DOD Service Academies: Comparison of Honor and Conduct Adjudicatory
Processes (Chapter Report, 04/25/95, GAO/NSIAD-95-49).
Over the years, there have been several highly publicized incidents at
the nation's military academies involving honor or conduct charges
against students. GAO reviewed the adjudicatory systems used at the
academies to make decisions on student conduct and performance. This
report (1) compares the honor and conduct systems at each academy and
describes how the various systems provide common due process protections
and (2) describes the attitudes and perceptions of students toward these
systems.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: NSIAD-95-49
TITLE: DOD Service Academies: Comparison of Honor and Conduct
Adjudicatory Processes
DATE: 04/25/95
SUBJECT: Military service academies
Investigations by federal agencies
Military training
Agency proceedings
Students
Higher education
Administrative hearings
Ethical conduct
Civil procedure
Right to due process
IDENTIFIER: Air Force Academy Character Development Program
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Cover
================================================================ COVER
Report to Congressional Committees
April 1995
DOD SERVICE ACADEMIES - COMPARISON
OF HONOR AND CONDUCT ADJUDICATORY
PROCESSES
GAO/NSIAD-95-49
DOD Service Academies
Abbreviations
=============================================================== ABBREV
DOD - Department of Defense
UCMJ - Uniform Code of Military Justice
Letter
=============================================================== LETTER
B-260802
April 25, 1995
The Honorable Strom Thurmond
Chairman
The Honorable Sam Nunn
Ranking Minority Member
Committee on Armed Services
United States Senate
The Honorable Dan Coats
Chairman
The Honorable Robert C. Byrd
Ranking Minority Member
Subcommittee on Personnel
Committee on Armed Services
United States Senate
The Honorable John Glenn
United States Senate
As part of a comprehensive review of student treatment at the
Department of Defense (DOD) service academies originally requested by
Senator Nunn and Senator Glenn, we collected information on the honor
and conduct adjudicatory systems at the Military Academy, the Naval
Academy, and the Air Force Academy. The purpose of this report is to
(1) compare the honor and conduct systems at each academy and
describe how the various systems provide common due process
protections and (2) describe the attitudes and perceptions of the
students toward the honor and conduct systems.
As arranged with your staff, unless you publicly announce its
contents earlier, we plan no further distribution of this report
until 1 day from its date of issue. At that time, we will send
copies to other interested congressional committees and Members of
Congress; the Secretaries of Defense, the Army, the Navy, and the Air
Force; and the Superintendents of the Military Academy, the Naval
Academy, and the Air Force Academy. We will also make copies
available to other interested parties on request.
If you or your staff have any questions concerning this report, I can
be reached on (202) 512-5140. The major contributors to this report
are listed in appendix IV.
Mark E. Gebicke
Director, Military Operations
and Capabilities Issues
EXECUTIVE SUMMARY
============================================================ Chapter 0
PURPOSE
---------------------------------------------------------- Chapter 0:1
Over the years, there have been several highly publicized incidents
at the Department of Defense's (DOD) service academies involving
honor or conduct charges against students. The former Chairman of
the Senate Committee on Armed Services and the former Chairman of its
Subcommittee on Manpower and Personnel asked GAO to review the
adjudicatory systems used at the academies to make decisions
regarding student conduct and performance.\1 The objectives of this
report are to (1) compare the honor and conduct systems at each
academy and describe how the various systems provide common due
process protections and (2) describe the attitudes and perceptions of
the students toward these systems.
--------------------
\1 Each academy also has an academic board that makes decisions
regarding student academic performance deficiencies. Since academic
deficiencies are handled much differently from conduct and honor
cases, the operation of the academic boards has been addressed in a
separate report, DOD Service Academies: Academic Review Processes
(GAO/NSIAD-95-57, Apr. 5, 1995).
BACKGROUND
---------------------------------------------------------- Chapter 0:2
The service academies are one of the main sources of newly
commissioned officers. Over the last 20 years, the academies have
provided about 10 percent of annual new officer accessions, with the
bulk of the remainder coming from the Reserve Officers Training Corps
and officer candidate schools. Each academy operates adjudicatory
systems to maintain discipline and standards and to train students.
The conduct system at each academy establishes rules and regulations
and provides a process for dealing with those accused of violations.
In addition, each academy has a largely student-run honor system that
prohibits lying, cheating, and stealing.
RESULTS IN BRIEF
---------------------------------------------------------- Chapter 0:3
Although the honor systems at the academies have many similarities,
there are some prominent differences among them. The honor codes at
the Military and Air Force academies include non-toleration clauses
that make it an honor offense to know about an honor offense and not
report it, while at the Naval Academy failure to act on a suspected
honor violation is a conduct offense. Differences also exist in the
standard of proof that is used in honor hearings, "beyond a
reasonable doubt" used at the Air Force Academy versus "a
preponderance of the evidence" used at the other academies.
Academy honor hearings provide students with the majority of the
protections typically associated with procedural due process, with
some exceptions and limitations. The most prominent limitations
exist on the right to representation by counsel and the right to
remain silent and avoid self-incrimination. All three academies
impose a limitation on the right to counsel by prohibiting military
or civilian lawyers from representing cadets and midshipmen in the
hearing itself. The right to remain silent is not granted until the
individual is actually charged with an offense.
Responses to a GAO questionnaire indicated that academy students
generally saw their honor systems as fair. In some cases, whether an
act constitutes an honor violation is not completely clear because
the intent of the accused must be inferred from the investigative and
hearing processes. Also, there was considerable reluctance among
students to report their fellow students for honor violations.
In general, the administrative conduct systems at the Military and
Naval academies provide several due process protections, with some
exceptions and limitations on others. The Cadet Disciplinary Board
proceedings at the Air Force Academy, on the other hand, provided
fewer due process protections than proceedings at the other two
academies. As of January 1, 1995, the Air Force Academy eliminated
the Cadet Disciplinary Board and implemented a two-step process aimed
at improving timeliness and fairness in dealing with major conduct
offenses. While the conduct systems are characterized by academy
officials as administrative, rather than judicial, they offer less
due process protection than is mandated across DOD for other
nonjudicial disciplinary proceedings.
A large majority of the students questioned the reasonableness of
many of the minor rules and regulations in the conduct codes. Also,
many students perceive academy handling of conduct offenses, the
application of rules and regulations, and the imposition of
disciplinary actions as inconsistent.
PRINCIPAL FINDINGS
---------------------------------------------------------- Chapter 0:4
ACADEMY HONOR SYSTEMS DIFFER
REGARDING TOLERATION AND
STANDARDS OF PROOF
-------------------------------------------------------- Chapter 0:4.1
The academy honor systems differ on several key features. The codes
at the Military and Air Force academies require cadets to report a
fellow cadet if they become aware of an honor violation and the
individual does not turn himself/herself in, and failure to do so
itself constitutes an honor violation. At the Naval Academy, failure
to act on an honor violation is a conduct violation, not an honor
offense. The Naval and Military academies use the "preponderance of
the evidence" standard of proof in their honor proceedings, while the
Air Force Academy uses the "beyond a reasonable doubt" standard. The
higher standard of proof used at the Air Force Academy makes it more
difficult to obtain a conviction and, therefore, offers more
protection for an accused cadet.
HONOR SYSTEMS PROVIDE THE
MAJORITY OF DUE PROCESS
PROTECTIONS, WHILE LIMITING
OTHERS
-------------------------------------------------------- Chapter 0:4.2
The honor systems provide many due process protections, such as
adequate notice, open hearings, an impartial tribunal, and knowledge
of incriminating evidence. However, several other protections are
limited, such as the right to representation by counsel. The
academies provide legal assistance to students charged with an
offense and encourage them to seek advice. However, none of the
academies allows a student's legal counsel to represent the student
during the actual hearing or in subsequent reviews of the hearing
outcome before academy officials.
Another limitation involves the right to remain silent. When an
officer or student in the chain of command requests a statement from
a student, the student must comply by revealing all information about
the incident, even if answering will implicate the student in a
violation. The right to decline to make a statement is generally not
recognized until it becomes likely that the student will be charged
with a violation of the Uniform Code of Military Justice.
WHAT CONSTITUTES AN HONOR
VIOLATION IS UNCLEAR
-------------------------------------------------------- Chapter 0:4.3
In a questionnaire, GAO asked the students and academy honor
officials at each academy whether 27 specific acts were or were not
honor violations. Widespread difference of opinion was found among
students and between students and officials regarding what
constituted a violation. Also, there was no clear criteria for
determining whether a given act would be charged as a conduct offense
or an honor offense.
STUDENTS ARE RELUCTANT TO
REPORT HONOR VIOLATIONS
-------------------------------------------------------- Chapter 0:4.4
The absolute wording of the honor code, where all violations are
viewed as equally serious, appears to be unrealistic to many
students. Student responses to questions regarding whether they
would report a peer for specific honor violations indicated that many
cadets and midshipmen would not turn in a company- or squadron-mate,
even if they had direct knowledge that a violation had taken place.
