equality 
and justice continues. We still struggle to carve out an equal 
place for people of color, struggle to ensure they have the 
same opportunities to serve and advance in their careers, and 
struggle to ensure them equal justice.
    We have to look no further than the military leaders in 
this country, almost exclusively White men. It was heartening 
to note that General Charles Brown has become the Air Force 
Chief of Staff just this week; but 72 years?
    I would like to hear from the first panel what needs to 
change, what needs to be done to bring transparency to the 
system and ensure accountability for every commander who uses 
the military justice system in a biased and discriminatory 
manner.
    For the second panel, I would like to hear how, as the 
senior military lawyer for each service, you could educate 
leaders at all levels to recognize bias in the military justice 
system, and what you can do to ensure that justice is dispensed 
fairly and consistently.
    Before I introduce our first panel, let me offer Ranking 
Member Kelly an opportunity to make his opening remarks.
    [The prepared statement of Ms. Speier can be found in the 
Appendix on page 47.]

     STATEMENT OF HON. TRENT KELLY, A REPRESENTATIVE FROM 
MISSISSIPPI, RANKING MEMBER, SUBCOMMITTEE ON MILITARY PERSONNEL

    Mr. Kelly. Thank you, Chairwoman Speier, and thank the 
witnesses for being here. Thank you for holding this hearing at 
such a fitting time. As Americans across this country of all 
backgrounds are struggling to better understand racial 
disparity across society at large and to take substantive 
actions that actually make a difference, this is a fitting time 
to have this hearing.
    I want to welcome both of our panels to today's hearing. We 
appreciate your attention and commitment to remedy a very grave 
problem that, if left unchecked, could stand to undermine the 
readiness of our Armed Forces.
    Racial disparity is a very real societal problem, and 
across various criminal justice systems, when we see lopsided 
rates of arrests, prosecution, and incarceration, that should 
concern every American. This country has struggled to confront 
and fix that problem for decades, and we continue to do so, but 
as the events of the last several weeks demonstrate, we have a 
long way to go.
    As a former district attorney and city prosecutor, I have 
seen my share of it, and it is something neither I nor any of 
us can ever shy away from or get complacent about. This is a 
problem we all collectively need to confront head on.
    Where I think we can and must make a very real difference 
is in our military. I have served in the military for over 33 
years, commanded at the battalion and brigade levels, and I 
know the very real bond our young warriors share, regardless of 
background.
    I was very proud 2 weeks ago when 371 soldiers from 
Mississippi in the 155 Armored Brigade Combat Team, all 
volunteers, answered the call and deployed to Washington for 
the civil unrest on 3 hours' notice. They were a very diverse 
group, with 43 percent from either African-American or minority 
backgrounds. They trained together. They deployed together. And 
they did their duty as a team together, which is what makes our 
military so great. They answered the call, did what they were 
asked to do, and they did it with honor and integrity.
    They and all service members place their trust in each 
other and their leaders, and that is why our military is so 
formidable. This is in context that lays a bit of the 
foundation for what makes this disparity in military justice so 
troubling for me. Leaders need to do the right thing always, 
treat every soldier, sailor, airman, and Marine with dignity 
and respect, and protect that trust that binds warriors 
together.
    If racial disparity persists, it always has a negative 
impact on recruiting, readiness, and the culture of our 
military. I understand the statistics, the effect, but what we 
need to understand is the cause, fashion the right remedies, 
and we need to do it quickly.
    Section 5401 of the fiscal year 2020 NDAA [National Defense 
Authorization Act] tasks the SECDEF [Secretary of Defense], in 
consultation with the services, to evaluate the causes of 
racial, ethnic, and gender disparities in the military justice 
system and to take steps to remedy disparities.
    I am interested in hearing from our witnesses today on any 
ideas for rooting out the cause of this problem and potential 
solutions and where the Department is in their evaluation of 
causes and remedies.
    I understand the Air Force is initiating an inspector 
general investigation with panels of experts in support to 
explore the problem more holistically. I am interested in 
hearing from all the services about any similar or 
complementary initiatives.
    I do note that the Space Force is not here today. And as a 
new force, I think they have a chance to get it right from the 
start. They can be groundbreaking and groundsetting because 
they start from zero.
    Madam Chairwoman, I think this is a great start and I look 
forward to today's discussion. I want to again thank the 
witnesses for attending today's hearing and share their 
collective expertise with us. And I yield back.
    Ms. Speier. Thank you, Mr. Kelly.
    Each witness will have the opportunity to present his or 
her testimony, and each member will have an opportunity to 
question the witnesses for 5 minutes. We respectfully ask the 
witnesses to summarize their testimony in 5 minutes. Your 
written comments and statements will be made part of the 
hearing record.
    I ask unanimous consent that nonsubcommittee members be 
allowed to participate and ask questions after all the 
subcommittee members have had the opportunity to ask questions.
    Without objection, so ordered.
    Let me welcome our first panel: Retired Colonel Don 
Christensen, President of Protect Our Defenders; and Ms. Brenda 
Farrell, Director of Defense Capabilities and Management Team 
of the U.S. Government Accountability Office.
    Ms. Farrell is joining us via Webex. Welcome.
    All right, let us begin with Colonel Christensen.

 STATEMENT OF COL DON M. CHRISTENSEN, USAF (RET.), PRESIDENT, 
                     PROTECT OUR DEFENDERS

    Colonel Christensen. Chairwoman Speier, Ranking Member 
Kelly, distinguished members of the subcommittee, thank you for 
the opportunity to appear before you to examine the issue of 
racial disparities in the military justice system.
    Like our country, the military has a long and painful 
history of mistreating racial minorities. Black service members 
have continued to be prosecuted and punished at a much greater 
rate than White counterparts. Moreover, they suffer promotion 
rates and are--they suffer lower promotion rates and are vastly 
underrepresented in the officer corps, especially at the 
general and flag officer ranks.
    As part of Protect Our Defenders' ongoing efforts to 
improve the fairness of the military justice system, in 2016 we 
filed a series of Freedom of Information Act [FOIA] requests to 
each service seeking 10 years of data on racial disparities in 
the military justice process. The data was provided to us in 
rates per thousand. After eventually receiving the data, we 
released a study of our findings in June of 2017 that showed 
widespread racial disparities in all of the services. We 
examined a total of 32 years of data, and in every single year 
Black service members were punished at a significantly higher 
rate than White service members.
    Based on our findings, Congress mandated a Government 
Accountability Office review of the disparities, which was 
completed in March of 2019. The GAO also found significant 
racial disparities, but most shockingly, the GAO found that 
none of the services had done anything to find the causes or 
solutions for the disparities.
    As part of its answer to our 2016 FOIA request, the Air 
Force stated it had created, quote, ``a cross-functional team 
led by diversity inclusion experts,'' end quote, to, quote, 
``collect and analyze the data and recommend policy changes, 
process modifications, or additional study, as appropriate.''
    In July of 2017, we filed an additional FOIA request 
seeking the identities and the qualifications of the team 
members as well as the team's findings and recommendations in 
addition to other information. This was the start of a grueling 
3-year-long struggle to force the Air Force to meet its FOIA 
obligations. Thankfully, we were represented by the Yale 
Veterans Legal Services Clinic, which enabled us to file suit 
in Federal Court.
    Despite numerous efforts by the Air Force to conceal its 
findings and recommendations of the team, a Federal judge 
eventually ordered the Air Force to disclose the requested 
documents under the threat of sanctions. The documents that we 
received were startling.
    The panel in a followup study by Air Force Manpower, or A1, 
found that the racial disparities were, quote, ``consistent and 
persistent and getting worse.'' The Air Force admitted that the 
numbers were, quote, ``concerning,'' and the importance of 
having, quote, ``equitable and consistent disciplinary 
processes.'' These findings were made in 2016. And despite 
concluding that the Air Force, quote, ``must clearly address 
the disparity in some way,'' end quote, the Air Force appeared 
to [fail to] act on the team's recommendations and address the 
issues.
    Another disturbing finding of our review of the documents 
is the Air Force legal community's efforts to discredit the 
data showing--their own data showing significant racial 
disparities. Despite the strong conclusions of A1, JA [Air 
Force Judge Advocate General's Corps] has attempted to 
discredit the importance of the data. Specifically, in the 
background paper that JA created in 2016, they claimed that the 
disparity between Blacks and Whites that are punished can be 
the result of a small number of additional actions.
    Lieutenant General Rockwell, the Air Force Judge Advocate 
General, reinforced this message recently in a briefing to the 
Air Force four-stars, where he told them, quote, ``even a few 
additional disciplinary actions have a far greater impact on 
the rate per thousand for Black airmen,'' end quote, due to 
their smaller number. General Rockwell then went on to 
misleadingly illustrate this point by using a ratio of 10 to 1 
of White airmen to Black airmen rather than the actual rate of 
5 to 1.
    The idea that the decades-long disparity can be explained 
by a few additional disciplinary actions is false, and JA needs 
to stop this line of argument. The disparity in nonjudicial 
punishments in calendar year 2019 in the Air Force alone 
represents an additional 520 Article 15s for Black airmen, not 
an additional few, as implied by the legal world.
    In other words, Black airmen received approximately 1,105 
Article 15s last year. If they were punished at the same 
proportional rate as White airmen, they would have only 
received 585. The impact of racial disparities across all the 
services in the last 10 years would easily be in excess of 
10,000 additional extra punishments meted out against Black 
airmen--or Black service members, not a few additional actions. 
The Air Force needs to focus on finding solutions and causes, 
not discrediting the significance of its own data.
    We released our report May 26 of this year, and it had an 
immediate impact. I credit Chief Master Sergeant of the Air 
Force Wright and General Goldfein for acting quickly by 
ordering an investigation. But what must not be forgotten is 
the action initiated by the Air Force last week to investigate 
disparities would not have occurred if they had been successful 
in keeping this information from being disclosed.
    This hearing today would not have been held but for the 
fact we were willing to force the Air Force to disclose damning 
information that it wished to keep hidden. This is a reminder 
of the importance of transparency and why the military must 
faithfully meet its FOIA obligations. How much further could 
the Air Force be in addressing racial disparities if it had put 
the energy into finding solutions in 2016 rather than seeking 
to cover up its embarrassing failures.
    I look forward to any questions you may have.
    [The prepared statement of Colonel Christensen can be found 
in the Appendix on page 49.]
    Ms. Speier. Thank you, Colonel Christensen.
    Before we hear from our next witness, I would like to 
remind members to turn on their screen. The rules require us to 
do that. So we will do so. Thank you. All right.
    Now we are going to hear from Ms. Brenda Farrell from the 
GAO that has recently provided the report.
    Ms. Farrell.