AIR FORCE ACADEMY CONDUCT
HEARINGS PROVIDED FEWER
PROTECTIONS THAN THOSE AT
THE OTHER ACADEMIES
-------------------------------------------------------- Chapter 0:4.5
The administrative conduct systems at the Military and Naval
academies provide several due process protections while imposing
limitations such as not allowing an attorney to represent the accused
at the conduct hearing. The Cadet Disciplinary Board, in place until
recently at the Air Force Academy, imposed more limitations than the
other academies by restricting an accused's opportunity to present
argument, cross-examine witnesses, receive all information going to
the board members, and by withholding the right to remain silent
until after it has been decided that a violation of military law may
have occurred.
FEWER RIGHTS GRANTED IN
ACADEMY ADMINISTRATIVE
CONDUCT SYSTEMS THAN ARE
MANDATED FOR OTHER
NONJUDICIAL PUNISHMENT
-------------------------------------------------------- Chapter 0:4.6
The conduct systems are administrative, as opposed to judicial, in
nature. As such, they are similar in intent to other forms of
nonjudicial disciplinary proceedings covered under the Uniform Code
of Military Justice. However, the administrative adjudicatory
systems provide fewer protections than are mandated by DOD or service
policies on nonjudicial disciplinary proceedings. Areas where
academy students have fewer such protections include the rights to
have attorneys represent them at hearings, to remain silent, and to
an independent appeal, and a limitation on the duration of
restrictions imposed for punishment.
ACADEMY STUDENTS SEE
THEMSELVES AS OVERREGULATED
BY TRIVIAL RULES
-------------------------------------------------------- Chapter 0:4.7
With regard to conduct rules, questionnaire responses showed strong
student concerns about what they saw as the unreasonableness of the
conduct rules. About 70 percent of the students perceived that many
regulations were trivial and unrealistic and over three-quarters
indicated that the academies should allow students more freedom.
ACADEMY STUDENTS PERCEIVE
THE CONDUCT SYSTEM AS
OPERATING INCONSISTENTLY
-------------------------------------------------------- Chapter 0:4.8
Three-quarters or more of the students at each academy perceived that
conduct offenses were handled differently across the academy. In
addition, they perceived that the rules and regulations were unevenly
applied and that students received different disciplinary actions for
the same offenses.
RECOMMENDATIONS
---------------------------------------------------------- Chapter 0:5
GAO is not making any recommendations.
AGENCY COMMENTS
---------------------------------------------------------- Chapter 0:6
DOD generally concurred with the report. DOD stated that it sees no
clear basis for concluding that protections provided under the
administrative conduct systems must parallel nonjudicial disciplinary
proceedings.
INTRODUCTION
============================================================ Chapter 1
The service academies are one of the main sources of newly
commissioned officers. Over the last 20 years, the academies have
provided about 10 percent of annual new officer accessions, with the
bulk of the remainder coming from the Reserve Officers Training Corps
and officer candidate schools.
Each of the academies operates adjudicatory systems to provide
students with training and maintain discipline and standards. The
conduct system at each academy establishes rules and regulations and
provides an administrative process for dealing with those accused of
violating them. In addition, each of the academies has a largely
student-run honor system that prohibits lying, cheating, and
stealing.\1
Although each institution's processes are somewhat unique, students
accused of honor or conduct violations at the various academies
experience generally similar investigative and separation procedures.
The honor and conduct adjudicatory systems at each academy are
considered by the academies to be administrative systems. That is,
they are intended primarily as an aid in maintaining discipline and
order. As such, they are nonjudicial in character.
--------------------
\1 The honor codes at the Military and Air Force academies also
prohibit toleration (failure to report) of those who violate the
honor code. At the Naval Academy, failure to act on an honor
violation is a conduct offense.
DISCIPLINARY SYSTEMS
---------------------------------------------------------- Chapter 1:1
The U.S. Constitution, through the President, gives a commanding
officer executive authority (the right to lead). The Congress,
through the Uniform Code of Military Justice (UCMJ), provides
commanders with quasi-judicial responsibility when they act in an
administrative (nonjudicial) punishment capacity, and judicial
authority when they act as a court-martial convening authority.
Academy students are expected to adhere to civilian laws, UCMJ, and
service and academy directives and standards. Unless excluded by
statute, all statutory provisions applicable to military members are
also applicable to cadets. Article 2 of the UCMJ\2 specifically
cites "cadets, aviation cadets, and midshipmen" as being subject to
UCMJ. The superintendent of each academy has also been designated as
a general court-martial convening authority.
Conduct violations are grouped into categories, depending upon the
seriousness of the offense. For minor offenses, adjudication and
punishment are determined by a member of the student or officer
chains of command. Students who violate more serious disciplinary
standards are subject to administrative disciplinary hearings or
court-martial for serious violations of UCMJ. Punishments range from
demerits to expulsion and include a wide range of intermediate
sanctions.
--------------------
\2 10 U.S.C. 802(a)(2).
HONOR SYSTEMS
---------------------------------------------------------- Chapter 1:2
Each of the academies also has a largely student-run honor system
that is intended to set the standard for moral behavior of the cadets
and midshipmen with the ultimate objective of building the trust and
integrity necessary for military teams to work effectively. At each
academy, a committee of cadets is elected annually by the student
body to administer the honor system. This group also provides
members to sit on student honor boards. All accused honor violators
are provided certain due process rights in the adjudication of their
cases, and potential punishment depends on the circumstances of each
case.
Under the honor systems, anyone may report a cadet/midshipman for a
suspected honor violation, including the individual himself/herself.
When a possible honor violation is reported, a student investigator
or investigative team is appointed. If the investigation finds
sufficient evidence that an honor violation has occurred, a formal
honor hearing is convened. If the honor board finds an individual
guilty, the case file is routed to the Commandant and the
Superintendent who review the evidence and decide upon punishment.
The service secretary is the approval authority for expulsions.
THE HONOR EDUCATION PROGRAMS
---------------------------------------------------------- Chapter 1:3
The honor systems at the academies consist of more than the honor
codes and the processes established for investigating and
adjudicating alleged violations. A key part of the honor systems
involves the academies' efforts to inculcate their students with a
high standard of ethics and integrity.
MILITARY ACADEMY
-------------------------------------------------------- Chapter 1:3.1
The honor education program at the Military Academy at West Point,
New York, is a continuous, progressive, 4-year program. The overall
goal is to foster an internal commitment to ethical standards that is
beyond reproach. The honor education program includes 50 hours of
instruction, 12 of which take place during cadet basic training, 35
during the academic year, and 3 during cadet field training.
The focus of honor education changes as cadets progress through their
academy careers. Fourth class honor instruction is intended to give
new cadets an appreciation and understanding of the tenets of the
honor code and its application to the cadets, both at the academy and
while away from the academy. Third class instruction focuses on
developing an understanding of the significance of being honorable as
a leader of subordinates. Second class honor instruction focuses on
the transition from honorable living as a cadet to honorable living
as an officer. First class year is a time for reflection and coming
to terms with the responsibilities of the office that cadets will
enter at graduation. In addition, "X-Y letters," which are
descriptions of actual honor cases and their resolutions, are
distributed to cadets.
NAVAL ACADEMY
-------------------------------------------------------- Chapter 1:3.2
Honor education at the Naval Academy in Annapolis, Maryland, is in
the process of being revised and unified under a new character
development program. The character development officer oversees this
program and is directly responsible to the Superintendent for
educating, training, and providing feedback to students and staff
regarding the honor concept.
While midshipmen have always received honor training during each of
their 4 years at the academy, the curriculum has been largely
repetitive from year to year. A group of faculty, administrators,
and athletic coaches is currently rewriting the curriculum, which is
expected to be implemented during the 1994-95 school year. The
program is expected to include 12 hours of instruction per year.
In addition to formal instruction, midshipmen receive periodic
updates on honor from the Ethics Advisor and "XYZ" letters. These
letters are descriptions of actual honor cases with explanations of
the outcomes and generalized advice for midshipmen who may be facing
similar ethical dilemmas.
AIR FORCE ACADEMY
-------------------------------------------------------- Chapter 1:3.3
Honor education at the Air Force Academy in Colorado Springs,
Colorado, is part of a comprehensive, 4-year character development
program. The overall goal of honor education is to introduce cadets
to the four tenets of the honor code as a minimum standard for their
conduct. The honor education program includes 61 hours of
instruction, 18 of which occur during basic cadet training and 43 of
which take place during the academic year.
The honor education program uses a variety of approaches, including
lectures, speeches, skits, film clips, case studies, scenarios, and
experiential activities. In addition, cadets receive "Cadet X"
letters to keep them informed of current honor case proceedings and
to explain the outcomes of cases.
CONGRESSIONAL INTEREST IN
ACADEMY ADJUDICATORY SYSTEMS
---------------------------------------------------------- Chapter 1:4
The Congress has long been interested in the academies' adjudicatory
systems. As those who appoint students to attend the academies,
Members of Congress are concerned that the students are treated
fairly. In addition, congressional attention has been drawn to the
honor systems, in particular, due to periodic episodes of large-scale
honor violations. During hearings on the academies, Members of
Congress have periodically raised questions about the honor systems
because of their observations of legally or ethically questionable
behavior (such as falsified body counts, inflated readiness reports,
and coverups of illegal or embarrassing acts) by military officers.
Each of the academies has experienced large-scale cheating episodes.
The most recent mass cheating scandal occurred at the Naval Academy
in 1993, in which 88 midshipmen were found guilty of honor violations
for cheating on an electrical engineering exam. In 1974, seven
midshipmen were forced to resign for cheating on a celestial
navigation exam after an instructor allowed several midshipmen to
examine a copy of the test during a review session and they then
shared the information with others.
At the Military Academy, 90 cadets were forced out for cheating on
examinations in 1951, 42 cadets left after being accused of cheating
in 1966, 21 cadets were dismissed for cheating and condoning cheating
in 1973, and 134 cadets left for cheating or tolerating cheating on a
take-home computer project in 1976.
At the Air Force Academy, 109 cadets left in 1965 for stealing and
selling exams or tolerating the practice, 46 cadets left in 1967
after sharing test questions, 39 cadets were separated for cheating
and tolerating those who did in 1972, 6 cadets resigned after being
found to have collaborated on a physics lab exercise in 1976, and 4
cadets left the academy as a result of an economics class honor
incident in 1992. Episodes such as these have triggered extensive
congressional hearings such as those convened in the House of
Representatives in 1967-68\3 and the Senate in 1976\4
and 1994.\5
But congressional interest in the academies' honor systems has not
been confined solely to the mass cheating episodes. Another concern
has been the academies' effectiveness at inculcating new officers
with a sense of honor and ethics. For example, the Senate Committee
on Armed Services became concerned about the amount of ethics-based
coursework at the academies because the principal people convicted by
juries in the Iran-Contra scandal were all academy graduates. This
concern prompted the Committee to ask the Secretary of Defense to
report on how the academies were implementing the Committee's
recommendation that they incorporate into their curricula topics such
as the constitutional limits on military authority, civilian/military
relations, the proper response to illegal orders, and the misuse of
power to further personal goals.\6
--------------------
\3 U.S. Congress, House Committee on Armed Services, Special
Subcommittee on Service Academies, Report and Hearings:
Administration of the Service Academies, 90th Cong., 1st and 2nd
sess., 1967-68.
\4 U.S. Congress, Senate Committee on Armed Services, Subcommittee
on Manpower and Personnel, Honor Codes at the Service Academies, 94th
Cong., 2nd sess., 1976.
\5 U.S. Congress, Senate Armed Services Committee, Subcommittee on
Force Requirements and Personnel, Hearings on the Honor Systems and
Sexual Harassment at the Service Academies, February 3, 1994.
\6 U.S. Congress, Senate Armed Services Committee Report 101-384, p.
167.
CHARACTERISTICS OF ADJUDICATORY
SYSTEMS
---------------------------------------------------------- Chapter 1:5
A primary objective of adjudicatory systems, from the point of view
of those subject to the systems, is "fairness." To try to ensure
fairness, adjudicatory systems are typically designed in ways that
minimize or structure the discretion of the adjudicator(s) by
imposing standardized procedures and mandating certain protections
for the accused. The categories we used in this report to describe
and compare the various adjudicatory processes are derived from the
legal concept of "procedural due process," which refers to safeguards
incorporated into adjudicatory proceedings.
The concept of due process is embodied in the 5th Amendment of the
U.S. Constitution, which provides that no person shall "be deprived
of life, liberty, or property, without due process of law." The
concept of procedural due process implies that official governmental
action must meet minimum standards of fairness and justice. Since
the courts view due process as a concept that should be flexibly
applied to fit the needs of a particular context, a body of case law
has developed regarding the applicability of procedural due process
protections to specific subgroups and particular settings. Due
process protections are greater in criminal proceedings than in
non-criminal proceedings (such as administrative hearings).
Courts have established that students facing expulsion from
tax-supported colleges and universities have constitutionally
protected interests that require minimal due process protections and
established standards for student disciplinary proceedings.\7 While
these standards and guidelines have been used in devising due process
requirements for academy adjudicatory proceedings, courts have ruled
that the government's interest in assuring the fitness of future
military officers permits the academies greater freedom in providing
due process protections than is accorded civilian institutions or
authorities.\8
We believe the due process protections and limitations applicable to
academy adjudicatory proceedings can be best understood by comparing
them with the broadest range of due process protections available in
civilian proceedings. In reviewing judicial and administrative
proceedings, we identified 12 categories of due process protections
commonly used to ensure fairness in hearings. These categories are
used in this report to discuss the academy adjudicatory systems and
include the rights to
adequate notice,
an open hearing,
an impartial tribunal,
present argument,
present and cross-examine witnesses,
know opposing evidence,
be represented by counsel,
have the decision based solely on the evidence presented,
have a complete record of the proceeding including findings of fact
and reasons for the decision,
an independent appellate review,
remain silent, and
have involuntary confessions excluded.
These 12 categories of due process rights include several rights
derived from criminal hearings. However, their inclusion does not
mean we believe that all these rights should be provided in academy
adjudicatory systems. Our purpose is to lay out as complete a set of
due process protections as possible to facilitate a comprehensive
discussion and comparison of the various adjudicatory systems.
The academies classify their honor and conduct systems as
administrative, as opposed to judicial, processes. Over the last 25
years, a number of cadets and midshipmen separated by the academies
for honor or conduct offenses have appealed to the federal courts for
relief. The courts have generally found that the academies'
adjudicatory systems provide students with the due process
protections required by existing law for administrative systems.
--------------------
\7 Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th
Cir.) cert. denied, 368 U.S. 930 (1961).
\8 Wasson v. Trowbridge, 382 F.2d 807 (2d Cir. 1967); Hagopian v.
Knowlton, 470 F.2d 201 (2d Cir. 1972).
OBJECTIVES, SCOPE, AND
METHODOLOGY
---------------------------------------------------------- Chapter 1:6
The former Chairman of the Senate Committee on Armed Services and the
former Chairman of its Subcommittee on Manpower and Personnel asked
us to review various aspects of student treatment, including the
adjudicatory systems, at the three Department of Defense (DOD)
service academies. The objectives of this report are to (1) compare
the characteristics of the honor and conduct systems at each academy
and describe how the various systems provide common due process
protections from the perspective of key participants in the process
and (2) describe the attitudes and perceptions of the students toward
the honor and conduct systems. A separate report describes the
operation of the academic adjudicatory processes at each academy.\9
We reviewed academy rules and regulations, historical accounts of the
academies, studies and reviews related to the operation of the honor
and conduct systems, and files and case law on disciplinary and honor
cases. We interviewed academy officials, staff, students, and the
academy-provided attorneys at each academy who served as legal
advisors to students accused of misconduct or honor offenses. We
provided DOD with a draft of this report and its comments appear in
appendix I.
In addition, we administered questionnaires at each of the three
academies to samples of cadets and midshipmen in 1990-91 and again in
1994. We found little difference between the responses from these
two periods and, therefore, we present only the 1994 data. A
detailed description of the surveys and related methodological issues
appears in appendix II.
We performed our review at the Military Academy, the Naval Academy,
and the Air Force Academy from October 1993 to January 1995 in
accordance with generally accepted government auditing standards.
--------------------
\9 DOD Service Academies: Academic Review Processes
(GAO/NSIAD-95-57, Apr. 5, 1995).
COMPARISON OF ACADEMY HONOR
SYSTEMS
============================================================ Chapter 2
The Military Academy, the Naval Academy, and the Air Force Academy
operate under somewhat similar honor code adjudicatory systems.
While the honor systems at each academy share many similarities,
there are also some key differences. Each system provides students
with certain common due process protections, while not providing or
limiting various other protections.
THE ORIGIN OF THE ACADEMY HONOR
SYSTEMS
---------------------------------------------------------- Chapter 2:1
The honor systems are strongly embedded in the history and traditions
of the academies. The exact wording of the honor code or concept is
somewhat different at each academy.
MILITARY ACADEMY
-------------------------------------------------------- Chapter 2:1.1
The Military Academy honor code states "a cadet will not lie, cheat,
or steal, nor tolerate those who do." This honor code can be traced
to the officer "code of honor" of the late 1700s and has existed in
one form or another since the Academy was established in 1802.
However, there was no formal honor system at that time and points of
honor were generally settled on a personal basis with the offended
party "calling out" the offender. The issue was then settled in some
sort of a duel, usually a fistfight.