STATEMENT OF BRENDA S. FARRELL, DIRECTOR, DEFENSE CAPABILITIES 
   AND MANAGEMENT TEAM, U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Ms. Farrell. Thank you, Madam Chairwoman. Ranking Member 
Kelly, and members of the subcommittee, thank you for the 
opportunity to discuss GAO's findings to recommendations about 
racial disparities in the military justice system.
    The Uniform Code of Military Justice, the UCMJ, was 
established to provide the statutory framework of the military 
justice system. It contains articles that punish traditional 
crimes, such as unlawful drug use and assault, as well as 
unique military offenses, including desertion. Every Active 
Duty service member of the Army, the Navy, the Marine Corps, 
the Air Force, and the Coast Guard are subject to the UCMJ, 
with more than 258,000 individuals disciplined from fiscal 
years 2013 through 2017. A key principle of the UCMJ is that a 
fair and just system of military law can foster a highly 
disciplined force.
    My statement is based on our report issued in May 2019 on 
the military services' capabilities to assess racial 
disparities, among other matters. Let me briefly summarize my 
written statement. My statement is divided into three parts. 
The first part addresses the collection of race and ethnic 
group information in the military services' investigations, 
military justice, and personnel databases.
    Among our findings, we found that the services did not 
collect information about race and ethnic group in these 
databases. Thus, they were limited in their ability to identify 
disparities, which are instances in which a racial or ethnic 
group was overrepresented. Specifically, the number of 
potential responses for race and ethnic group within the 15 
databases across the services ranges from 5 to 32 options for 
race and 2 to 25 options for ethnic group, which can complicate 
cross-service assessments.
    To address these inconsistencies, we made recommendations 
to DOD [Department of Defense] and DHS [Department of Homeland 
Security], the parent organization for the Coast Guard, to 
collect and maintain race and ethnic information in the 
investigative and personnel databases, using the same 
categories recently established in the uniform standards for 
the military justice databases. DOD and DHS concurred with 
these recommendations.
    The second part of my statement addresses the extent of 
racial disparities in investigations, disciplinary actions, and 
outcomes. Since the services did not collect race and ethnic 
group data consistently, we analyzed actions initiated and 
recorded in each service's investigations, military justice, 
and personnel databases between the years, fiscal years 2013 
through 2017.
    To help ensure we had consistent profiles for service 
members, we merged records using unique identifiers, such as 
Social Security numbers, that were common among a military 
service's database. We used OMB's [Office of Management and 
Budget's] standards to consolidate the various race and ethnic 
values. We conducted multivariant regression analyses to test 
the association between a service member's characteristics, 
such as race and ethnic group, and the odds of a military 
justice action.
    By using this approach with available data, we found an 
association of disparity at stages of the military justice 
process, but findings are inconclusive regarding other stages. 
For example, we found that Black service members were more 
likely than White service members to be subjects of recorded 
investigations in the military criminal investigative databases 
in all of the services. Further, Black service members were 
more likely than White service members to be tried in general 
and special courts-martial in the Army, the Navy, the Marine 
Corps, and the Air Force. Data for the Coast Guard was not 
available.
    The last part of my statement addresses DOD evaluating the 
causes of disparities. We found that DOD has not 
comprehensively evaluated the causes of racial disparities in 
the military justice system. We recommended that they do so to 
better position them to identify actions to address 
disparities. DOD concurred.
    Madam Chairwoman, in conclusion, we believe that, for the 
system of military law to be recognized as fair and just by 
both service members and by the American public, DOD and DHS 
need to take actions to implement the recommendations in our 
May 2019 report.
    That concludes my statement, and I will be pleased to take 
questions that you or the others may have.
    [The prepared statement of Ms. Farrell can be found in the 
Appendix on page 58.]
    Ms. Speier. Ms. Farrell, thank you. You did it with 8 
seconds left.
    So let us start with Colonel Christensen. You know, I was 
stunned in reading the report that you found that, in the Air 
Force, a Black service member was 71 percent more likely to be 
charged for nonjudicial punishment, I believe, for courts-
martial or nonjudicial punishment. In the Army, it was 61 
percent. In the Navy, it was 40 percent more likely. In the 
Marine Corps, it was 32 percent more likely. So, clearly, the 
Air Force is the grossest outlier, although they all appear to 
have statistics that bear a high degree of bias.
    It appears to me that you had to work very hard to get that 
FOIA request complied with. How much time did it take for you 
to actually get that information from the Air Force?
    Colonel Christensen. Well, that is a great question. So 
there were two separate FOIA requests. The first one where it 
just asked for the raw data, we got fairly quickly. The Air 
Force answered I believe within a month with just raw data. But 
in that first FOIA request, they talked about establishing this 
disparity panel to--I thought: Hey, great, they are really 
going to look at this.
    And when we did the follow-up--it has been 3 years since we 
filed that FOIA request, and we still have not got all the 
documents that we requested. For example, I have no idea what 
the qualifications of a single person on that panel were.
    And we had to go to Federal court. We filed suit in 
December of 2017. We did not get a final judgment from the 
judge until March of this year. So it was an onerous task. I 
mean, we were very fortunate to have a great group of Yale law 
students and Yale law professors who were willing to fight 
this, but the average person looking for FOIA evidence cannot 
get that kind of support.
    Ms. Speier. And so it was over a year and 3 months before 
you got the data that you requested, and----
    Colonel Christensen. It was over 3 years.
    Ms. Speier. Over 3 years.
    Colonel Christensen. Three years, yes. It was a 3-year 
struggle. The first request, it took about 6 months for 
everybody to get the information to us. But when it came to the 
disparity panel, its findings and its recommendations, that is 
a 3-year struggle.
    Ms. Speier. So, after your report came out with the 
stunning statistics, when did you hear from the Air Force?
    Colonel Christensen. I have never heard from the Air Force.
    Ms. Speier. From any of the other services?
    Colonel Christensen. I have never heard from any of the 
services. None of the services reached out to us to talk about 
the report or findings.
    Ms. Speier. What do you think the military should do to 
show that it is taking these disparities seriously?
    Colonel Christensen. Well, I think the first thing we need 
to realize is that this is information that I know the Air 
Force has tracked for decades, back to at least the eighties, 
and nothing was ever done. So there is a long track record of 
doing nothing.
    When our first report came out in 2017, you know, that was 
an opportunity. It had been put into the public light, got a 
lot of media coverage. Congress was concerned about it. That 
was an opportunity to show they were going to do something, but 
they haven't.
    General Goldfein, I think, took the first step by ordering 
the investigation, but the thing to remember about that 
investigation, that is an internal Air Force investigation by 
the IG [inspector general] who works for General Goldfein. They 
need to be looking at outside sources to come in and talk to 
them about that, experts on disparity, truly people who 
understand what the causes are.
    And I think one of the things they have to accept, because 
what we have seen, to the limited degree they have looked at 
it, they have tried to look at exclusively unconscious bias. 
They have to accept that there is also actual bias. There are 
actually people who are prejudiced serving in the military. I 
don't think it is most. I don't know if it is many, but we do 
have that. There was a naval officer who just accidentally 
disclosed his racist beliefs on Facebook by livestreaming a 
conversation between him and his wife that was horrifically 
racist. He is an Academy grad and a retired Captain.
    We have to accept that this isn't just unconscious bias, 
that there are people who don't like Black people or other 
minorities and don't want them in the military, and they have 
to try to root this out. But leadership needed to stand up 
decades ago. It needed to stand up in 2016. It needed to stand 
up in 2017. It needed to stand up in 2019. It has to show that 
they really care about this.
    Ms. Speier. Ms. Farrell, what would you want us to make 
sure that the Department of Defense does, moving forward?
    Ms. Farrell. Thank you, Madam Chairwoman.
    As I noted in my statement, we think implementation of our 
recommendations are key. In fact, I think the recommendations 
in our report are a roadmap for DOD, with the final chapter 
being the causes of the disparity and taking steps to make 
corrections.
    I think continued oversight in this area is necessary, 
especially as my colleague on the panel has noted, these 
disparities have been lingering for some time. Now we have hard 
reliable data to help pinpoint where there are differences so 
that DOD can target where to start looking for the causes of 
these.
    So I think continued oversight is necessary. We noted in 
the report that the National Defense Authorization Act for 
Fiscal Year 2020 had provisions that were consistent with 
several of our recommendations. Some deadlines have been set, 
in terms of when DOD must begin to look at, say, the causes of 
disparities, but there is not an end date.
    I think it was recognized that more data was needed, and 
this was going to be a very complex review, but in order to 
make sure that that report is completed, I think congressional 
oversight is going to be very important. Thank you.
    Ms. Speier. Thank you.
    Mr. Kelly.
    Mr. Kelly. Thank you, Chairwoman Speier.
    And, first, the cause of racial disparity across society 
and across the military service is elusive, except for those 
who are blatantly racist, and there are those in every 
organization, including the military.
    What recommendations, if any, do you have that would be 
helpful to the departments in getting after the causation and 
fashioning of remedies and also understanding the causation 
that aren't those that are intentional, those cultural or 
whatever disparities that are caused by culture, what remedies 
would you all have?
    Colonel Christensen. Thank you, Ranking Member Kelly. Well, 
I think General Goldfein has taken a first good step on that by 
actually getting the input from the rank and file of the 
services. We have heard from--at Protect Our Defenders, since 
their first report came out and the second report from, you 
know, a lot of Black service members who are talking about what 
they are experiencing.
    I think the Air Force particularly is an incredibly White 
officer corps. The fighter pilot community is less than 3 
percent Black. And so I think there is a lack of understanding 
what the Black service members and other minority service 
members are facing, the difficulties they face, the lack of 
mentorship.
    In 2015, Air Force Times ran a really good article about 
promotion failures for Black service members, the failure to 
get depth in promotes, the failure to get in-residence PME 
[professional military education]. And so getting the service 
members at the top to understand that there are issues that are 
impacting the way Blacks progress throughout the military and 
other minorities progress is really a key to that.
    Mr. Kelly. And, second, I want to understand the 
significance of years of service on this analysis. As I recall, 
in the GAO report, you included years of service in your 
analysis for the Air Force data but not the other services 
because it closely correlated with rank.
    Are we looking at generally a problem that is focused 
primarily on younger service members across the services, and 
if so, how does this data compare nationally to trends? And for 
you, ma'am.
    Ms. Farrell. Thank you for that question. We did do a 
bivariate regression analysis as well as a multivariate, where 
we would control for certain characteristics, such as years of 
service or rank. And each service model was a little bit 
different. We worked very closely with the services in order to 
understand what was going on with their particular service.
    As far as a comparison between older and younger, we did 
not develop that particular analysis to target in terms of 
that. We are aware of some studies that are done in the private 
sector. But we did not try to make any comparisons of what is 
going on in the military justice system with what is going on 
in the civil justice system.
    I hope that answers your question.
    Mr. Kelly. It does. And back to Colonel Christensen. I want 
to go back. In my career, when I first got in 30-something 
years ago, I think I had the first African-American first 
sergeant in the Mississippi Army National Guard that served 
under my command. So you rarely saw any senior NCOs 
[noncommissioned officers]; I can name on one hand the senior 
O-5, O-6 level officers who were African American in the 
Mississippi National Guard, which Mississippi is 40 percent 
African American.
    Now, I can't count. And many of those are my soldiers who I 
mentored--I personally made a difference--who are sergeant 
majors, sergeant first class, who are first sergeants. The last 
three brigade commanders that followed me as a brigade 
commander are all African American--not because they are 
African American--because they are the best we got, the 
absolute best. So now it is there.
    So you served as part--during the data that we collected 
from 2010 to 2014, you served in the Air Force in one of the 
chief legal roles. So what did you see, and what did you do? 
And now, with the experience you have now, what would you do 
now different to change the outcome of what happens in the Air 
Force, to Colonel Christensen?
    Colonel Christensen. That is a great question. And I agree, 
the Army actually is further ahead in the officer corps being 
African American. The Air Force lags behind the rest.
    What did I see? Look, I never prosecuted someone that I 
thought was innocent. Of course, I don't make the prosecution 
decisions; someone else does, as you know. I don't think it was 
necessarily a case that innocent people were being brought to 
trial. What I thought the problem was is that others were 
getting the benefit of the doubt based upon whether the 
relationship--implicit bias, explicit bias--whatever it was, 
they were getting the benefit of the doubt.
    So, for example, 2 years ago, the Air Force decided to 
prosecute a Black NCO for being 6 minutes late to work, 
literally 6 minutes late to a meeting, excuse me, and he has a 
court-martial conviction. That is a decision that truly should 
not have been made. I don't care if it was an Article 15 
turndown or not, just the optics of it.
    What did I do? Well, one thing I was very concerned about 
and raised as an issue was the lack of Black JAGs [judge 
advocates general]. We do not have enough. We have one of the 
great former ones sitting behind me in Colonel Orr. But when I 
retired, I believe we had 1 of 124 colonels in the JAG Corps 
were African American.
    So I encouraged the African Americans that worked for me to 
try to make a career out of it, to be concerned about it. I sat 
on a promotion--or, excuse me, on a selection board. I 
encouraged the people who also sat on that selection board to 
focus on finding good African Americans to come into the JAG 
Corps because I think part of that experience that they would 
bring in would be important to help with that bias.
    What have I done since? Obviously, filing this report. It 
was important to me. I knew the data was there, and it troubled 
me throughout my career. I never saw leadership really address 
it, and I thought it was important to bring it forward.
    Mr. Kelly. Thank you, Chairwoman.
    I yield back.
    Ms. Speier. Thank you, Mr. Kelly.
    Were White NCOs that were 6 minutes late court-martialed?
    Colonel Christensen. I have never seen anybody court-
martialed with the sole offense of being 6 minutes late to a 
meeting other than this African American.
    Ms. Speier. That is really stunning.
    All right. Mrs. Davis, you are recognized for 5 minutes.
    Mrs. Davis. Thank you. Thank you, Madam Chair.
    And to our witnesses, thank you for joining us.
    Colonel Christensen, first off, can you talk maybe without 
getting in the weeds too much a little bit about how you 
gathered your statistical information? And I just wanted to get 
a sense of your statistical analysis, whether that was very 
different from Ms. Farrell's. And then I will ask Ms. Farrell. 
Just talking about that and whether you think information was 
concealed and sort of your level of confidence, I guess, with 
the analysis and whether it revealed sort of really what you 
are trying to get at here. How do we do that?
    Colonel Christensen. Thank you, Congresswoman Davis. So, 
for the initial FOIA request, we requested from each service 10 
years of data showing their rate per thousand of court-martial 
and Article 15 for African Americans, Whites, and other 
minorities. We received that data from everyone, except for the 
Navy only gave us 2 years of data. The Coast Guard never 
responded.
    The data we got from the Air Force was the best. I knew 
their process would track it well. I am very confident that the 
data that they provide us is accurate. And what we saw out of 
that data was a historical disparity of racial--where Blacks 
were prosecuted and given Article 15s at a much greater rate 
and that it was getting worse, not better. And that is what we 
saw across all the services.
    The Army did not track nonjudicial punishments. The Marine 
Corps only tracked by convictions. So we don't know how many 
cases were charged, just convictions. The Marine Corps was 
interesting, as the more severe the punishment the greater the 
disparity. So, for example, by the time we got to general 
courts-martial in the Marine Corps, the disparity was almost 
2.6 times greater for Blacks than it was for Whites.
    The issue that we dealt with a cover-up was when we did the 
follow-on about the racial disparity panel that the Air Force 
said that they had established.
    Mrs. Davis. And, Ms. Farrell, could you respond to that, 
and are there some differences or areas, again, that you didn't 
feel that you were able to get the information and really had 
some sort of lack of confidence maybe in some of that data?
    Ms. Farrell. Sure. I will be happy to expand upon our 
methodology. Our methodology was for a different time period 
than Don's. His was a much longer. Ours focused on the fiscal 
years 2013 to 2017, which was the latest available data.
    We experienced very good cooperation from the Department of 
Defense. This was a very rigorous analysis, as I noted. We 
obtained the records, all the records for that period between 
fiscal year 2013 and 2017, and 3 categories of 15 databases 
across the services.
    There were some places where data was incomplete, and that 
is the reason we say that we found disparities that were 
statistically significant at certain stages of the military 
justice process. But at other stages, the findings are 
inconclusive, and it is usually inconclusive for two reasons. 
One, incomplete data. Not that any of the services did not 
provide the data, but the data was incomplete, such as 
nonjudicial punishments: the data was incomplete for the Army 
and the Navy as well as the Coast Guard. So it was very 
inconclusive.
    But we received very good cooperation from DOD. The 
analysis that GAO did in cobbling all this information together 
takes time. It is not something that DOD could do routinely in 
an efficient manner. That is why it is so important for them to 
carry out the recommendation to adapt their personnel and their 
investigative databases to have the same uniform standards as 
the military justice so that, going forward, especially if the 
causes of disparities are identified and steps are taken to 
remedy those, you want to be sure you have good data in place 
in order to be able to find that progress.
    Mrs. Davis. Yeah. Okay. Thank you. And I hope that, in our 
next discussion, we will get into those causes, certainly.
    But, Colonel Christensen, going back to you very, very 
quickly, I know you tend to, and really in your analysis felt 
it was important to, look at legally trained military 
prosecutors. But I guess within the judicial system, we would 
probably all agree that there is always--there is some bias 
there. How do you think that is different?
    Colonel Christensen. In the military, how could it be 
different, if I am understanding your question?
    Mrs. Davis. Yes. Well, I think, rather than leaning on the 
commanders, the military, legally trained military prosecutors, 
is that a different kind of bias that they would bring to their 
positions, recognizing that there is always some implicit bias 
within the judicial system, of course, as well as in the 
military as well as in society, but do you see that as 
different, and why would that recommendation be there?
    Colonel Christensen. Well, as I agree with Ranking Member 
Kelly, there is always bias no matter what system we have, and 
that is unfortunate.
    The reason we talked about that is the bias that the 
command decision who--the commander who has the power to make 
that decision is he knows the accused. He also knows the person 
he chose not to prosecute or not to give an Article 15 to 
whereas, as a prosecutor, I never knew anybody until I walked 
into court. So I could not have a bias against him one way or 
the other.
    And so that is where I think the key is, is there is an 
inherent bias in the chain of command when they know the people 
involved. If they haven't established the same kind of 
relationships with the African Americans that work for them as 
they have with the White service members that work for them, I 
think it is going to have a negative impact.
    Mrs. Davis. And you feel that the prosecutors wouldn't 
bring that kind of bias at least in. Maybe, what are other 
biases that they bring?
    Ms. Speier. Actually, Mrs. Davis, you have gone over 1 
minute 51.
    Mrs. Davis. Great. All right. Thank you. Thank you, Madam 
Chair.
    Ms. Speier. All right. Next we have Ms. Escobar. You are 
recognized for 5 minutes.
    Ms. Escobar. Thank you so much, Madam Chairwoman, and many 
thanks to our panelists.
    You know, Colonel Christensen, it is really interesting 
that you mentioned the Coast Guard because I just recently read 
a report about the Coast Guard, which obviously is under the 
Department of Homeland Security, not DOD.
    But the report by the inspector general found that 
incidents of racial harassment were not--there were no 
consequences for cadets who used racial slurs against their 
fellow cadets, absolutely no consequences, and there was a 
history of this. And so I think one of the things that we are 
going to need to do is really kind of take a look at really a 
broad sense of causality, including whether folks are punished 
for using racial slurs, et cetera.
    But to both of you, and I know we are going to get into 
this more in the next panel, but as we are talking about the 
causative factors, what would you say, just based on the 
research that you have done, what are the causative factors in 
these disparities in the research that you have found?