Formalization of the honor system started to evolve in the late 1800s
when cadets began organizing "vigilance committees." The vigilance
committee investigated possible honor violations and reported its
findings to the cadet chain of command. If a cadet was found guilty,
he would be pressured to resign. Although these committees were not
officially recognized by Academy authorities, their existence was
tolerated and their decisions unofficially sanctioned. In 1922,
during the administration of Brigadier General Douglas MacArthur as
Superintendent, a formal student honor committee was established, and
it codified the existing unwritten rules.
The content of the Military Academy's honor code has evolved over the
years, going through numerous changes in statement, interpretation,
and application. The original code dealt only with lying. Later,
cheating was added during Sylvanus Thayer's term as Superintendent
(1817-33), although the code reverted back to dealing only with lying
by 1905. The prohibition against stealing was originally only a
matter of regulations. At some point in the mid-1920s, stealing
became part of the honor code, although serious cases were still
referred for court-martial. In 1970, the honor code was changed to
its current form to add an explicit "non-toleration" clause.\1
--------------------
\1 Up until 1970, non-toleration of honor offenders was an implied
part of the code.
NAVAL ACADEMY
-------------------------------------------------------- Chapter 2:1.2
For over a century since its establishment in 1845, the Naval Academy
had no official, formalized honor system. Although midshipmen were
presumed to be inherently honorable, it was not until 1865 that they
were first placed on their honor regarding not violating liberty
limits. By the end of the 1800s, the meaning of honor had changed to
a code of not reporting fellow classmates for any offense.
By the early 1900s, an informal honor code had evolved, and a
fistfight would ensue if one's integrity were questioned. When a
1905 fight resulted in the death of a midshipman, President Theodore
Roosevelt ordered that the honor code be abolished. Honor standards
were then incorporated into the midshipman regulations and violations
were processed as serious conduct offenses.
In late 1950, superintendent Admiral Barry W. Hill expressed his
concern to the Brigade of Midshipmen (the student body) that not all
midshipmen were living up to the fundamental concepts of honor and
personal integrity. However, the Admiral
". . . did not want a system that would codify right and
wrong, or a system that over the years would become so involved
with loopholes and elastic clauses that soon its very principles
would degenerate into a set of rights and wrongs that would
enable and tempt midshipmen to do wrong yet still be within the
codified system's bounds of right."\2
Guidelines for an honor committee and the Academy's "honor concept"
were approved in September 1951. The "honor concept" is based upon
midshipmen observing the fundamental principles of honesty,
truthfulness, forthrightness, and trustworthiness. The Naval Academy
makes a distinction between an honor concept and an honor code. As
the Naval Academy's honor instruction states:
"The honor concept is not a code of specific requirements or
prohibitions, but is violated by the commission or omission of
any act contrary to those principles, provided the commission or
omission was done with the intent to breach the fundamental
concept."
The 1994 Naval Academy honor concept\3 states, "Midshipmen are
persons of integrity: They stand for that which is right."
--------------------
\2 Excerpted from "The History of Honor at the United States Naval
Academy from its Founding up to the Establishment of our Present
Honor Committees," written by H. Ross Perot when he was a first
class midshipman.
\3 Before the spring 1994 change, the Naval Academy honor concept
stated: "Midshipmen are persons of integrity: They do not lie,
cheat, or steal."
AIR FORCE ACADEMY
-------------------------------------------------------- Chapter 2:1.3
Prior to acceptance into the Cadet Wing, all Air Force Academy cadets
take the Honor Oath, which states, "We will not lie, steal, or cheat,
nor tolerate among us anyone who does. Furthermore, I resolve to do
my duty and to live honorably, so help me God."
The Air Force Academy has had an honor code since its inception. A
1954 study group, headed by General Hubert R. Harmon, examined the
honor codes and systems in use by military and civilian institutions
throughout the country. From that review, the study group proposed a
basic code and system that borrowed heavily from the system being
used at the Military Academy. This basic code and system were
presented to the Cadet Wing on a trial basis in 1955, and the Class
of 1959, the first class to enter the Academy, adopted this code as
the minimum standard for all cadets in September 1956.
NUMBER OF HONOR CASES
---------------------------------------------------------- Chapter 2:2
The number of honor cases varies considerably from year to year and
from one academy to another. In addition, the proportion of cases
that are dropped without going to a board, the conviction rates, and
the proportion of convicted students who are expelled also tend to
vary.
The Military Academy had 84 honor cases in academic year 1993-94, 141
cases in academic year 1992-93, and 115 cases in academic year
1991-92. Fifty-nine percent of these cases were dropped without
going to an honor board. Of the 139 cases that went to a board,
about half of the cadets were found guilty. During this 3-year
period, 20 cadets (about 28 percent of those found guilty) were
separated for honor violations.
The Naval Academy had 80 honor cases in academic year 1993-94, 118
cases (excluding the electrical engineering exam incident for which
the statistics are shown separately) in academic year 1992-93, and
100 cases in academic year 1991-92. Fifty percent of these cases
were dropped without going to an honor board. Of the 149 cases that
went to a board, a little over half of the midshipmen were found
guilty. During this 3-year period, 16 midshipmen (about 20 percent
of those found guilty) were separated for honor violations.
The electrical engineering exam incident originally entailed charges
against 28 midshipmen, with 4 cases being dropped without a board.
Of the 24 cases that went to honor boards, 11 midshipmen were
convicted. Five of the convictions were overturned on review by
Academy officials and three midshipmen were separated. When the
extent of the cheating was determined to involve much higher numbers
of midshipmen than were initially charged, the Navy established a
special board made up of three admirals to adjudicate the cases.
This board heard a total of 129 cases (including most of the cases
that were previously heard by the midshipman honor boards) and found
88 midshipmen (68 percent) guilty. Twenty-six midshipmen (30
percent) were separated.
The Air Force Academy had 231 honor cases in academic year 1993-94,
164 cases in academic year 1992-93, and 154 cases in academic year
1991-92. Twenty-four percent of these cases were dropped without
going to an honor board. Of the 371 cases that went to a board, 236
cadets (about 64 percent) were found guilty. During this 3-year
period, 18 cadets (about 8 percent of those found guilty) were
separated or resigned for honor violations.
DIFFERENCES AMONG THE ACADEMY
HONOR SYSTEMS
---------------------------------------------------------- Chapter 2:3
The main differences among the honor systems at the three academies
are summarized in table 2.1.
Table 2.1
Differences in the Service Academy Honor
Code Adjudicatory Processes
Military Air Force
Issue Academy Naval Academy Academy
--------------- ------------- ------------- -------------
Does the honor Yes. No. (However, Yes.
code/concept toleration is
include a non- a conduct
toleration offense.)
clause?
How long does a Encouraged to 21 days from Any time
student have to do so within the time a before the
report an honor 2 days, but witness alleged
code violation? can report becomes aware offender
any time of the graduates and
before the violation. receives a
alleged commission.
offender
graduates and
receives a
commission.
What, if any, Two attorneys The Navy's Two attorneys
defense from the Judge who report to
counseling is Academy's Advocate the Director,
provided to a Staff Judge General, Headquarters,
student charged Advocate, who Office of U.S. Air
with a falls under Legal Force Trial
violation? the Counsel, Defense
Superintenden provides an Judiciary.
t in the attorney for
chain of midshipmen.
command. Counsel
reports to
Anacostia
Naval
Station.
How many votes 6 of 9 votes 6 of 9 votes 6 of 8 votes
are required by by the cadet by the by the 7
the members of midshipmen cadets and 1
adjudicatory the honor members of field grade
panel to investigative the honor officer
convict a hearing. board. comprising
student of an the honor
honor code investigative
violation? board.
What is the A A Proof "beyond
"standard of "preponderanc "preponderanc a reasonable
proof" required e of e of doubt."
at each academy evidence." evidence."
to establish
guilt?
------------------------------------------------------------
ACADEMIES DIFFER REGARDING
NON-TOLERATION CLAUSE
-------------------------------------------------------- Chapter 2:3.1
The honor codes of the Military and Air Force academies have an
explicit non-toleration clause. That is, they both include language
that makes it an honor offense to allow an honor violation to go
unreported. The Naval Academy's honor concept does not have such a
clause.
While the honor concept of the Naval Academy does not include such a
clause, midshipmen are not free to ignore honor violations. The
Academy's honor instruction requires that anyone learning of what may
be a violation of the honor concept must take one of four options.
The options are (1) immediately report the evidence to the Brigade
Honor Committee or discuss the incident with the suspected offender
and then, (2) report the offender, (3) formally counsel the offender,
or (4) take no further action if it appears that no violation was
committed. In 1994, the Academy began requiring that a formal
counseling sheet be turned in to the Brigade Honor Chair through the
Company Honor Representative when the counseling option is chosen.
The counseling record is retained until the midshipman's graduation
for use in the character development program should more than one
counseling sheet be received. Failure to take one of the required
courses of action constitutes a 5000-level conduct offense, the
highest nonseparation offense level for a midshipman.
The non-toleration clause is one of the most controversial elements
of the honor codes. In 1975, we reported that the Military Academy's
studies indicated that non-toleration was one of the biggest problems
for cadets and that toleration generally increased as a cadet
progressed through his 4 years.\4
Proponents of the non-toleration clause see self-policing as
essential for making the honor code work effectively and to
convincingly make the point that the individual has a duty to society
that outweighs the bonds of friendship. Proponents have also stated
that they do not see reporting one's peers as contrary to societal
norms when it comes to public service. They cite, as examples, the
duty of a lawyer to report a subornation of perjury, the duty of a
practicing engineer to report falsification of design data, and the
duty of an airline crew member to report a pilot for unauthorized
drinking.
Despite these arguments, the non-toleration clause remains
controversial. Critics point out that it requires a person to inform
on his/her friends, which may conflict with a person's individual
sense of honor and personal integrity. These critics cite the
following as support:
Douglas MacArthur, when disobeying orders to disclose the names of
cadets guilty of hazing him, was quoted as saying: "My father
and mother have taught me these two immutable principles--never
to lie, never to tattle."\5
A federal court has stated "we cannot fail to note that honorable
students do not like to be known as snoopers and informers
against their fellows, that it is most unpleasant even when it
becomes a duty."\6
Beyond the question of the reluctance to inform on one's peers, there
is also some controversy with regard to the effectiveness of the
clause. One critic has stated that since the large-scale cheating
scandals were not discovered until they had encompassed a fairly
large number of students, the clause may not be that effective. Some
have also suggested that the non-toleration clause could actually
contribute to large-scale cheating scandals because students could be
deterred from turning in their peers for fear that those whom they
turn in could retaliate by reporting them for past violations of the
code. Finally, the non-toleration clause has been criticized as
failing to recognize the importance of developing the ability in the
students to exercise judgment and discretion about what should be
done in any given case.
--------------------
\4 Academic and Military Programs of the Five Service Academies
(GAO/FPCD-76-8, Oct. 31, 1975).
\5 Rose, Michael T. A Prayer for Relief: The Constitutional
Infirmities of the Service Academy Honor, Conduct, and Ethics
Systems, New York University Law School, 1973 (p. 178).
\6 Zanders v. Louisiana State Board of Education, 281 F.Supp. 747
(1968), p. 759.
TIME LIMIT FOR REPORTING
HONOR VIOLATIONS
-------------------------------------------------------- Chapter 2:3.2
At both the Military and Air Force academies, an honor violation can
be reported any time up until the alleged offender graduates and is
commissioned. Neither of their honor systems requires that an
accuser report a violation within a specified period of time, even
though failure to report a violation is considered to be toleration,
which is itself an honor violation. Military Academy officials told
us that cadets are expected to approach a suspected cadet within 24
hours and that another 24 hours is allowed for the individual to
report to the honor representative.
At the Naval Academy, a midshipman who suspects or becomes aware of a
possible honor violation must take action within 21 days. The
purpose of this reporting period deadline is to provide a potential
accuser with enough time to approach a possible offender to confirm
the violation and decide on an appropriate course of action, and yet
avoid a situation where someone's own past violation could be used to
pressure him/her into ignoring another person's violation. Allowing
an unlimited time to report is also seen as potentially unfair in
that it may require a midshipman to defend his/her actions in an
incident that may have faded from the individual's memory and the
memory of other potential witnesses.
ORGANIZATIONAL INDEPENDENCE
OF DEFENSE COUNSEL
-------------------------------------------------------- Chapter 2:3.3
Each of the academies provides accused students with legal counsel at
no cost. The attorneys who counsel cadets accused of honor
violations at the Military Academy are under the Staff Judge
Advocate's office, which is part of the Superintendent's chain of
command. At the Naval Academy, the legal advisor reports outside of
the Academy's chain of command to the Navy Judge Advocate General. A
recent change at the Air Force Academy now has its defense attorneys
reporting to the Director, Headquarters, U.S. Air Force, Trial
Defense Judiciary.
The placement of student legal counsel within the academies' chain of
command raises the issue of whether their independence may be
compromised. This issue was raised in the 1976 cheating scandal at
the Military Academy, when several Army lawyers counseling accused
cadets complained that Military Academy officials were interfering
with their efforts to defend their cadet clients. An investigation
conducted by the Army's Deputy General Counsel and the Chief Judge of
the Army Court of Military Appeals concluded that several of the
complaints of harassment of defense attorneys were well-founded.
REQUIREMENTS FOR CONVICTION
-------------------------------------------------------- Chapter 2:3.4
In any adjudicatory proceeding in which facts are in dispute,
adjudicatory board members can never be completely certain about what
happened. Instead, they must develop a belief about what probably
happened. Sometimes, they may wrongly conclude either that an
innocent person is guilty or that a guilty person is innocent. The
relative frequency of these two types of errors is affected by the
number or proportion of panel members who must be convinced that a
violation occurred and how convinced they must be.
In theory, the more people who must be convinced, and convinced to a
higher degree of certainty, the stronger the evidence that would be
needed for a conviction. Consequently, it is more difficult to
convict in general. Conversely, the fewer the people who must be
convinced of guilt, and the more doubt they are allowed to have about
their guilty verdict, in theory the less evidence would be needed to
convict. This situation would make it easier to convict innocent
persons as well as the guilty. Therefore, two factors relevant to
obtaining convictions are the degree of consensus required within the
adjudicatory board and the required standard of proof.
THE NUMBER OF "GUILTY"
VOTES NEEDED FOR
CONVICTION
------------------------------------------------------ Chapter 2:3.4.1
In a civilian criminal trial in most states, a jury must be unanimous
with regard to a guilty verdict. In military trials (general
courts-martial), two-thirds of the members must agree before a person
can be convicted (except for offenses for which the death penalty is
mandatory, in which case the verdict must be unanimous).
The number of guilty votes needed for an honor conviction varies
among the academies. A guilty verdict requires a two-thirds majority
(six of nine) at both the Military and Naval academies and a
three-fourths majority (six of eight) at the Air Force Academy. At
the Military and Naval academies, only students serve on honor
hearing boards, while at the Air Force Academy the board consists of
seven student members and one field grade officer.
Until 1994, the Naval Academy had required only a simple majority
(four of seven) for a guilty finding. When we reviewed the academies
in the mid-1970s, conviction of an honor offense required the
unanimous vote of 12 board members at the Military Academy, 5 votes
out of 7 board members at the Naval Academy, and a unanimous vote of
an 8-member honor board at the Air Force Academy. Today's less
rigorous consensus requirements came into being because academy
officials were concerned that too many acquittals resulted from the
"not guilty" votes of one or two board members.
THE STANDARD OF PROOF
NECESSARY FOR CONVICTION
------------------------------------------------------ Chapter 2:3.4.2
The standard of proof determines the degree of certainty necessary in
an individual honor board member's mind before he or she should
conclude that a violation occurred. It represents an attempt to
instruct adjudicatory panel members concerning the degree of
confidence they should have in the correctness of their conclusions.
The standard of proof required typically depends on the nature of the
case:
The standard of proof required in civilian criminal cases is proof
"beyond a reasonable doubt." With regard to degree of confidence
in such a finding, this standard has been defined as "fully
satisfied," "entirely convinced," and "satisfied to a moral
certainty."
The standard of proof ordinarily used in civil cases is
"preponderance of the evidence." This refers to evidence that is
of greater weight or more convincing than the evidence that is
offered in opposition to it, that is, evidence that as a whole
shows that "the fact sought to be proved is more probable than
not."
Use of the less stringent "preponderance of the evidence" standard
reduces the risk that a guilty person will avoid conviction, but it
simultaneously increases the risk that an innocent person will be
wrongly convicted. Use of the more stringent "beyond a reasonable
doubt" standard, on the other hand, reduces the risk that an innocent
person will be wrongly convicted, while it increases the risk that a
guilty person will escape conviction.
The "preponderance of the evidence" standard, in setting the two
kinds of risks as essentially equal, implicitly assumes that it is no
more serious to convict an innocent person than it is to acquit a
guilty person. Whereas, the "beyond a reasonable doubt" standard
implicitly assumes it is far worse to convict an innocent person than
it is to acquit a guilty one. This latter assumption is consistent
with the principle derived from English common law that "it is better
that ten guilty persons escape than that one innocent suffer."\7
The Naval and Military academies require that honor verdicts be based
on a "preponderance of the evidence." The Air Force Academy, however,
uses the more stringent "beyond a reasonable doubt" standard.
--------------------
\7 Blackstone, Sir William, Commentaries on the Laws of England, Book
4, Philadelphia, PA: Rees Welsh and Company, 1898, p. 1743.