    Colonel Christensen. Well, and that is an excellent 
question, and it goes beyond what my expertise is and what the 
data that we have is. The data shows this is a problem. And 
that is what we were hoping that the military, each service 
would do once the problem was brought publicly to light to 
them, that they would look for the causes, and we were limited 
in what access we have on that.
    But, just as someone who served for 23 years and has served 
all that in the military justice world, I do think that the 
racial makeup, especially of the Air Force leadership, without 
a doubt has some impact on the disparities that we have.
    General Hyten, when he testified at his nomination hearing 
to become the vice chair, when he became the vice chair, said 
that basically the issue of race was behind the military, and 
that when he looked at the service, it was color-blind as he 
did it.
    You know, and that is the problem. You know, there are two 
four-star African-American generals in the entire DOD. So we 
really need to focus on the inclusion of all races and their 
voices in understanding the issues that young Black service 
members are facing.
    Ms. Escobar. Thank you so much.
    Ms. Farrell, your thoughts and anything come to mind as you 
were conducting your research?
    Ms. Farrell. One of our objectives was to determine what 
steps DOD had taken to determine causes of disparities. And 
what we found was there have been some steps but not a 
comprehensive review. By steps, there are climate surveys that 
gain information on perspectives of service members. But going 
back to the seventies, the eighties, the nineties, there really 
hasn't been a focus on the military justice system and causes 
for disparities.
    We, again, think that our report pointing to certain stages 
of the military process can help prioritize where to start 
looking for those causes, and that is a recommendation DOD has 
agreed with. But, also, in the National Defense Authorization 
Act for 2020, there is a provision consistent with that that by 
I believe it is this month DOD will proceed with such a study, 
commence it. Thank you.
    Ms. Escobar. Thank you both. I am quickly running out of 
time. I just wanted to make note for something, about something 
with my colleagues and with the chairwoman. We have been 
talking about this issue for the last year and a half, and it 
really is important in terms of not just African-American 
service members but Latinos.
    And, also, I am very curious about the impact on immigrants 
in our services, especially when we have a Commander in Chief 
who [inaudible] on disparate treatment as well.
    But one of the things that we have found is, at the highest 
levels of authority within the military, it is even less 
diverse, and it may be because of the adverse military judicial 
system encounters that you all have pointed out. That may be 
one of the underlying causes.
    I know I am just about out of time. Thank you both again 
for your work, and I yield back.
    Ms. Speier. Thank you, Ms. Escobar.
    Mrs. Luria, you are now recognized for 5 minutes.
    Mrs. Luria. Thank you.
    And I want to thank Mr. Christensen and Ms. Farrell for 
joining us today. And I think that this really highlights 
something. The saying is that justice is blind, but it is 
showing that justice is not color-blind.
    And having served myself in the military, having been a 
commanding officer and part of the NJP, nonjudicial punishment, 
process within the command, I think that, you know, 
understanding that and the lack of data that has been collected 
and the lack of reporting requirements that existed, I think 
that that is very useful for us to hear as a committee to 
understand the scope of this problem and get after, you know, 
true core issues of why a disparity could exist.
    Ms. Farrell just mentioned in her comments a couple minutes 
ago the fact that there is command climate data, command 
climate survey data as well that I think can be informative on 
this. You know, it is part of the bigger picture, because we 
don't necessarily have accurate data for nonjudicial punishment 
in all parts of the military justice system to go off of.
    But, you know, Ms. Farrell, can you elaborate on how 
command climate data could help inform, you know, what the 
previous questions you got from Ms. Escobar. Could you envision 
a way that we could try to incorporate that or require the 
incorporation of that into the analysis? Because that is taken 
regularly, it is taken from all commands, and it is taken from 
the perspectives of people who are not only involved themselves 
personally in an accusation or going through the nonjudicial 
punishment process.
    So can you elaborate for everyone on how that could maybe 
be a piece of the data that we need to fully analyze?
    Ms. Farrell. Sure, I would be happy to elaborate. Command 
climate surveys are required. I believe DOD has gotten much 
better in the past few years in making sure that they be 
administered, thanks to a little help from Congress.
    They are designed to help an incoming commander understand 
the working environment and what issues he or she may need to 
focus on while they have that command. There is usually a 
standard set of questions that are answered, and then the 
incoming commander can ask some additional questions.
    Climate surveys have been very beneficial to obtain 
perceptions of service members in many personnel areas. I have 
worked with them looking at hazing as well as other sexual 
assault issues. So I think the surveys could be reviewed in 
order to see if there is something that could be gained.
    We do have to be careful about survey fatigue. We hear that 
from DOD all the time. But this comes down to, where is this 
issue of racial and ethnic disparities in DOD's priorities? So 
command climate surveys could have some issues incorporated.
    The Status of Forces is another survey of the Active Duty. 
There is also another one for the Reserve Component and 
civilians, but that is another one that there are standard 
questions, but often the questions change. But when an issue is 
emerging, often DOD uses the Status of Forces Survey to ask a 
set of questions over a period of a few years to try to dig a 
little deeper to see what is going on.
    So there are survey instruments already in use that could 
be used to perhaps obtain some more information about this 
particular issue in the military justice system.
    Mrs. Luria. Well, thank you for that, and I think that, you 
know, as we look at, you know, how we try to collect data to 
assess the situation to identify the root causes that we could 
consider that there is additional data on top of just 
statistical data about the types of NJP that happen. And I do 
think it could also be somewhat difficult, and I think we have 
to be very clear on how we collect that data because, you know, 
different things stop at different phases within the NJP 
process. Some of them may never reach captain's mast, for 
example, or office hours or whatever term the service uses for 
that process, and some may stop short of that with just 
assigning extra military instruction and other things.
    And I think that there is also an aspect in the NJP process 
with the attempt to maintain good order and discipline, attempt 
to use the process when there is a supposed infraction to 
improve the performance of the sailor or the soldier with 
things such as extra military instruction and things like that, 
which are clearly required to address specifically the issue at 
hand and are not viewed as punishment but are viewed as, you 
know, ways to improve their performance and make them better 
soldiers or sailors.
    So I think that, you know, definitely collecting the data 
is very important, but I appreciate your work in researching 
this. And I think that we do need to do more to understand the 
problem more to get at the root causes.
    And training is also an issue as well. I think that, as a 
commanding officer in the Navy, with specifically the Navy 
legal justice course, and, you know, then there is not really 
any specific thing that I recall in that training that 
addressed specifically looking at racial disparities or uniform 
application of the justice system.
    Sorry. I apologize. I have run over, Madam Chair, but thank 
you again, and I look forward to the next panel as well.
    Ms. Speier. Thank you, Mrs. Luria.
    Now, Ms. Haaland, you are recognized for 5 minutes except 
you are not there. We will come back to you.
    Mr. Cisneros, you are recognized for 5 minutes.
    Mr. Cisneros. Thank you, Madam Chairwoman. And I want to 
thank our panelists for being here today.
    Colonel Christensen, look, I am a product of what used to 
be the Navy's affirmative action program. I worked through this 
program called Broadened Opportunity for Officer Selection and 
Training. It took enlisted personnel, people of color, helped 
prepare them for college. So it was part of the Navy's process 
to get more people of color into the officer ranks.
    You know, as you stated, Colonel, 78 percent of our 
military officers are White; 8 percent are African American. It 
is even lower for Asians and Hispanics. You know, when you talk 
about the impact of the lack of representation in the officer 
ranks and how it has disparities in our military justice 
system, and you also mentioned about, you know, when you were 
in the Air Force, a lack of diversity in the JAG Corps there.
    But, really, what do we need to do as far as recruiting 
goes to bring these numbers up so that really we are recruiting 
a more diverse officer corps, really help solve this problem in 
the criminal justice system in the military of the disparities 
in it?
    Colonel Christensen. Thank you, Congressman. Well, I think, 
you know, prioritizing, definitely, as you talked about, that 
opportunity to go from a young enlisted Black service member to 
become an officer, how do we encourage that process.
    What are we doing to make sure that the officers have 
mentorship? And that is so key. How far you progress in the JAG 
Corps or any other part of the service depends on who you have 
for mentors. And so do we have people looking out for those 
young Black officers and making sure that they can progress? 
Are they getting the opportunities to go to professional 
military education in residence, which is a key to getting 
promoted, especially to the general officer or flag officer 
rank, and then making sure that they are operating in a good 
environment.
    So a story just broke I believe this weekend about the 
racial problems at West Point and that the cadets there, the 
African-American cadets, I believe 25 percent of them said that 
they have been subjected to racial abuse. So we have got to 
make sure that, at the institutions that are giving us our 
future leaders, that the people serving and trying to get that 
commission are treated with respect.
    Mr. Cisneros. Ms. Farrell, you know, in the 2019 GAO 
report, it recommended that the Army, Navy, and Coast Guard 
collect data such as, you know, race, ethnicity, gender, 
offense, and punishment for all nonjudicial punishments.
    Can you elaborate on the importance of collecting this data 
and update the committee on the services' progress in this 
area?
    Ms. Farrell. Yes. This is an area where the data was 
inconclusive because those three services had incomplete data 
to determine the extent of disparities in the nonjudicial 
punishments.
    What happened was, in conducting our data reliability 
check, we identified the number of nonjudicial cases in the 
Court of Appeals for the Armed Services and the reports from 
fiscal year 2013 to 2017 and compared those numbers with the 
numbers in the services' military justice databases as well as 
their personnel databases, and we found that, for the Army, 
roughly 65 percent of the reported cases were not in their 
databases. And those reported cases are in the report by the 
way that goes to Congress and the Secretary of Defense. About 8 
percent of the cases that were reported in the annual reports 
were not in the Navy's database, and about 82 percent of the 
cases for the Coast Guard were reported out but not in their 
databases.
    So we made a recommendation that these three services have 
complete information on nonjudiciary punishments.
    After discussions with them, there was some concerns about 
how they would do that. So the recommendation is actually to 
determine the feasibility, including the benefits and the 
drawbacks of having complete nonjudiciary punishment data.
    We know that the Army and the Navy have moved forward and 
decided that they want to have this information and perhaps you 
can learn more about that on the next panel.
    The Coast Guard plans to make a decision about the 
feasibility of collecting such data in September of this year.
    Mr. Cisneros. Thank you. I yield back.
    Ms. Speier. Thank you, Mr. Cisneros.
    Ms. Haaland, followed by Mrs. Trahan, and, finally, Mr. 
Brown.
    Ms. Haaland, you are recognized for 5 minutes.
    Ms. Haaland. Thank you, Chairwoman. Chairwoman, I don't 
have any questions at this time for this panel, but I will be 
here for the next panel. Thank you. I yield back to you.
    Ms. Speier. Alright, thank you. Mrs. Trahan, you are 
recognized for 5 minutes.
    Mrs. Trahan. Thank you Madam Chair.
    So I will just put my bias out there. I don't generally 
believe that it takes years to change. I do believe that it 
happens closer to an instant, especially when we have a strong 
culture and strong leadership, which is something I believe we 
pride ourselves in. So that being said, I will just ask the 
question to Colonel Christensen and Ms. Farrell.
    Do you believe convening authority should be left to 
commanders, or do you think that the current process increases 
the risk of unconscious or even overt bias within our military 
justice system?
    And I will just add my second question would be, do you 
believe that if the convening authority were transferred to a 
separate entity within the Department it could decrease the 
racial disparity highlighted in these reports?
    Colonel Christensen. Well, thank you for your question. 
While that is a core principle of mine, is that the military 
become a part of the 21st century and have prosecutors make 
prosecution decisions versus convening authorities, I think the 
command-controlled system of military justice, as I talked 
about before, they know the people involved, it is going to 
cause a bias no matter how good the commander is, no matter how 
desirous they are of not having a bias, they are going to have 
a bias because they know the people who are making the, that 
have been alleged to have committed a crime.
    I think that bias is going to carry over throughout the 
process because of the way the chain of command works. If you 
have a convening authority system, when you have a convening 
authority system, they weigh very heavily on the views of the 
commander who knows the people who have committed the crime. A 
prosecutor-based system, which is not perfect--no system is--
but as I said before, when I prosecuted a case, the first time 
I laid eyes on the accused is when I came to court. I didn't 
know who they were; race wasn't an issue unless for some reason 
it was an identification issue as part of the reporting 
investigation. And so I think it does not eliminate but reduces 
the chance that racial biases will impact the decision made by 
the person deciding whether a case should go to trial or not.
    Ms. Speier. And her second question? What was your second 
question, Mrs. Trahan?
    Mrs. Trahan. Thanks. It was if I--I think Colonel 
Christensen answered it. But it was if he believes if the 
convening authority would transfer to a separate entity within 
the Department it would decrease the racial disparity.
    I will ask Ms. Farrell if she has anything to add; 
otherwise, I do have maybe just another follow-up.
    Ms. Speier. Go right ahead.
    Ms. Farrell. Thank you. I would say, to answer your 
question, we need to see DOD's evaluation of the causes of 
disparities at these different stages in order to pinpoint 
exactly what needs to be done in terms of correction along the 
lines that you are talking about.
    Mrs. Trahan. And so are the commanders today who are 
holding convening authority, are they receiving training on 
these issues?
    Are we arming them with the tools to recognize racial 
disparities and ethnic inequities so that they may address them 
appropriately?
    Colonel Christensen. Well, that is probably a question 
better for the other panel to answer. My understanding is the 
Air Force has said they are now doing that. I don't know. But 
as the GAO report found in May of 2019, it doesn't seem like 
anything had been done by that time to find causes or 
solutions.
    Mrs. Trahan. Thank you. I will wait for panel 2. I yield 
back.
    Ms. Speier. Thank you, Mrs. Trahan.
    Mr. Brown, you are recognized for 5 minutes.
    Mr. Brown. Thank you, Madam Chair. Thank you for allowing 
me to waive on to this panel. I am going to have a longer 
statement to make before the second panel. So I will just jump 
into some questions for our panelists.
    For Colonel Christensen and Ms. Farrell, thank you for 
being here.
    This is the concern I have on looking at what we did in the 
NDAA to ask GAO to study this issue and then in the NDAA 
putting to the DOD to come back with an assessment of what the 
causes are. And here is the concern I have, so I need some 
help.
    Colonel Christensen, you said that you witnessed a case 
where a Black man was 6 minutes late for formation. He was 
court-martialed. You never saw that with a White service 
member. When you talk about implicit racial bias, typically, in 
that case, if you would have brought to that commander, ``Hey, 
look you just sent to court-martial a Black guy, and in the 
last month, we have had three White guys, 6 minutes, 7 minutes, 
10 minutes late, and you didn't do it,'' often with implicit 
bias, that commander might say, ``Ah, wow, you are right; let 
me take a look.'' It is often benign. It is unknown. When 
brought to the attention of the offender, if you will, they are 
willing to make corrective action.
    From everything, Mr. Christensen, that you said about your 
efforts to get information from DOD, their unwillingness to 
explore the causes of this disparate racial impact in military 
justice, I am concerned that, in the GAO study, we are putting 
to the DOD too much responsibility to come up with guidelines 
for how to address disparities, discover or research the causes 
of disparity, and develop a uniform set of demographic criteria 
or classifications so we can better understand it.
    Here is my question: What can Congress do today to ensure 
that DOD is doing these things in the GAO report, that gets 
beyond the resistance that you and your organization, Colonel 
Christensen, have seen?
    What are some specific things that we should be doing?
    Colonel Christensen. Well, a great start is what we are 
doing right now. It is definitely putting the DOD on notice 
that this is something Congress is concerned about. But I think 
Congress needs to send a message to the various services that 
they do not expect that this is going to be a quick solution. 
So, for example, my understanding is the Air Force IG wants to 
have the investigation wrapped up by the end of July. That is 
ridiculous. This is a decades-long problem. You are not going 
to find problems and solutions and causes in 2 months.
    The second thing is the Congress needs to make clear to the 
DOD that they expect them to be reaching to outside entities to 
help with the solution: true experts on disparity, true experts 
on what causes racial bias, true experts on finding racial 
discrimination. And then, as has been required in the most 
recent NDAA, that they continue to report back to Congress with 
the same vigor that they do with the sexual assault report that 
is released each year. That has to have the same kind of 
detail, the same kind of depth to it.
    Mr. Brown. Ms. Farrell.
    Ms. Farrell. Well, I will pick up where Mr. Christensen 
left off in terms of external reporting. That is one of the 
recommendations that we have seen progress on in terms of DOD 
will, is expected to include because of the 2020 National 
Defense Authorization Act; DOD is expected to include 
demographic information in its annual reports going forward. So 
that is going to help with the transparency. But that is still 
quite a ways off. I think congressional oversight, periodic 
congressional oversight is going to be necessary. I agree that 
doing an evaluation of the causes is not something that can be 
done in just a few months. Having a--prioritizing where DOD is 
going to look at, which stages, in order to get behind and also 
bring in consultants is going to be very important.
    The NDAA requires DOD to commence the study for evaluating 
causes this month. There is no end date. Again, it is going to 
be very important, I think, for the House Armed Services 
Committee, specifically this subcommittee and others, to have 
DOD brief or have another hearing to understand what progress 
they are making toward that final report on the causes.
    Mr. Brown. Thank you. I yield back, Madam Chair. Thank you 
once again for allowing me to waive on.
    Ms. Speier. Thank you, Mr. Brown.
    You are absolutely right. We need to have another hearing, 
and I can promise you that there will be one. I want to thank 
Ms. Farrell and Colonel Christensen for your testimony here 
this afternoon. Let me just end with this statement, and see if 
you agree with it.
    Conviction rate at special and general courts-martial 
remain about the same for Black and White service members, yet 
significantly more of Black service members are brought to 
court-martial. That appears to show two things: one, that 
court-martials are not convicting because of race but evidence, 
and, two, that commanders are preferring charges on more Black 
service members for reasons other than the strong weight of 
evidence against them.
    I guess finally let me just ask you, is that a fair 
statement?
    Colonel Christensen. I do think that is a fair statement. I 
honestly believe our court members try to do the right thing, 
and I don't believe I ever saw a single panel where I thought 
that they were racially driven in their verdict. I do worry, 
again, that the decision, really what we are talking about is 
that the White service member gets the benefit of the doubt; 
their case doesn't go forward, their case is handled at a 
different level than what the Black service members are.
    Ms. Speier. Thank you.
    Ms. Farrell.
    Ms. Farrell. I did not hear all of that question, but I 
think you were asking questions related to what GAO identified 
at the beginning of the military justice process and what we 
see at the end, and it is quite a different picture. As we have 
discussed, actions are more likely to be identified at the very 
beginning of the judicial process when a service member is 
under investigation, by when we look at outcomes in terms of 
convictions and punishments. For convictions, we found that 
there was no statistically significant difference among races 
in terms of conviction; and similar results for punishments, no 
statistically significant difference except for Black service 
members in the Navy were less likely to be dismissed or 
discharged after a conviction, so that they are at opposite 
ends of what we see in terms of disparities in the beginning of 
the system and where we see them end up at the end.
    Ms. Speier. Again, thank you both very much for your 
testimony. We will take a short recess so we can bring our 
second panel to the table and hear from them.
    [Recess.]
    Ms. Speier. Welcome back everyone. We will bring this 
hearing to order once again. It is my pleasure now to introduce 
our next panel. We will start with Lieutenant General Charles 
Pede, Judge Advocate General for the United States Army; 
followed by Vice Admiral John Hannink, Judge Advocate General 
of the U.S. Navy; Lieutenant General Jeffrey Rockwell, Judge 
Advocate General for the United States Air Force; and, finally, 
Major General Daniel Lecce, the Staff Judge Advocate to the 
Commandant of the Marine Corps.
    General Pede, we will begin with you.

STATEMENT OF LTG CHARLES N. PEDE, USA, JUDGE ADVOCATE GENERAL, 
                       UNITED STATES ARMY

    General Pede. Madam Chairwoman, Ranking Member Kelly, and 
members of the committee, thank for this opportunity.
    Ms. Speier. I am sorry, General, could you move that 
microphone a little closer to you.
    General Pede. Absolutely. How is that.
    Ms. Speier. Better. Thank you.
    General Pede. Madam Chairwoman Speier, Ranking Member 
Kelly, and members of the committee, thank you for this 
opportunity. We meet on a topic of vital importance to our Army 
and to our Nation: ensuring that every soldier who swears to 
defend our Constitution is guaranteed its foundational promise, 
equal justice under the law. This has been my charter across 32 
years of service, and it is the commitment of the Army Judge 
Advocate General's Corps and the Army leadership.
    As recent events made clear, that promise remains unfilled 
for too many in our Nation. Just 2 days ago, we in our Army 
celebrated its 245th birthday. Because of the service and 
sacrifice of many, I believe that today our Army represents our 
country's best ideals more than ever. Yet I also believe that, 
like the country we serve, there is still much more that must 
be done.
    Our hearing today reminds us of the origins of our Uniform 
Code of Military Justice. It was born out of a concern for 
fundamental fairness for those suspected of a crime. Our code's 
due process guarantees--zealous defense, impartial judges, and 
robust appellate review--are its cornerstones. Over the years 
and thanks to the work of many on this committee, the code has 
been reformed and improved while its central purposes have been 
preserved, promoting justice while ensuring discipline. These 
are the pillars upon which our combat effectiveness rests, and 
they are the reasons why our Army is the best in the world. But 
as good as our justice system is, we can never take for granted 
its health or its fairness. It requires constant care, by well-
trained law enforcement, educated commanders, and qualified 
attorneys working together with the Congress, we have brought 
our justice system much closer to the full realization of equal 
justice for all. But close is never good enough.
    In May 2019, the GAO found racial disparities in our 
justice system. While it reached no conclusion on the causes of 
these disparities, this report raises difficult questions, 
questions that demand answers.
    Sitting here today, we do not have those answers, so our 
task is to ask the right questions and find the answers. I am 
joined by my partner in this effort, the Army's Provost Marshal 
General, my partner in this effort, Major General Kevin Vereen. 
General Vereen supervises our military police, our criminal 
investigators, and our criminal laboratory. Based on the GAO's 
findings, the effort to examine our system is a shared 
responsibility--with us and with our commanders. As we assess 
this issue from investigations to command decisions to the 
disposition phase, we must do so with a common framework and 
the right stakeholders.
    That effort must start with seeing ourselves. This began 
last year as we began implementing the GAO's recommendations. 
We are also working with the other services to execute section 
540I of the NDAA. That now visionary statute directs us to 
identify, investigate, and resolve potential disparities in 
justice.
    Finally, we continue to improve our internal data sharing. 
Recently, General Vereen and I established a link between his 
law enforcement database and our justice database, allowing a 
degree of interoperability and transparency that never existed 
before.
    These efforts began before the recent tragic events and the 
national conversation that followed our Nation--followed across 
our Nation, and within our formations. As that conversation 
demonstrates, data alone cannot tell the full story. We must 
look beyond the data and ask the difficult questions. General 
Vereen and I, along with Army leaders, need to look hard at 
ourselves. With commanders we must look at the causes, and we 
must understand how preconceptions and prejudice can affect 
both the investigation and disposition of misconduct. While my 
experience tells me we have an extraordinarily healthy system 
of justice, I also recognize we simply do not know what we do 
not know. And it is our job to discover what needs fixing and 
to fix it.
    To do this, I have directed a comprehensive assessment with 
the Provost Marshal General to get left of the allegation, left 
of the disposition decision, to examine why the justice system 
is more likely to investigate certain soldiers and what our 
investigations and command decisions tell us about this issue.
    Finally, we know that each of us is shaped by our own 
backgrounds and experiences. As the Secretary, our Chief, and 
our Sergeant Major recently reminded us and which I echoed in 
my own message to my corps, leaders of all ranks must listen 
with compassion and humility.
    I believe our justice system is one of the best in the 
world, but I also know it is not perfect. A justice system must 
be both just for, and seen to be just by, all. We have much to 
learn and more work to do. General Vereen and I, along with the 
Army leadership, look forward to working with this committee, 
to understand the problem and to address it. Thank you.
    [The prepared statement of General Pede can be found in the 
Appendix on page 92.]
    Ms. Speier. Thank you, General Pede.
    Admiral Hannink.