SIMILARITIES AMONG THE ACADEMY
HONOR SYSTEMS
---------------------------------------------------------- Chapter 2:4
While there are a number of differences among the academy honor
systems, there are also a number of similarities. For example, at
each academy,
students are elected by their peers to serve on the honor committee
and administer the honor system,
investigations of alleged violations are conducted by students,
students are involved in determining whether an offense has
occurred and not in determining what should happen to a
convicted student,\8 and
the service secretary has the final decision on whether a
cadet/midshipman will be separated.\9
Another similarity is that the inferred intent of the accused is the
key factor that determines whether an offense has occurred. For
example, consider the offense of "lying." There are two aspects to
the offense. One is the question of whether what was said or
indicated was, in a factual and objective sense, "true" or "false."
Making a false statement does not, in itself, constitute an honor
violation. Rather, the determining factor is the individual's
intent. This leads to the possibilities shown in table 2.2.
Table 2.2
Determination of an Honor Offense
Assessment of intent True False
-------------------- ------------------ ------------------
To tell the truth Not a violation An error, but not
a violation
To mislead A violation\a A violation
------------------------------------------------------------
\a There has been at least one case where a student has been expelled
for an honor violation based on intent to mislead although the actual
statement the student made was found to be true.
--------------------
\8 At the Air Force Academy, cadet honor boards may make
recommendations to the Commandant regarding sanctions. The
Commandant is not compelled to follow their recommendations but has
been consistent with cadet recommendations in over 95 percent of the
cases.
\9 The Air Force Academy recently proposed a change to the Secretary
of the Air Force that would give the Superintendent the authority to
separate third and fourth class students who have been found guilty
of an honor offense.
DISCRETION IN IMPOSING
SANCTIONS
-------------------------------------------------------- Chapter 2:4.1
If a person is found to have committed an honor violation, academy
officials determine what sanction should be applied. This
determination requires a subjective assessment of whether the honor
violation was an isolated incident not indicative of the individual's
true character (in which case the individual would likely be
retained) or was an indication of an ingrained character flaw (in
which case the individual would likely be separated).
Historically, the punishment for anyone convicted of an honor offense
was almost always separation. Over the last several decades, the
authority of academy officials to impose sanctions other than
dismissal has increased. Academy officials now consider such factors
as how long the student has lived under the honor code/concept,
whether the offense was self-reported, whether the individual
admitted the offense, and whether there were any previous violations
in determining the disposition of a case. Over the 3-academic year
period 1991-94, the percentages of those who admitted or were
convicted of honor offenses who were separated from the academies
were 28 percent at the Military Academy, 20 percent at the Naval
Academy, and 8 percent at the Air Force Academy.
HONOR SYSTEM DUE PROCESS
PROVISIONS
---------------------------------------------------------- Chapter 2:5
Based on a review of the rules and procedures governing the honor
system and the views of academy officials, we assessed whether and
how the honor system at each academy provided the various due process
elements. Table 2.3 lists the due process elements and summarizes
the results of our assessment. In general, the academies are fairly
similar with regard to the due process protections their honor
systems provide students. Overall, more than half of the due process
rights are provided for in full by the academy honor systems, while
there are limitations or qualifications on the extent to which the
others are provided.
Table 2.3
Due Process Elements in the Academy
Honor Systems
Military Air Force
Element Academy Naval Academy Academy
--------------- ------------- ------------- -------------
Right to Yes, 7 days' Yes, 3 Yes, 2
adequate notice minimum working days' working days'
notice. minimum minimum
notice. notice.
Right to an Open to DOD Not open to Open only to
open hearing personnel, family or cadets and
cadets, and nonacademy academy
family. friends. faculty/
staff, unless
accused
elects to
have it
closed.
Right to an Yes. Yes. Yes.
impartial
tribunal
Right to Yes. Yes, but Yes.
present making a
argument statement can
result in
loss of right
to remain
silent.
Right to Yes. Yes. Yes.
present and
cross-examine
witnesses
Right to know Yes. Yes. Yes.
opposing
evidence
Right to Limited to Limited to Limited to
representation advice advice advice
by counsel outside the outside the outside the
hearing. hearing. hearing.
Right to have Yes. Yes. Yes.
decisions based
solely on the
evidence
presented
Right to a Partial. Partial. Partial.
complete record While a While a While an
of the transcript is transcript is audio tape
proceedings, provided, it provided, it copy of the
including the does not does not Wing Honor
rationale for address the address the Board
the verdict rationale for rationale for proceedings
the verdict. the verdict. is available,
it does not
address the
rationale for
the verdict.
Right to an Partial. The No. Reviews Partial. The
independent case file is of the case Superintenden
appellate reviewed by file are for t and the
review the Staff procedural Academy Board
Judge errors and review the
Advocate, the errors of case file.
Commandant, fact, not an
and the independent
Superintenden assessment.
t.
Right to remain Yes, after Yes, after Yes, after
silent being being being
accused. accused. accused.
Right to have No. No. No.
involuntary
confessions
excluded
------------------------------------------------------------
RIGHT TO ADEQUATE NOTICE
-------------------------------------------------------- Chapter 2:5.1
The minimum amount of notice required to be provided to a student
being charged with an honor offense varies from 2 working days at the
Air Force Academy to 7 days at the Military Academy. If an
individual has been charged with an honor offense, each academy
relieves that person from most other obligations so that he/she can
focus on preparing for his/her defense. We found no indications in
any of the cases we reviewed or in any of the interviews with
attorneys that students did not have adequate time to prepare their
defense. Also, each academy indicated that students can request more
time if needed.
RIGHT TO AN OPEN HEARING
-------------------------------------------------------- Chapter 2:5.2
This element helps to ensure the fairness of hearings by subjecting
them to outside scrutiny. In the case of honor hearings, the
academies recognize an accused's right to privacy. At all three
academies, hearings are closed to the public at large.
The Military Academy allows DOD personnel with official interest in
the proceeding, cadets, and family to be present during the hearing.
The Commandant has the discretion to allow others to observe if their
attendance would not have an adverse effect on the fairness and
dignity of the hearing or the cadet's right to privacy. The
accused's attorney may be present during the entire hearing but must
sit in the observer section and not represent the accused.
At the Naval Academy, the hearing is not open to family or friends.
Military and civilian personnel with ties to the Academy may observe
hearings at the discretion of the presiding officer. The accused's
attorney is not allowed to attend the hearing, even as an observer.
The Air Force Academy allows an accused to elect to have the hearing
closed to observers. If closed, the accused may have his/her Air
Officer Commanding\10 present. If the hearing is open, cadets and
academy faculty and staff may attend, and the accused's attorney is
allowed to attend the hearing as an observer. Family and nonacademy
friends are not allowed to attend.
--------------------
\10 Each of the academies has assigned commissioned officers to
directly oversee the students in each company or squadron. These
officers are called Tactical Officers at the Military Academy,
Company Officers at the Naval Academy, and Air Officers Commanding at
the Air Force Academy.
RIGHT TO AN IMPARTIAL
TRIBUNAL
-------------------------------------------------------- Chapter 2:5.3
Each of the academies has procedures aimed at ensuring that honor
board members will be unbiased by prior knowledge, a close or
antagonistic relationship with either the accused or a key witness,
disposition, or belief. One of these procedures involves drawing
board members from across the academy. In addition, each academy
requires board members to recuse themselves if they feel that they
cannot be impartial. While none of the academies allows "preemptory"
challenges, each stated it considers any challenges for cause.
RIGHT TO PRESENT ARGUMENT
-------------------------------------------------------- Chapter 2:5.4
Each of the academies allows an accused to make statements and
present evidence. At the Military Academy, a hearing is usually
recessed before final argument to allow an accused to prepare a
closing statement. The accused may seek the advice of counsel in
preparing the statement. At the Air Force Academy, an accused may
request a recess to consult with counsel before making a closing
statement.
A midshipman accused of an honor offense at the Naval Academy has the
right to make an oral or written statement before the honor board.
However, if an accused makes such a statement, the honor board
members may ask questions on the issues raised. Failure to respond
to any questions may result in the instruction from the presiding
officer that the board not consider the accused's statement.
Defense attorneys who have assisted accused students stated that the
right to present argument is, in effect, somewhat qualified since
students are not particularly skilled at presenting argument and are
sometimes too emotionally involved to be able to make a cohesive and
convincing case. Although the defense attorneys acknowledge that
they are allowed to advise an accused in preparing for the hearing
and during recesses, they believe their effectiveness is hindered
because they cannot hear the testimony and present questions and
argument firsthand.
RIGHT TO PRESENT AND
CROSS-EXAMINE WITNESSES
-------------------------------------------------------- Chapter 2:5.5
Each of the academies allows an accused student to present and
question witnesses, directly or indirectly. Character witnesses,
however, are generally not allowed. At the Air Force Academy, the
accused's questions are asked through the Group Honor Chairperson,
while at the Military and Naval academies the accused student
questions and cross-examines witnesses directly.
Defense attorneys raised questions regarding the efficacy of students
in cross-examining witnesses. The concerns they raised are that
students
are too closely involved to question witnesses effectively;
are not skilled at quickly analyzing the answers they receive and
asking effective follow-up questions;
are sometimes intimidated when the witness is a commissioned
officer; and
often try to imitate lawyers they have seen on television and in
movies, and they are generally not effective at doing this.