STATEMENT OF VADM JOHN G. HANNINK, USN, JUDGE ADVOCATE GENERAL, 
                       UNITED STATES NAVY

    Admiral Hannink. Chairwoman Speier, Ranking Member Kelly, 
thank you for the invitation to testify on the issue of racial 
disparity in military justice.
    The Department of the Navy guidance emphasizes several 
things about equal opportunity. The first is that sailors and 
Marines are our most precious resource; second, that unlawful 
discrimination undermines a unit's ability to function 
effectively and cannot be tolerated; and, third, that we must 
overcome any bias or any stereotype that diminishes 
cohesiveness, camaraderie, or morale.
    In a recent message to the fleet, Admiral Gilday, the Chief 
of Naval Operations, commented on this. He said: In the Navy, 
we talk a lot about treating people with dignity and respect. 
In fact, we demand it. It is one of the things that makes us a 
great Navy.
    And then, observing recent events in our Nation, Admiral 
Gilday added: We can't be under any illusions about the fact 
that racism is alive and well in our country.
    And I can't be under any illusions that we don't have it in 
our Navy. We cannot have those illusions.
    And so the Navy emphatically and unequivocally denounces 
racism. It is antithetical to our core values of honor, 
courage, and commitment. It is antithetical to our obligation 
as service members to support and defend the Constitution and 
to help protect the rights afforded to all Americans.
    The military justice system must operate without 
discrimination, without racism. All sailors must be able to 
have confidence in the fairness of the system. A May 2019 GAO 
report identified some disparities related to race and 
ethnicity. To summarize those that were identified for the 
Navy, Black sailors were more likely than White sailors to be 
the subject of an investigation in the database used by the 
Naval Criminal Investigative Service and other Navy law 
enforcement elements. The same for Hispanic service members. 
Black sailors were also more likely than other White sailors to 
be tried by a general or special court-martial. So were 
Hispanic sailors.
    When it came to assessing the results of court-martial, 
there was no significant difference between the conviction 
rates for Black, Hispanic, or White sailors. And as the GAO 
witness noted on the last panel, for those found guilty, Black 
sailors were less likely than White sailors to receive the 
punishment of discharge or dismissal.
    The GAO was correct that there may be disparities at 
different points in the system, and we appreciate the 
recommendations they made to help.
    When those are combined with the requirements of section 
540I of the fiscal year 2020 NDAA, my hope is that will result 
in improved data collection, a process to determine when that 
data should be reviewed, and an evaluation to identify the 
causes of the disparities.
    Now, regarding data collection, the Navy and Marine Corps 
case management system has been updated to collect the race, 
ethnicity, and gender of victims and accused of each general 
and special court-martial.
    I have more work to do in two areas. The first relates to 
summary courts-martial because the Navy prosecution offices 
often are not involved directly in the summary courts-martial, 
and we are reviewing procedures needed to collect the 
associated data. And as the GAO witness observed, the second 
relates to nonjudicial punishment; they recommended the Navy 
consider how we might maintain nonjudicial punishment 
information in a database and how to implement this 
recommendation remains under review.
    The Navy is also taking steps to prevent racial bias 
through training. This is not a panacea, but we can't let up. 
The Naval Leadership and Ethics Center provides training on 
unconscious bias for prospective commanding officers, executive 
officers, and other leaders. The Naval Criminal Investigative 
Service trains agents on diversity and inclusion, on 
unconscious bias and cross-cultural communications to prevent 
racial profiling in investigations.
    We also provided training on unconscious bias and inclusion 
and diversity within the Judge Advocate General's Corps 
community.
    The Navy is committed to ensuring the military justice 
system is fair for everyone. I look forward to working with you 
to improve our data collection and to identify, understand, and 
address these disparities. Thank you.
    [The prepared statement of Admiral Hannink can be found in 
the Appendix on page 97.]
    Ms. Speier. Thank you, Admiral Hannink.
    General Rockwell.

 STATEMENT OF LT GEN JEFFREY A. ROCKWELL, USAF, JUDGE ADVOCATE 
                GENERAL, UNITED STATES AIR FORCE

    General Rockwell. Madam Chair Speier, Ranking Member Kelly, 
distinguished members, thank you so much for the opportunity to 
address the importance of eradicating racial disparity in our 
military justice system, ensure fairness, inclusion, and 
diversity for all air and space professionals in the Department 
of the Air Force. An inclusive and diverse force is absolutely 
necessary to defend a diverse and inclusive Nation.
    Like many of our civilian counterparts, we collect data on 
race in the military justice process. Our data shows that Black 
male airmen below the rank of E-5 and with less than 5 years' 
time in service are almost two times more likely to receive 
nonjudicial punishment, an Article 15, or face courts-martial. 
While we review specific cases to ensure there is not disparate 
treatment based on protected class, we don't have clear answers 
or underlying reasons as to why the disparity exists.
    Like all difficult issues the Nation faces, solutions to 
address that disparity will require whole-of-government and 
societal approaches. We are committed to working with you to be 
part of that solution.
    Throughout our history, we have defended the Nation, fought 
and won our wars because of four simple yet key components: 
first, the best people; second, the best training; third, the 
best equipment; and, fourth, the most important element that 
binds us together--discipline. Discipline lies at the heart of 
what the Nation expects of its military in the execution of our 
national defense missions. Discipline must be developed from 
day one. Discipline must also be earned by the military 
establishment by treating all of our members with dignity and 
respect with equal opportunity to meet and exceed standards. We 
try to do that through inclusion, feedback, mentoring, along 
with the administration of progressive discipline when airmen 
make mistakes before they become a disciplinary statistic. As 
our Secretary and chiefs recently stated, our diversity 
strengthens us as much as our common mission unifies us. The 
Department of the Air Force strives to foster a culture of 
inclusion and respect where every airman and space professional 
is valued for the talents he or she brings to the department 
regardless of race, color, or creed.
    Our struggle against racism and other forms of 
discrimination cannot be viewed as finite battles. Rather our 
approach must be infinite, a constant struggle for betterment. 
When President Truman signed Executive Order 9981 in 1948, he 
set in motion racial integration of our Armed Forces. Twenty-
five years later, a 1972 task force found intentional and 
systemic discrimination in the military justice system.
    Many of the proposals identified then were adopted. Today, 
while we believe that we no longer have intentional 
discrimination in our processes, the fact is that racial 
disparity in the aggregate persists.
    This demonstrates the complex and challenging nature of the 
issue, symptomatic or indicative of one of many symptoms, a 
daunting problem but one that should not stop us from exploring 
what we can do in the disciplinary process to serve as part of 
the solution set. Addressing it requires a holistic approach.
    Every day across the continuum of discipline, we are 
committed to finding new solutions and approaches. Every air 
and space professional, military and civilian, from the most 
senior to most junior, is responsible for fostering and 
reinforcing a culture of inclusion, dignity, and respect. Like 
everything we do in the military, this requires a team effort, 
especially to get to the root causes of this difficult problem.
    We can frame an approach by asking ourselves four 
juxtaposing questions. First, while easy to say our data merely 
reflects or is perhaps better than the society from where we 
come, what can we do in the armed services?
    Second, while easy to say the specific cases show no actual 
disparate treatment in the decision made, are we really 
including, mentoring, and administering progressive discipline 
equally to all before they become an Article 15 or a court-
martial?
    Third, while easy to say justice was color-blind in each of 
the cases, are there administrative and substantive due 
processes which are discriminatory in treatment or impact?
    And, fourth, finally, while easy to say the data shows that 
the aggregate disparity disappears after the first 5 years in 
the force, what can we do to eradicate that disparity earlier 
and altogether?
    We look forward to working with the subcommittee on this 
most important issue.
    [The prepared statement of General Rockwell can be found in 
the Appendix on page 106.]
    Ms. Speier. Thank you, General Rockwell.
    General Lecce.

STATEMENT OF MAJGEN DANIEL J. LECCE, USMC, STAFF JUDGE ADVOCATE 
  TO THE COMMANDANT OF THE MARINE CORPS, UNITED STATES MARINE 
                             CORPS

    General Lecce. Madam Chair Speier, Ranking Member Kelly, 
members of the Military Personnel Subcommittee, thank you for 
your invitation to represent the Marine Corps on the issue of 
racial disparity in the military justice system.
    The Marine Corps is dedicated to ensuring equality 
throughout its ranks, from the most junior Marine through our 
senior leadership. Although we have come a long way, we 
recognize that much must be done. Several months ago, the 
Commandant sought a way forward to remove the public display of 
the Confederate battle flag from Marine Corps installations 
because of its divisiveness and association with hate and 
discrimination. Three weeks ago, the Marine Corps issued a 
specific direction to the fleet to remove the Confederate 
battle flag from all Marine Corps installations across the 
globe.
    In his message to the Marine Corps regarding the 
Confederate battle flag's removal, the Commandant stated, 
quote, ``Only as a unified force, free of discrimination, 
racial inequality, and prejudice, can we fully demonstrate our 
core values, and serve as the elite warfighting organization 
America requires and expects us to be.''
    To that end, the Commandant is committed to implementing 
the findings of the GAO report.
    Disparities the GAO highlighted in our administration of 
the justice system in the Marine Corps require immediate 
scrutiny and demand action. The implicit trust Marines place on 
one another makes elimination of racial inequality an 
imperative. As the Commandant stated, any form of racial 
inequality, whether it be direct, indirect, intentional, or 
unintentional, threatens the cohesion of the Marine Corps and 
must be addressed head on.
    The GAO published two recommendations specifically 
addressed to the Department of the Navy. First, they 
recommended--they highlighted the need for our personnel, 
investigation, and military justice databases to use 
standardized data relating to race, ethnicity, and gender. 
Second and similarly focused on standardized data collection 
for our nonjudicial punishments and summary courts-martial. My 
written statement provides in greater detail the Marine Corps 
specific actions and intentions stemming from the GAO's 
recommendation. Improved data collection brought about by 
changes within last year will help us to collectively and 
comparatively assess data to identify racial and ethnic 
disparities. But we will not wait for better data to address 
and fight inequality now. How we train, educate, and foster 
Marines within our Corps is paramount to ensuring the equality 
across our fighting force and within the military justice 
system.
    Training and education serve as the fundamental components 
of eliminating racial bias. To this end, the Marine Corps is 
pursuing inclusion of unconscious bias training curriculum at 
every level of professional development. Respective commanders 
and senior enlisted leaders receive training on bias awareness 
through the Marine Corps University. Unit Marines receive 
comparable training from small unit leadership. Even our 
military justices have undergone similar training on 
unconscious bias within the past year. Such training and 
decisive senior leader action, such as the Confederate battle 
flag's removal, may not resolve the disparities overnight, but 
our commitment and determination to ensuring equality among 
Marines remains steadfast and enduring.
    Thank you, and I look forward to working with you on this 
important issue.
    [The prepared statement of General Lecce can be found in 
the Appendix on page 112.]
    Ms. Speier. Thank you, General Lecce.
    Thank you all for your testimony.
    I would like to start by asking a simple question on 
transparency. We work for the public. And the fact that, 
General Rockwell, you fought the FOIA requests from Protect Our 
Defenders for over 3 years is deeply troubling to me, 
especially when it was said by the judge that--this was at the 
aftermath of the Air Force Manpower found that racial 
disparities are consistent, persistent, and getting worse. And 
the judge then said, when they attempted to get information 
about what you were doing about that and you refused, the judge 
said: This was an exercise which went nowhere.
    So tell me and the American people, what was, who was 
benefited by not being forthright in complying with the FOIA 
request?
    General Rockwell. Madam Chair, as you know with FOIA and 
you know the exemptions under FOIA and you know in this case 
which FOIA exemption was invoked here, it was the deliberative 
process pre-decisional.
    Ms. Speier. But that is always used when people don't want 
to comply with FOIA.
    General Rockwell. Yes, ma'am. And when we looked at the 
underlying root causes, and of course the data was released and 
the data showed exactly what you explained. The underlying 
reason, the root causes of the 11 or 12 people on the working 
group, there were 11 or 12 different answers as to what that 
root cause was. And that truly, ma'am, did fall into why we 
protect that.
    Ms. Speier. Except you didn't do anything about it. That is 
the problem. You stand up this Air Force Manpower to do this 
evaluation, they come back with a pretty compelling statement, 
``consistent, persistent and getting worse,'' and then you do 
nothing about it. So how is that deliberative?
    General Rockwell. Yes, ma'am. Well it is consistent and it 
has been since we have been collecting the data since 1972. It 
is persistent because it is consistent. As far as it getting 
worse, it has pretty much stayed the same at least in the Air 
Force across this time. But one thing that we do know in the 
Air Force is to create this zone of innovation, this creative 
problem solving, these creative solutions, you have to give 
people, ma'am, the ability to really just look at this issue in 
different ways.
    Ms. Speier. I agree with you. I am going to move on. Thank 
you.
    General Rockwell. Yes ma'am.
    Ms. Speier. Admiral Hannink, the request for FOIA, the 
request was I think from 2006 to 2016. You provided only 
information and data from 2014 and 2015.
    Why did you not provide the entire request?
    Admiral Hannink. Madam Chair, I will have to take that 
question for the record. I know we switched case management 
systems in about 2014, and I think it likely was dealing with 
the data and the amount of good data that we could deliver. But 
I will get back to you with the final answer.
    [The information referred to can be found in the Appendix 
on page 121.]
    Ms. Speier. All right. Protect our Defenders, when they 
came out with the report, found that the Air Force was 71 
percent more likely to have Black airmen face court-martial 
than Whites; Army was 61 percent; Navy was 40 percent; the 
Marine Corps was 32 percent.
    Did any of you reach out to Protect Our Defenders to find 
out more about their study or how they could be helpful to you 
in dealing with this problem?
    General Pede.
    General Pede. Ma'am, I can't say today that I know 
specifically what communications we had with POD [Protect Our 
Defenders] during that time. I can get that answer back to you, 
but I can't say right now.
    [The information referred to can be found in the Appendix 
on page 121.]
    Ms. Speier. Do you have any intention of working with them 
moving forward?
    General Pede. Ma'am, we have talked with POD. We have 
digested their materials. We have used it to inform us. But I 
think we also spent a fair amount of time, an extensive amount 
of time with GAO and its data request as well. So we have a lot 
of people asking us for information. So we provide as best we 
can and certainly in accordance with the rules what we should 
provide to not only private organizations but certainly 
governmental organizations.
    Ms. Speier. Thank you. I am running out of time.
    Admiral Hannink, did you reach out to POD to learn more 
about their process or how they might be helpful?
    Admiral Hannink. Madam Chair, I did not. What I don't know 
is if anybody from our organization did, but I wish I had acted 
earlier.
    Ms. Speier. Thank you. General Rockwell.
    General Rockwell. No, ma'am. We are very much looking 
forward, though, to seeing what the field thinks about this, 
and this is what is behind our IG independent review of this, 
where we will talk to the very same people in the field that 
POD has been talking to, with a multidisciplinary team to get 
this type of feedback of what exactly is going on and what are 
those root causes.
    Ms. Speier. General Lecce.
    General Lecce. Madam Chair, I did not, and I think that is 
an area where we can do better.
    Ms. Speier. Do any of you think that someone should be 
court-martialed for being 6 minutes late to a formation 
meeting?
    General Rockwell. No, ma'am.
    Ms. Speier. General Lecce.
    General Lecce. Madam Chair, it would depend on the 
circumstances. If it was in combat, absolutely. I think if it 
was late for a meeting here in the Pentagon or in this chamber, 
the answer would be no, ma'am.
    Ms. Speier. My time has expired.
    Ranking Member Kelly.
    Mr. Kelly. I think we have to be real dangerous about using 
partial facts and partial figures. Six minutes late is not a 
big deal unless it is 6 minutes late delivering ordnance that 
saves thousands of troops. Six minutes late is not a big deal 
if it is to a meeting with a subordinate, but it is extremely 
important if you are meeting with the President of the United 
States or the Secretary of Defense. Six minutes late if it is 
one time is not a big deal, 6 minutes late if it is a pattern. 
So not knowing all the circumstances whether it was one 6-
minute thing or the other, I think is very dangerous.
    I think Colonel Christensen was very dangerous in saying 
that lawyers are less culturally biased than commanders. That 
is a very dangerous assumption when he also said only 1 in 10 
JAGs are African American. So we are lesser represented in the 
JAG Corps, but, therefore, we are culturally superior to the 
rest of these commanders. I think that is a very dangerous 
assumption to make.
    I think we have to be real careful. Here is what we know. 
We know E-5s, people with 5 years and below, are treated 
differently if they are African American when they are in the 
armed services. We know that. So we know what we gotta get 
after.
    We know that it is seems the referral rates when they are 
tried to the conclusion are the same. So that doesn't 
necessarily mean that people are being referred that shouldn't, 
it may actually mean the opposite, but we don't know.
    So what we have got to do is, number one, figure out, how 
do we quit being discriminatory, racially discriminatory to E-
5s and below and people with 5 years of service?
    What do we need to do to remedy that situation?
    Number two is we know we don't have African-American 
fighter pilots. We know that the promotion rates sometimes are 
slower to general officer or don't make general officer with 
African Americans or minorities. We know some of the reasons, 
and so we have to get after them. Anthony Brown has the ELITE 
Act, which he is talking about. Let me tell you what, if you 
are not a fighter pilot, you are probably not going to make 
general. If you are not a submarine or a surface ship guy or an 
aviator, you are not going to make admiral. You might. There 
may be some JAG Corps, some signal, some logistics officers do.
    If you are in the Army, if you are not a tanker or infantry 
or combat arms guy, you are probably not as likely to make 
general. We know this.
    So what are we doing to get African-American kids into 
those branches where we know promotions happen, where you get 
the best schools because of the jobs that you do.
    What do we do to encourage them? What are we doing as the 
services to go after and make sure we have aviators who fly in 
the Navy, who come off the decks of those carriers? What are we 
doing to make sure that we have African-American pilots who 
want to be F-35 pilots, which is more likely a quicker track to 
being promoted to general or anything else?
    What are we doing to make sure that African-American 
soldiers at the E-1 through E-5 level are getting in the right 
MOSes [military occupational specialties], the right branches 
where promotions exist?
    That is what we need to do.
    And I don't mean to preach, but we have to get at the root 
of this stuff. We have to quit talking about some of these 
things that may be or might be. What we have to do, if you want 
to stamp out the problem, you have got to figure out what the 
problem is; you have to figure out what the root cause is. And 
I think right now we are failing horribly at that.
    So, with that being said, I want everybody here to tell me, 
what are you doing in your service to figure out what the cause 
is, therefore that we can make a change and a difference?
    General Pede.
    General Pede. Congressman Kelly, thank you. I think, from a 
recruiting and promotion perspective, I think there is an 
intense focus right now, and there has been. Our Chief of 
Staff, Secretary, instituted an information-age talent 
management system last year, and that in part is designed to 
get after natural talent, and talent that implicit bias might 
prevent from advancing. So I think there is a fair--there is 
not just a fair amount of emphasis; there is significant 
emphasis.
    As I mentioned in my statement, I have directed with 
General Vereen a look, a very deliberate assessment of trying 
to get left of the allegation. What that means is, if we have 
an overrepresentation coming into the investigative system, how 
do we get in front of that allegation to figure out what is 
happening when the soldier gets to the unit such that they get 
in with let's say the wrong crowd or they start using drugs or 
they start misbehaving? What is going on there? Or perhaps just 
to the left of the disposition decision to send someone to 
trial, is there something going on there?
    So we are looking hard at implicit bias.
    I take some comfort in this, when we started looking at 
implicit bias in the arena of sexual assault about 10 years 
ago, it is now replete through our training, not only 
commanders but judge advocates throughout, and in my 
assessment, professional assessment, it has had a significant 
impact on the understanding of counterintuitive behavior in 
sexual assault. We know training, education in implicit bias 
works.
    Mr. Kelly. Can you guys answer really quickly just like 15 
seconds on what you can do to change that? Because I am out of 
time.
    Admiral Hannink. Thank you, Ranking Member Kelly.
    First and foremost, I think we in the JAG Corps to fit in 
with the Navy's overall effort in a culture of excellence. It 
really is about emphasizing signature behaviors that give you 
the respect that you talked with.
    The second thing is we have focused on diversity 
recruiting. We have a dedicated diversity liaison program, 18 
officers, closely affiliated with 13 diversity and educational 
organizations to try to keep connections so we keep that 
recruiting pipeline open.
    And then, like General Pede talked about, focusing on 
unconscious bias. The reason that I think it works is because I 
remember the first time I took unconscious bias training in 
2014. It was only later when realized I had an unconscious bias 
against unconscious bias training. I think it can be effective, 
and I think we need to keep at it and keep moving that through 
the force.
    Ms. Speier. Very quickly, please.
    General Rockwell. Ranking Member Kelly, we do it exactly 
the way you said it. You expand the discipline continuum from 
just courts and Article 15 and you go left. When you expand 
that zone and you look at that, how you discipline somebody, 
how you counsel somebody, how do you include somebody, how you 
give them feedback is the holistic approach we have to take.
    General Lecce. Ranking Member Kelly, very quickly, this has 
to be top-down driven, and the Commandant has done that with 
his recent action. Everybody has to get it, and it starts from 
the top and he has driven that down.
    We also have done it with our PAC order, prohibited 
activities and conduct order, that gets after discrimination. 
That has been on the books for 3 years. It involves an equal 
opportunity advisor to the commander. It is a commander's 
program.
    Ms. Speier. Thank you. Mrs. Davis, you are recognized for 5 
minutes.
    Mrs. Davis. Thank you Madam Chair, and to all of you. We 
appreciate your joining us today.
    I am glad that my colleague, Mr. Kelly, talked about some 
of the issues that you have already identified, and one of them 
was about the 5 years. I think that is very important. What I 
would like to know is about early warning signs. Is there an 
understanding that we really need to look at that and that some 
of that information should be collected as well?
    Are there counseling sessions? Are there concerns about 
retribution?
    How do we begin to really understand that better and how is 
that used?
    The other thing that I think we are all talking about right 
now is the element of White privilege. And I wonder to what 
extent is that an area of discussion that really can be brought 
in in the military as well?
    How is that talked about?
    Because as we well know, if you look at the data, there are 
plenty of ways of seeing and suggesting and really being open 
about how that affects us all, frankly. And I think we all have 
in our own experience those examples and how it might have been 
different if our son or our daughter was Black or Brown, what 
does that mean?
    I think that is an important discussion to have in the 
services as well.
    And then, finally, I just wonder, once we identify implicit 
bias, what do we do about it?
    If we were to go back into some and looking at the 
progression of circumstances for someone and the outcomes, what 
is it about that?
    How do we identify it, and what do we do?
    Really, talk about that a little bit as well. Thank you.
    Ms. Speier. Do you want to start, General Lecce?
    General Lecce. Madam Congresswoman, again, I believe it 
starts from the top, and I believe it starts with these honest 
and candid conversations in a safe environment. You can do this 
in the military. We believe in the Marine Corps that this is 
commander driven and commander owned, but you have to begin 
with those. You have to view diversity within the force as a 
strength and that begins with the Commandant all the way down 
to the most junior ranks. You have to accept that as a strength 
because, at the end of the day, that is what the Marine Corps 
is about. It is about fighting as a team. Everybody on the 
team, regardless of gender, ethnicity, or race is very 
important, and that is the bottom line.
    So, as my colleagues have stated here, pathways in 
mentorship to young people to look at the military, to look at 
the Marine Corps as a path for them. We have work to do there, 
but we can do that.
    These are things and steps that we are taking now. Thank 
you.
    General Rockwell. Ma'am, when I look at the numbers we have 
right now and I see those numbers and it makes you realize that 
the numbers are good data, at least from an Article 15 and a 
court standpoint, it is not evidence. It is not evidence to get 
to the root causes of the problem. So the last part of your 
question, how do we train on bias, you look at the way 
attorneys always look at things. You look to weed out bias to 
get to the weight, relevance, and credibility of actual 
evidence.
    I think one of the approaches we must take is to develop 
more data left of Article 15. We don't have that data. We kind 
of know that is where the problem is. What we don't know and 
what we can't answer for sure is, are we mentoring everybody 
the same?
    We all feel that we probably aren't based on those biases. 
But we don't have the specific data to show that.
    Once you get that data, of course, you move on to the 
training, you move on to the speaking of bias, you move on to 
the training of that, you move on to weeding that out and that 
all creates an atmosphere of inclusion. You create that 
atmosphere of inclusion, you just created diversity.
    Ms. Speier. Thank you.
    Admiral Hannink, I think Mrs. Davis has about 15 seconds, 
but we will extend 15 seconds to each of you to finish your 
comments.
    Admiral Hannink. The only additional comment I would have 
is I think the value of unconscious bias training and other 
decision-making training is that you put yourself in the 
position where you can take different perspectives and you 
bring other people onto your decision-making team as well. And 
that is very protective for the final decision-maker and 
everybody on the team.
    Ms. Speier. General Pede.
    General Pede. Yes, ma'am. Thank you. I think you should 
know as well that the Army not only is focused at the squad 
level, and the squad level according to our Sergeant Major and 
our Chief of Staff and Secretary, it is all about the team 
building, and it is all about inclusion, and it is all about 
bringing people on to one team so they all feel that they 
belong. And that gives you a better ability to diagnose where 
people are going left and right and center. I think that focus 
by our Army leadership at every echelon all the way down is key 
to getting after this, especially when it comes to unconscious 
bias.
    Ms. Speier. Thank you.
    Mrs. Davis. Thank you.
    Ms. Speier. Ms. Haaland, you are recognized for 5 minutes.
    Ms. Haaland. Thank you, Madam Chair.
    And thank you, Madam Chair, and thank you, Ranking Member 
Kelly, for holding this hearing.
    And thank you, panelists, for being here.
    This is a significant problem that we absolutely need to 
fix. We must ensure the systems we utilize to administer 