One defense attorney discouraged students from cross-examining
witnesses because it usually hurt them more than it helped. Another
referred to the right to cross-examine as a "hollow" right since the
accused students did it so poorly.
RIGHT TO KNOW OPPOSING
EVIDENCE
-------------------------------------------------------- Chapter 2:5.6
While there is no formal "discovery" process, an accused is generally
provided with copies of all statements and access to all evidence
gathered in the honor investigation. An accused is free to gather
additional evidence and obtain statements.
One of the defense attorneys stated that he had encountered a problem
with regard to access to all evidence when several accused students
were involved. To protect the privacy of all of the accused
students, each of the accused was given access only to the evidence
and statements that were judged by academy authorities to be directly
relevant to that individual's case. In addition, some of the
evidence that was provided was heavily redacted with the names and
statements of other involved students removed. This raised a concern
among the defense attorneys that some potentially exculpatory
information may not come to the attention of the accused.
Additionally, a concern was raised about delays in getting access to
the evidence and official investigation reports.
RIGHT TO REPRESENTATION BY
COUNSEL
-------------------------------------------------------- Chapter 2:5.7
Each academy informs students accused of honor violations that they
have a right to consult legal counsel and, as noted earlier, each
provides attorneys to advise students free of charge. In addition,
students may engage outside counsel at their own expense.
The academies base their honor system proceedings on an
administrative (or nonadversary) model. The nonadversary model
involves the decisionmaker (who may be a judge or a board) learning
about the case from an investigator, who is supposed to be neutral
and present all aspects of the case. The decisionmaker tends to play
a more active role in questioning witnesses. The investigator is not
expected to act in a partisan manner or as a prosecutor. The
defendant is expected to represent himself/herself. The adversary
model, on the other hand, involves the decisionmaker learning about
the case from the presentations of adversarial advocates, one
representing the interests of the plaintiff or prosecution and one
representing the interests of the defendant. Each advocate attempts
to present facts that are favorable to the side he/she represents and
may oppose each other's presentations through questioning and
rebuttal. The decisionmaker generally plays a relatively passive
role in the questioning and witness examining processes, which is
conducted primarily by the advocates. This is the model used in
civil and criminal trials and in courts-martial.
In the academies' honor hearings, the role of legal counsel is
limited to providing advice. Counsel is not allowed to represent or
speak for the accused during the honor hearing or any of the reviews
that may follow a finding of guilt. The reasons cited by the
academies for not allowing legal counsel to speak for the accused
include
there is no prosecutor or government counsel presenting a case to
the board;
students would resent the intrusion of attorneys into their honor
system;
allowing the accused to be represented by counsel would likely lead
to pressure for an attorney to represent the government's
interests;
hearings would become too legalistic and cause lengthy delays and
increased processing time; and
legal discussion of objections, evidence, and case law could
confuse or intimidate the board.
Defense attorneys raise the old adage, "He who represents himself has
a fool for a client." They believe that calling the hearings
"nonadversarial" is window dressing and that contested hearings are
very confrontational. According to one defense attorney, there is no
situation more adversarial than when someone's honor and character
are called into question and, given the potentially life-long
implications of being found lacking in honor, the accused deserves to
be fully represented.
Defense attorneys indicated that, while no one plays the role of
prosecutor, the investigator who presents the evidence cannot
realistically be considered neutral since the investigator's
conclusions about what occurred play a major role in determining
whether a board is held and the official charges were drafted by the
investigator. Since it is likely that the investigator believes that
a violation has occurred, there is a danger that the investigator
might inadvertently communicate that belief to the board.
RIGHT TO HAVE DECISIONS
BASED SOLELY ON THE EVIDENCE
PRESENTED
-------------------------------------------------------- Chapter 2:5.8
The honor boards are supposed to consider only the information that
is presented at the hearing. There are no formal rules of evidence
and any information considered reasonably relevant to the issues in
question will typically be allowed.
For the reviews that follow a guilty finding, additional information
is considered. Information on the individual's military, academic,
and physical performance and conduct record is included in the review
package. Each of the academies allows the individual to review and
respond to the additional information. In addition, the individual
may provide character reference statements for consideration at this
stage.
RIGHT TO A COMPLETE RECORD
OF THE PROCEEDINGS,
INCLUDING FINDINGS OF FACT
AND REASONS FOR THE DECISION
-------------------------------------------------------- Chapter 2:5.9
Each of the academies tape-records honor board hearings. The Naval
and Air Force academies use these recordings to provide an individual
who is found guilty with a copy of the verbatim transcript. At the
Military Academy, an individual is given a nearly verbatim record of
the board proceedings.
None of the academies provide the individual with the rationale for
the board's decision. Academy officials said that board decisions
are the product of the individual votes of the members and that each
of them may have had different reasons for the way they voted.
Academy officials also stated that this practice of not requiring
board members to explain or justify their individual votes is
consistent with the way criminal and civil juries operate.
RIGHT TO AN INDEPENDENT
APPELLATE REVIEW
------------------------------------------------------- Chapter 2:5.10
A finding of not guilty is not reviewable. Each of the academies has
a multistep review process that each guilty verdict automatically
undergoes. The review processes are intended to identify whether
there were any legal shortcomings that may have worked to the
disadvantage of the accused. The commandant or superintendent at
each academy can overturn a guilty finding based on legal or
procedural errors. In addition, the commandant and superintendent at
the Military and Air Force academies are required to independently
assess the sufficiency of the evidence supporting the guilty finding.
While some of the reviewers may meet with the accused and others and
conduct an informal hearing, they do not conduct a new hearing.
In all cases where the academy recommends separation, the final
decision is made by the service secretary. Cases are typically
reviewed by the secretary's legal counsel, and the authority to
approve or reject the recommendation is generally delegated to an
assistant secretary. The secretariat reviews consist of examining
the reported findings as presented by academy officials and a
statement from the accused. A new hearing is not conducted.
At the Military Academy, the Staff Judge Advocate conducts a legal
review of the case. The case then goes to the Special Assistant for
Honor, who reviews it and makes recommendations to the Commandant,
who, in turn, reviews the case and makes recommendations to the
Superintendent.
At the Naval Academy, the Commandant's legal advisor reviews the case
file and advises the Commandant with respect to sufficiency of
evidence. The Commandant then reviews the case file and holds an
informal hearing to determine the disposition of the case. If the
Commandant recommends separation, the case file is forwarded to the
Superintendent, through the Superintendent's Staff Judge Advocate. A
1994 change to the honor process has limited the scope of the
Commandant's and the Superintendent's reviews. Prior to the change,
the Commandant and the Superintendent were both required to (1)
independently weigh the evidence and judge the credibility of the
witnesses, (2) determine contested questions of fact, (3)
independently determine if the finding of a violation was established
by a preponderance of the evidence of record, (4) approve only those
findings that were correct in law or fact, and (5) consider matters
in extenuation and mitigation. As a result of the change, the roles
of the Commandant and the Superintendent are now limited to (1)
reviewing the record and disapproving findings that are clearly
erroneous, (2) disapproving findings from an honor board during which
a procedural violation occurred that cannot subsequently be remedied,
and (3) returning a case to the honor board or a new board to
consider newly discovered evidence, in addition to the fourth and
fifth responsibilities that were retained. Gone is the language
requiring a full, independent review of the case.
At the Air Force Academy, the Commandant reviews the case and
recommends sanctions. The 10-member Academy Board reviews all cases
when the individual has been recommended for separation.
The academies cite their multilevel review processes as, in effect,
constituting independent appellate reviews and point to the fact that
verdicts have been overruled at the academy or secretariat levels as
proof of independence. However, some defense attorneys question
whether the reviews are truly independent. They believe that academy
officials are often too deferential to the verdict of the honor
boards for fear of arousing the resentment among the student body or
charges of favoritism if a guilty verdict is overturned. Our review
of some case files found occasional statements in transmittal
documents from academy officials in the review chain who, although
voicing considerable doubt about a given verdict, indicated they did
not want to overturn a student board verdict. However, at each
academy we found cases of verdicts being overturned by academy
officials.
RIGHT TO REMAIN SILENT
------------------------------------------------------- Chapter 2:5.11
Each of the academies provides students suspected of an honor
violation with the right to remain silent, once they have been
officially charged. This right is protected during an honor
investigation by requiring that accused students be informed of the
right to remain silent and acknowledge in writing that they have been
informed of that right.
The Naval Academy does not grant the right to remain silent before an
individual is officially accused of an honor violation.
Consequently, a faculty or staff member or another student can
question a suspected student about an incident and that student would
be expected to respond fully, even if it resulted in that student
implicating himself/herself in a conduct or honor violation.