discipline are fair and just for everyone. In the 1960s, my 
father served in the Marine Corps and experienced firsthand the 
maturation of the service into a fully integrated force, along 
with the racial tensions that flared up during that time. We 
have progressed since then, but we can all agree we still have 
a long way to go.
    It was disheartening to learn that, despite the data 
presented in the 2017 Protect Our Defenders report and the 2019 
GAO report, the services have responded with little more than 
unconscious bias training to address widespread racial 
disparities. Meanwhile, Black service members continue to 
receive nonjudicial punishment at disproportionately high rates 
compared to White service members, and I have to believe that 
this is also a contributing factor to why we don't see service 
members of color achieve higher ranks, which is an issue this 
committee has consistently raised and which Ranking Member 
Kelly so eloquently articulated just a few minutes ago.
    General Rockwell, the Air Force spent nearly 3 years' worth 
of resources, time, and energy refuting the Protect Our 
Defenders report and preventing the data from being made 
available to the public, and that time and those resources 
could have been spent accepting that there is a major problem 
and tackling it head on. It is clear the racial disparities 
within our military justice system require more than just a 
disparity board that met for 90 days to try to resolve it.
    One of my questions, I have a few, will all of the work 
that you have mentioned earlier about addressing these long-
term issues, will this include improving the collection of data 
on race and ethnicity to make it more uniform across services 
so it is easier to identify problems?
    General Rockwell. Yes, ma'am, it will. We are making a 
conscious effort to, again, move left of that Article 15 and 
court-martial on the continuum and collect data, collect 
meaningful data of inclusion and feedback and mentoring. I 
think that is critical to getting to the root cause of the 
issue here.
    Ms. Haaland. Thank you. And what is the timeline for 
actions to be taken, if you could just reiterate that, General 
Rockwell.
    General Rockwell. We are doing it now, ma'am. And right 
now, the projected timeline, with the group that has been put 
together with our manpower and reserve affairs and personnel 
that we are a part of, is calendar year 2020.
    Ms. Haaland. Okay. Thank you so much. And last question--
well, maybe the last question, General, depending on my time, 
how will the progress be measured?
    General Rockwell. I think ultimately you measure progress 
by eliminating that racial disparity. You get to where we are 
right now in the Air Force at the E-5 level with 5 years in, 
where there is no disparity. I think that has to be the 
ultimate goal of where we should get to.
    Ms. Haaland. Thank you so much. And I have a little bit of 
time. So I will ask this next question. I understand the 
inspector general will be leading a review on racial 
disparities and causal factors, like culture and policies. The 
scope and demographic makeup of this review panel can certainly 
make a difference in its effectiveness and what its 
recommendations look like. Can you describe the makeup of the 
panel?
    General Rockwell. I don't have the full details. We have 
three members on that panel, but it is fundamentally a large 
panel. It has general officers on it who are Black and African 
American. It has chiefs on it, senior enlisted, who are African 
American, and it is multidisciplinary and multidiverse.
    Again, the idea is to get left of Article 15, and to get to 
that, there are so many different factors that need to be 
looked at. And I think what is going to be key is reaching down 
into what people feel on the ground, and that is really the 
focus of what they are trying to get to.
    Ms. Haaland. Thank you so much.
    Madam Chair, I yield.
    Ms. Speier. Thank you, Ms. Haaland.
    Mr. Cisneros, you are recognized for 5 minutes.
    Mr. Cisneros. Thank you, Madam Chair.
    And thank you all, gentlemen, for being here today. You 
know, we have a problem in this country with sentencing in the 
civilian law enforcement there, our criminal justice system. 
People of color tend to get longer sentences than White 
individuals do.
    Is this something we are looking at in the military as 
well? We know we have a problem with E-5s and below going to 
court-martial or receiving NJP more often than White service 
members do, but are we looking at the sentencing, and really 
are these individuals of color being sentenced more harshly 
than their White counterparts?
    General Rockwell. Sir, I will go first. As we looked at 
this issue with regard to the GAO report, as a matter of fact, 
Black airmen are sentenced less severely than White, and that 
is both with Article 15 punishments and court-martial 
sentences. I think all that tells us is this issue is much more 
complex than we can really wrap our hands around.
    Mr. Cisneros. General, and, again, correct me if I'm wrong, 
but that was for more senior members, E-5 or above E-5, right? 
I am talking about the more junior ranks.
    General Rockwell. No, sir. Even the E-1 to E-5 ranks, where 
you see the racial disparity, when you break it down further in 
the Air Force, White airmen are actually punished and sentenced 
more severely than Black airmen.
    Ms. Speier. Would the gentleman yield?
    Mr. Cisneros. Yes, ma'am.
    Ms. Speier. In the GAO report, it said that Black and male 
service members were more likely than White and female service 
members to be tried in summary courts-martial and to be subject 
of nonjudicial punishment in the Air Force and the Marine 
Corps. How does that square with what you said, General?
    General Rockwell. Yes, ma'am. That is in venue selection. 
More go to that venue, that court-martial. But at the end of 
it, when they are actually--if they are convicted and punished, 
their sentences are less in the Air Force.
    And, again, ma'am, I don't know what that means. It is just 
as you pull apart the data and analyze it, that is what we see 
in the Air Force. I don't know if that is the case in the other 
services.
    Mr. Cisneros. You know, if I could for the other services, 
if I could take those answers for the record.
    [The information referred to can be found in the Appendix 
beginning on page 121.]
    Mr. Cisneros. I have another question regarding the 
collection of data in regard to NJP and commanding officers. As 
we are doing the NJP, as you are collecting this data, are we 
collecting individual data for these commanding officers, 
looking at their records and trying to find these racial 
disparities and how they are dishing out punishment? And if so, 
if we are starting to see these racial disparities in the 
punishment that they are issuing, are they being counseled at 
all?
    And anybody can take that question. I would like to hear 
from everybody, if I could.
    General Pede. Congressman, this is General Pede from the 
Army. I think the short answer is, if we looked at our data 
collection today, we do not track that data.
    Mr. Cisneros. I can't hear anything right now.
    General Pede. My mike is activated. Can you hear me okay?
    Mr. Cisneros. I hear you now.
    General Pede. Sir, this is General Pede from the Army. 
Sitting here today, we do not track a particular commander's 
dispositions by command or by race. And so I think, in terms of 
our reflections on how we get after the notion of potential 
bias, whether unconscious or deliberate, that is part of I 
think our assessment.
    When General Vereen and I talk about how a law enforcement 
officer reacts at a scene of domestic violence or how a 
commander disposes of nonjudicial punishment, I think this is 
one of the areas that we look at.
    I would tell you, though, in practice, as a practicing 
judge advocate in the field for 32 years, those indicators are 
evident to any judge advocate or other leader at echelon, 
whether it is a brigade commander or division commander. They 
see things in their formation, especially particular commanders 
who are doing things that appear to them odd or suspicious or 
curious. I myself on only one occasion in 32 years remember a 
commander in such a circumstance as you suggest. It is worth 
looking at. I think we have to, and I think it is the 
responsible thing to do in our assessment. Thank you, sir.
    Mr. Cisneros. You know, with that, Madam Chairwoman, I 
yield back my time, but I would like to hear a response on the 
record from the other judge advocate generals. Thank you.
    [The information referred to can be found in the Appendix 
beginning on page 121.]
    Ms. Speier. All right. We will ask that you prepare a 
response for the record.
    Thank you, Mr. Cisneros.
    Now Mrs. Trahan is recognized for 5 minutes.
    Mrs. Trahan. Thank you. Thank you, Madam Chair.
    And in case it wasn't clear before, I do want to state for 
the record that I am grateful for the leadership of Chairwoman 
Speier and the MILPERS [Military Personnel] Subcommittee 
because, back in 2012, when addressing sexual assault and 
harassment reporting, I think it led to substantive changes in 
the DOD culture. But when it comes to equality and justice, I 
mean, we are an impatient Nation.
    So I am going to ask the same question that I asked before 
in terms of convening authority, and if you believe convening 
authority should be left to commanders or do you think that the 
current process increases the risk of unconscious or even overt 
bias within our military justice system?
    Ms. Speier. Mrs. Trahan, can you return to the video 
portion? We don't see you.
    Mrs. Trahan. Oh, I am sorry. I am sorry.
    Ms. Speier. That is all right.
    Mrs. Trahan. Can you see me now?
    Ms. Speier. We see you now.
    Mrs. Trahan. Thank you.
    General Pede. Ma'am, this is General Pede from the Army. 
You have probably heard me say this before, but I have complete 
confidence in our commanders to administer justice fairly and 
dispassionately, especially at the senior levels.
    It is not that I don't have faith in lawyers. I love my 
Corps. I love the judge advocates we recruit, train, and 
educate and nurture and culture, but there is no monopoly on 
bias or unbias. There is no monopoly on wisdom in your legal 
branches. I look to the Federal and the State sector. And I am 
not trying to throw anybody under the bus, but that is a 
lawyer-controlled system.
    And by any measure, whether it is The Sentencing Project or 
DOJ [Department of Justice] Bureau of Statistics, the racial 
disparities in those systems are well in excess of what you 
find in the military services. That is not by way of excuse, 
but that is a lawyer-controlled system.
    So I don't believe the answer is lawyers. I believe the 
answer is a set of crosschecks and balances between law 
enforcement, commanders, and lawyers looking at each other in 
the system and keeping each other honest. Thank you, ma'am.
    Mrs. Trahan. Anyone else want to comment on that or anyone 
have a different view? Okay. Then I am going to go to my 
question.
    Given that I am sure you are all looking inward with a lot 
of urgency, one of the GAO's findings was that, while Black and 
Hispanic males were more likely than White service men and 
women to be tried in general and special courts-martial across 
the services, race was not a statistically significant factor 
in the likelihood of conviction.
    And so I am wondering, what do you believe that data says 
about the military justice system? Could it indicate that the 
bias is more prevalent amongst our junior leadership ranks who 
are recommending service members for NJP or courts-martial than 
amongst the senior leaders who are ultimately sentencing them?
    General Rockwell. Congresswoman, I think this goes back to 
the first question, and you can really dovetail the answer into 
the first question of what you just asked.
    When you look at what a commander does of setting the tone 
and then the commander setting that command climate, and you 
look at this issue and you--and we think we know where the 
answer is, where the targets are, where the targets of 
opportunity are, that is left of 15, we know then that where 
this has to happen, where the unconscious bias needs to be 
eliminated, where the mentoring and the inclusion happens is 
that first-line E-5 supervisor over those E-4 and below airmen.
    And when you look at setting that command climate, knowing 
the commander has to do that and then letting that supervisor 
do that, that is where we need to focus the help, the training, 
the data and everything we need to collect.
    Mrs. Trahan. Does anybody else want to add anything to 
General Rockwell's comments?
    General Lecce. I think, Madam Congresswoman, I think from 
the Marine Corps perspective, there are two pieces. The GAO 
report was pretty clear that, although they showed bias in the 
data, they cannot conclude unlawful bias because we don't fully 
understand the data.
    So I think, number one, you know, to General Pede's point, 
we have to kind of get left of the problem and figure out what 
this data exactly means. But second and more importantly and 
something that the Commandant has made clear is that commanders 
have to get after this in setting the tone, training and 
educating their subordinate personnel about the importance of 
this, of equality and diversity in the force and how that makes 
us stronger. And I think that is something that the Commandant 
himself has really gotten after and that we are taking very 
seriously in the Marine Corps.
    Mrs. Trahan. Well, I appreciate all that. I mean, certainly 
what you want to back up the data with, you know, a root cause 
analysis along all of those sort of stage gates. And I 
understand that the Air Force is going to be completing 
anonymous surveys.
    General Rockwell, will those findings of the surveys, will 
those be public?
    General Rockwell. Yes, Congresswoman, I imagine they will 
be. I will defer all that to the IG who is running it so we do 
get an independent look at this. Yeah, I can't believe those 
results will not be open and transparent.
    Ms. Speier. All right. Mrs. Trahan's time has expired. 
Thank you.
    We will now go to Mr. Brown for 5 minutes.
    Mr. Brown. Thank you, Madam Chair. Again, I want to thank 
you and the ranking member, Representative Kelly, for allowing 
me to waive on this afternoon.
    I want to thank each of our panelists for testifying today. 
I want to thank you for your service to our Nation and in our 
Armed Forces and for your stated commitment to end racial 
disparities in our military justice system.
    We are at a difficult time in our Nation's history; a time 
when racial injustice is seen in the violence against Black 
Americans by local law enforcement; a time when persistent 
racial disparities in health are illuminated by the stark 
contrast we are witnessing in the disproportionate prevalence 
of COVID-19 death and infection among Black and Brown 
Americans; a time when almost every racial disparity 
experienced in this Nation, in our educational systems, our 
criminal systems, our workforce, are compounded by this 
pernicious pandemic.
    And, today, we are at a difficult time in America's 
military. An institution that led this Nation in racial 
integration almost 75 years ago is now confronted with growing 
White nationalism in our ranks; an institution that saw the 
first African-American first captain at West Point 40 years 
ago, now-retired Army General Vince Brooks, yet it took until 
last week before we could confirm our first African-American 
service chief, General Brown of the Air Force, and we still 
have a military whose 61 four-star flag officers only include 2 
African-American officers among them; an institution that 
benefited from the courageous service of nearly 1,000 pilots 
during World War II who completed the Tuskegee training 
program, yet today there are only 446 minority fighter or 
bomber pilots and navigators in the Armed Forces, less than 2 
percent of our pilots are African American; an institution that 
after World War II, in 1951 began to operate under the UCMJ, 
which in many ways has been way ahead of the changes, the 
positive changes in the civilian criminal justice system, in 
terms of the rights of accused and of defendants, yet today 
grapples with racial disparities in the disciplinary treatment 
of men and women in uniform. That is where we are today in our 
Nation and in our military, and it cannot be where we are 
tomorrow. We have work to do, and we need to do it now.
    Gentlemen, I take a lot of stock in the work of the GAO, 
and they came back I thought with a thoughtful report and list 
of recommendations on how we can get better.
    And my question is, what more do you need from Congress in 
order to complete your evaluation of the causes of any 
disparities in the military justice system, and are you 
consulting any outside resources that have expertise in this 
area in order to complete this evaluation? We can start with 
the Army. We will go down to the Air Force, then the Navy.
    Ms. Speier. General Pede.
    General Pede. Yes, ma'am, thank you.
    Congressman Brown, thank you so much for the question. As 
to what we need from Congress, I think, as I mentioned in my 
statement, the care and attention, the desire, the passion you 
bring to these issues to help us help ourselves, to see 
ourselves, is critical. So I think that will continue. I know 
it will. And I want you to know personally I welcome it, and so 
does the Army leadership.
    With respect to outside resources, sir, with respect to 
causality, we are in the very early stages of figuring out what 
can cause this. So we are developing a framework, well, this 
very week and last week to figure that out. I fully expect that 
that will include outside assistance. Thank you, sir.
    Ms. Speier. Thank you. Admiral Hannink.
    Admiral Hannink. Sir, I think section 540I of the NDAA was 
an excellent roadmap. I think that point was emphasized by the 
witness from the GAO. I think the focus on data collection and 
then solid assessment, understanding, and then what to do about 
the disparities is the right way ahead.
    I agree with General Pede on outside assistance. I think 
that it is going to be important this look be deliberate, that 
it be thoughtful, and it is not going to be over quick. We are 
going to have to continue this effort, and that is where I 
think the outside resources can be incredibly helpful.
    Ms. Speier. General Rockwell.
    General Rockwell. Sir, I have a lot of faith in what our IG 
independent review is going to do. I have a lot of faith that 
they are going to look at this internally and holistically. I 
also have a lot of faith in our Manpower and Reserve and A1 
team, who is leading the effort.
    Now, you asked the question about what kind of outside help 
are we getting. That manpower and personnel team is getting a 
lot of outside help. So I have quite a bit of faith in that to 
see what else can we do to get to this elusive solution set 
here.
    Ms. Speier. General Lecce.
    General Lecce. Mr. Congressman, I don't believe at this 
time we need any help from Congress, but I appreciate the 
opportunity to testify here. We just have a lot of work to do. 
We just have to get after this.
    We realize that we are at the beginning. We are working at 
looking at data. We are trying to understand the data. But 
there is a lot of hard work that has to be done. And, again, I 
keep--you know, the Commandant is my boss. I keep mentioning 
him because he has made this an important plank in his 
commandancy, and he is driving it. And I think that that is 
what we need throughout every echelon of the Marine Corps. 
Commanders need to drive this. They need to make it important. 
And I think that starts these candid and open conversations 
about how we get after this. And that is what the Marine Corps 
is doing.
    Mr. Brown. Thank you, Madam Chair.
    Ms. Speier. Thank you, Mr. Brown.
    Mr. Kelly, do you have any final words?
    Mr. Kelly. No, ma'am.
    Ms. Speier. All right. Generals and Admirals, thank you so 
much for your participation today and for your commitment to 
the rule of law.
    Let me just end with a few comments. 540I was put into the 
NDAA not by you, not at your request, but at Congress' request. 
So, while you are relying on that now to recognize that there 
is work to be done, it would have been a whole lot better if it 
had come from you.
    General Lecce, you have said it a number of times: it 
starts at the top. And you are right. And I hope you convey to 
all of your chiefs of staff how critical this is to the 
Congress of the United States.
    General Pede, you said that, much like sexual assault and 
sexual harassment in the military, we have to focus on this 
with the same laser focus that we have provided for that issue, 
and I agree with you.
    We are at a transformational point in this country, 
civilian- and military-wise. And I think that there is a lot of 
work to do, there is a lot of data that has to be collected, 
but we have to make sure it is consistent across all of the 
services and that there is transparency.
    I hope that we don't have to have another hearing where we 
have outside groups coming to us and saying, ``We can't get the 
information.'' GAO in a number of circumstances said she 
couldn't get the information. We have to be forthcoming to the 
American people.
    We intend to continue this work. We will have you back to 
see how you are doing, in hopes that you are going to be making 
great strides in dealing with the antiracism that we now have 
to imbue in society generally.
    And, with that, we stand adjourned.
    [Whereupon, at 2:22 p.m., the subcommittee was adjourned.]



      
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                            A P P E N D I X

                             June 16, 2020

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              PREPARED STATEMENTS SUBMITTED FOR THE RECORD

                             June 16, 2020

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              WITNESS RESPONSES TO QUESTIONS ASKED DURING

                              THE HEARING

                             June 16, 2020

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             RESPONSES TO QUESTIONS SUBMITTED BY MS. SPEIER

    General Pede. After the publication of the Protect Our Defenders 
(POD) report in May 2017, the Under Secretary of Defense for Personnel 
and Readiness (USD(P&R)) met with the Services to direct a review of 
the POD report and directed the Services to provide race and ethnicity 
data to USD(P&R) to attempt to replicate the POD analysis. The Services 
complied and immediately identified that POD had not requested, nor 
included in their report, the investigative data that preceded the 
courts-martial data that is critical to understanding where disparities 
originate, are alleviated, or are exacerbated. Any study that starts at 
the decision to refer a court-martial, including POD's study, is 
incomplete and inadequate to understand the issue. As the USD(P&R) 
review progressed, the FY18 NDAA House Report 115-200 published on July 
7, 2017 directed GAO to assess disparities in the military justice 
system. The Services discussed with GAO the need for a more 
comprehensive data collection that included personnel, law enforcement 
and judicial data that allowed for a multi-variate analysis and began 
cooperating fully with GAO to obtain a more accurate picture of our 
system. GAO is best positioned to provide neutral, independent, expert 
analysis. Importantly, the GAO study identified that the disparity for 
Black service members did begin earlier in the process, at the 
investigative or accusatory stage, and that the disparity was 
alleviated during the court-martial process, providing the Services 
with a better understanding of the issue to inform ongoing efforts for 
further study.   [See page 29.]
    Admiral Hannink. This FOIA request, submitted in March 2016 by 
Protect Our Defenders, requested information pertaining to the race and 
rank of personnel who went to court-martial or received non-judicial 
punishment (NJP) in the preceding ten years. The Navy's court-martial 
tracking system, which manages data for all courts-martial tried by 
Navy Region Legal Service Office Trial Departments, did not include 
service members' race until October 1, 2014. Therefore, in response to 
the request, the Navy provided a spreadsheet of race and rank data for 
courts-martial tried from October 1, 2014 to April 19, 2016. 
Additionally, during the requested period, Navy summary courts-martial 
(SCM) and NJPs were tracked using a Quarterly Criminal Activity, 
Disciplinary Infractions, and Courts-Martial Report (QCAR). From 2006 
to 2016, the QCAR tracked only the number of SCM and NJPs with no 
additional details. Since then, the Secretary of the Navy has directed 
collection of additional demographic data for all SCM conducted on or 
after June 17, 2020 and NJPs imposed on or after October 1, 2020.   
[See page 29.]
                                 ______
                                 
            RESPONSES TO QUESTIONS SUBMITTED BY MR. CISNEROS
    General Pede. The Army maintains demographic data on courts-
martial, including sentencing. Utilizing the available data, the GAO 
report found that Black, Hispanic, and male Servicemembers were more 
likely than White or female members to be the subjects of 
investigations recorded in the databases used by military criminal 
investigative organizations and that they were also more likely to be 
tried by courts-martial. While the disparities identified by the GAO 
carried over into the decision by a commander to refer a case to court-
martial, race was not a factor in predicting conviction or severity of 
sentence. Per the recommendations in the GAO report, the Army is 
working to improve data collection to more fully understand the 
disparities that were identified. To accomplish these efforts, the 
Secretary of the Army directed a holistic review and assessment of our 
military justice system in relation to these issues. One subset of this 
holistic review involves examining our Special and General Court-
Martial decisions and results. We will provide our answers and 
recommendations to the Secretary of the Army no later than 1 February 
2021. [See page 36.]
    General Pede. While the Army collects demographic data on Soldiers 
receiving non-judicial punishment, it does not track this data by 
individual commanders and does not use non-judicial punishment data as 
a metric to evaluate the fairness of individual commanders. While we 
acknowledge that both explicit and implicit bias can exist in command 
punishment decisions, the circumstances of every unit and command 
discipline decision are unique and cannot be simply extrapolated into 
an assessment of individual commanding officer fairness. To better 
assess bias in commander decisions, the Army has numerous avenues for 
those who experience disparity in treatment or perceive disparity to 
make a complaint against a commanding officer. These complaints are 
elevated to higher command channels for evaluation and action. The 
Secretary of the Army has directed a holistic review and assessment of 
our military justice system. As part of this assessment, we will 
evaluate a number of commanding officer decision points in order to 
identify any disparity in cases where a commander has significant 
discretion. Also, as a part of this holistic review, the Army G-1 will 
examine the racial and ethnic breakdown of the Army's commanders at all 
levels.   [See page 37.]
    Admiral Hannink. The Navy is committed to identifying racial 
disparities in the military justice system, including any disparities 
in approved sentences. The May 2019 Government Accountability Office 
(GAO) report titled ``DOD and the Coast Guard Need to Improve Their 
Capabilities to Assess Racial and Gender Disparities'' analyzed courts-
martial sentencing data across all services. For the Navy, the GAO 
found that Black service members were approximately half as likely as 
White service members to receive a discharge or dismissal. In addition, 
the GAO could not identify a statistically significant difference 
between Hispanic and White service members in sentencing data at 
general or special courts-martial in the Navy. In accordance with 
Section 540I of the FY20 NDAA, the Navy began collecting race, 
ethnicity, and gender information of the accused and victims for all 
courts-martial conducted on and after 17 June 2020. With the continuous 
collection of courts-martial data, the Navy will be equipped to 
evaluate whether racial, ethnic, or gender disparities exist (including 
disparities in sentencing) and to take appropriate action if warranted. 
  [See page 36.]
    Admiral Hannink. The Navy has not previously collected 
comprehensive race and ethnicity data for nonjudicial punishment cases 
conducted by Commanding Officers. The Navy is in the process of 
evaluating the best way to collect and utilize race and ethnicity data 
related to nonjudicial punishment.   [See page 37.]
    General Rockwell. Since 1974, the Air Force has collected and 
compared data for sentencing for similar offenses. The recent GAO 
Report on racial disparities provided an independent analysis of our 
data. The GAO Report determined White servicemembers in the Air Force 
are more likely to be convicted, whereas Black servicemembers in the 
Air Force are slightly less likely to be convicted, but the GAO found 
the disparities were not statistically significant. Not identifying any 
statistically significant findings means the GAO could not conclude 
whether there was an association between race and the likelihood of an 
outcome. The GAO also measured whether race was a factor in whether a 
servicemember received a more severe punishment. In doing so, they 
considered a sentence as severe if it included a dismissal or 
discharge, or confinement for two or more years. The GAO found Black 
servicemembers are slightly less likely to receive a more severe 
punishment compared to their share of the convicted service population 
in the Army, Navy and Air Force, but found no statistically significant 
differences. To address potential disparities in sentencing, or any 
barrier to the goal of ensuring a fair and impartial military justice 
system, Commanders and Judge Advocates candidly review all cases (NJPs, 
courts, discharges, trends, responses, etc.), at least quarterly, in 
open and transparent status of discipline meetings. Each case is 
independently reviewed for legal sufficiency at multiple levels of 
command, from installation to MAJCOM. These statistics are also 
reviewed periodically at the headquarters level. Airmen accused of 
committing a crime are entitled to, and receive, independent and 
zealous representation by defense counsel. Approximately 97% of Airmen 
are represented in NJP proceedings and in trial by courts-martial. 
Engaged and involved defense counsel aggressively raise any issues that 
have adversely affected their clients, to include racial or other 
discrimination, if discovered and supported by evidence.   [See page 
36.]
    General Rockwell. Yes. The Air Force collects demographic data on 
all non-judicial punishment actions, but does not collect the 
demographic data in such a way that allows for the analysis of 
individual Commanding Officers who impose non-judicial punishment 
actions. Although the demographic information we collect is not 
collected with the specific intent to measure the fairness of a 
particular Commanding Officer, the information shared at the Status of 
Discipline Meetings presents the opportunity for supervisory and peer 
review. Typically, each Commanding Officer briefs the underlying facts 
and demographic data of each non-judicial punishment action they 
imposed during the relevant time period. We are examining whether 
tracking the demographics of those who administer and receive 
administrative disciplinary actions will provide additional insight 
into whether corrective administrative actions are issued in a fair and 
equitable manner.   [See page 37.]
    General Lecce. The Marine Corps does not have any independently-
collected data or analyses regarding racial disparities in sentencing 
for similar offenses. The Government Accountability Office's (GAO) May 
2019 Report included a multivariable regression analysis of the 
likelihood, based upon race, of receiving a sentence of either a 
dismissal or a discharge (which the GAO regarded as the most severe 
punishment outcome) at a Special or General Court-Martial. That 
analysis (Table 35 in the GAO report) did not indicate a statistical 
significance for receiving either a dismissal or a discharge between 
the following categories of Marines: Black, Hispanic, Other, Unknown 
race, and White. However, the GAO Report did not analyze other aspects 
of sentencing such as length of confinement, forfeitures, or fines. The 
Marine Corps is committed to gathering data which will enable the 
identification of demographic disparities in the military justice 
system, to include disparities in sentencing. As required by Section 
540I(b)(1) of the National Defense Authorization Act for Fiscal Year 
2020, the Marine Corps is now collecting and maintaining race, 
ethnicity, and gender data within its case management system for all 
general and special courts-martial completed on or after 17 June 2020. 
This data will enable the Marine Corps to conduct future analyses. 
Additionally, the Marine Corps is working with the Defense Advisory 
Committee on Investigation, Prosecution, and Defense of Sexual Assault 
in the Armed Forces, which is currently conducting an evaluation of 
racial, ethnic, and gender disparities in sexual assault cases.   [See 
page 36.]
    General Lecce. The Marine Corps does retain demographic data on 
service members who receive non-judicial punishment. However, the 
Marine Corps does not have a database that collates non-judicial 
punishment data by commanding officer. As such, non-judicial punishment 
data is not being used to determine whether specific commanding 
officers impose non-judicial punishment in a disparate manner across 
different demographics. Despite the inability to analyze non-judicial 
punishment data by commanding officer, the Marine Corps regularly 
utilizes anonymous command climate surveys as a means to identify 
commanding officers who may be conducting command functions, to include 
non-judicial punishment, in a disparate manner.   [See page 37.]