Officials at the Military and Air Force academies indicated that
cadets have no obligation to answer questions from other students or
faculty members concerning a suspected honor violation. However,
should the cadet elect to respond, it is expected that the reponse
would be truthful. Air Force Academy officials also stated that a
cadet may terminate any interrogation at any point and request legal
counsel.
Several defense attorneys stated that granting the right to remain
silent only after the decision to file charges has been made
essentially nullifies that right because the individual may have
already been compelled to admit a violation.
In addition, a defense attorney pointed out that Article 31, UCMJ,
forbids anyone subject to UCMJ from compelling any person to
incriminate himself or to answer any question that may tend to
incriminate him. Since an honor violation could conceivably be
charged as a violation of military law, that attorney indicated that
requiring a person to provide a statement prior to an actual charge
could itself be a violation of UCMJ.\11
Defense attorneys also noted that one of the common criticisms of the
honor systems is that they have been misused as a way of enforcing
other academy regulations by requiring that students either admit to
violations of rules and policies or risk escalating the offense into
one that carries the potential punishment of separation. Sensitive
to this criticism, each academy has identified certain kinds of
questions such as "fishing expedition" questions or questions aimed
at confirming something that is already apparent (e.g., asking an
obviously intoxicated student whether he/she has been drinking) as
being inappropriate and trivializing the honor system. However, each
academy still requires accused students to answer the questions and
to lodge a complaint about the inappropriate question later. A
defense attorney indicated that this after-the-fact request for a
review did not provide any real protection.
--------------------
\11 A 1989 study done for the Assistant Superintendent at the Coast
Guard Academy concluded that every offense against the Academy's
cadet regulations (which are essentially similar to those at the
three DOD service academies) could be seen as an offense under UCMJ
(as either article 133, conduct unbecoming an officer, or article
134, the General Article, as an offense prejudicial to good order and
discipline, or another specific article) and that a cadet therefore
had "reasonable cause to apprehend danger that he may incriminate
himself by answering questions."
RIGHT TO HAVE INVOLUNTARY
CONFESSIONS EXCLUDED
------------------------------------------------------- Chapter 2:5.12
None of the academies grants students an automatic right to have
admissions or statements they may have made before being given the
right to remain silent excluded from consideration in the hearing.
However, the board hearing officer at the Military Academy, the honor
board presiding officer at the Naval Academy, and the Group Honor
Chairman or Chief of the Honor and Ethics Division at the Air Force
Academy can exclude such statements or other evidence if they believe
its use would be inappropriate or unfair.
ADDITIONAL HONOR SYSTEM ISSUES
---------------------------------------------------------- Chapter 2:6
Defense attorneys and others have raised a number of additional
criticisms and concerns about the academy honor systems. Among the
concerns raised are that honor proceedings lack adequate standards of
evidence, honor boards are too dependent upon subjective inferences
of intent, students are penalized for conducting a vigorous defense,
students have been expelled for trivial acts, honor punishments are
sometimes disproportionately severe, and a separate honor system is
not needed.
LACK OF FORMAL EVIDENTIARY
PROCEDURES
-------------------------------------------------------- Chapter 2:6.1
Several defense attorneys mentioned the lack of formal evidentiary
procedures as a problem. Because honor boards are considered
administrative proceedings, formal rules of evidence are not applied.
Defense attorneys said that they have seen hearsay, conjecture, and
other forms of questionable evidence presented before honor boards.
A related concern involved sufficiency of evidence. In many honor
cases, particularly those involving the charge of lying, defense
attorneys said there is relatively little "hard evidence" (such as
physical or documentary evidence) that board members can directly
examine on their own. Instead, much of the evidence is
circumstantial or testimonial in nature--especially with regard to
the key issue of intent. They said that this can be particularly
problematic in cases involving the word of one person against the
word of another, and they expressed concern that students have been
found guilty based on nothing other than the testimony of their
accuser.\12 Such cases also illustrate the difference between the
evidentiary requirements in academy administrative versus military
judicial hearings. In a trial for "perjury," the Manual for
Courts-Martial states that no one can be convicted of that offense
based solely on the testimony of a single witness. Only the Air
Force Academy has a policy that states that an accused cadet who
denies the charge cannot be convicted based solely on the
uncorroborated testimony of another person.
--------------------
\12 In one Naval Academy honor case we examined, a midshipman who
denied lying was found guilty solely on the uncorroborated testimony
of his accuser.
HONOR BOARDS TOO DEPENDENT
ON SUBJECTIVE INFERENCES OF
INTENT
-------------------------------------------------------- Chapter 2:6.2
As noted earlier, the key factor in determining whether an honor
violation has occurred is the inference drawn about the intent of the
individual. Defense attorneys questioned whether students in their
late teens and early 20s have the maturity of judgment and
perspective to make such highly subjective judgments where the
consequences can taint an individual for life, noting that it seemed
ironic that the honor system was virtually the only area of academy
life where academy authorities treated students as though they were
responsible adults.
Questions have also been raised about the students' ability to
determine who is telling the truth and who is not. Attempts to
detect deceit are typically based on the assumption that telling a
lie is readable in a person's involuntary physiological responses.
In cases where most, if not all, of the evidence is testimonial and
circumstantial in nature, achievement of just outcomes is highly
dependent upon the board's ability to determine who is telling the
truth.
Ekman and O'Sullivan (1991)\13 recently reviewed the research
literature on the ability of people to detect lying. They concluded
that 20 years of research in this area indicates that little
confidence should be placed in judgments, by laymen or experts, about
whether someone is lying or telling the truth. Over all the studies,
the average accuracy in detecting deceit has rarely been above 60
percent (with chance being 50 percent), and college students have
tended to do worse than others, sometimes choosing less accurately
than chance.
--------------------
\13 Ekman, P. and O'Sullivan, M. (1991). "Who can catch a Liar?"
American Psychologist, 46: 913-920.
STUDENTS ARE PENALIZED FOR
CONDUCTING A VIGOROUS
DEFENSE
-------------------------------------------------------- Chapter 2:6.3
One defense attorney stated that accused students were, in effect,
penalized for conducting a vigorous defense\14 and trying to prove
their innocence. This reportedly occurs because academy officials
tend to take the admission of guilt and the expression to willingness
to accept the consequences as the primary evidence of remorse and
commitment to live honorably. This sets up the ironic situation
where, given the same circumstances, a guilty person is more likely
to be retained at the academy than an innocent person. The reason
for this is that an innocent person with a high sense of honor would
probably be unwilling to falsely admit guilt and claim to have
learned a lesson from the incident, which would tend to be
interpreted by academy officials as lack of remorse. The guilty
person, on the other hand, would probably be more willing to make
such an act of contrition, especially if he/she were not really
sincere.
Our review of the documents in honor case files indicated that
inferences about the remorse of the convicted person is an important
factor in determining the recommendations of academy officials
regarding the disposition of the case. Also, many of the
recommendations in the files stated that the continued insistence
that the accused did not intentionally commit an honor violation was
an indication of lack of remorse.
--------------------
\14 Academy officials stated that a vigorous defense reduces the
probability of an adverse decision against those innocent of
allegations. Officials also pointed out that their review of cases
showed a vigorous defense to be the rule, rather than the exception.
STUDENTS HAVE BEEN EXPELLED
FOR TRIVIAL OFFENSES
-------------------------------------------------------- Chapter 2:6.4
One criticism of the honor systems is that they make no distinctions
among offenses by degrees of seriousness. Critics point out that
students have been found guilty and expelled from the academies for
trivial offenses. In a 1974 book, a former West Point psychiatrist
cited cadets being forced to resign or expelled for honor offenses
such as quibbling over status as a nonvirgin, telling a squad leader
that shoes were shined
4 hours before inspection rather than the night before, falsely
claiming to own a Jaguar, and falsely telling other cadets his
cookies were gone when he still had some left.\15
--------------------
\15 U'Ren., Richard C., M.D.,Ivory Fortress, New York: The
Bobbs-Merrill Co., Inc., 1974.
THE SEVERITY OF SOME HONOR
PUNISHMENTS EXCEEDS THE
SEVERITY OF THE OFFENSE
-------------------------------------------------------- Chapter 2:6.5
One defense attorney noted that some punishments appear
disproportionate to the offense, particularly when one looks at
punishments across adjudicatory systems. We were referred to the
following two Naval Academy cases that were adjudicated in the same
year by the same academy officials.
One case involved the honor system. A plebe (freshman) was being
questioned while serving noon meal to the upperclass midshipmen at
his table. An upperclassman asked him what he had done over the
weekend to improve his physical fitness. Although under no
obligation to have engaged in physical conditioning, the plebe
answered that he had gone running on Sunday. In response to
follow-up questions, he cited where and when he had run. He then
asked to discuss it later with the questioner. When his request was
denied, he stated that he had answered incorrectly and that he had
not been running. He was charged with the honor offense of lying,
was found guilty, and was separated from the academy.
The other case involved the conduct system. Several midshipman went
to a Navy athletic contest at another university. They had been
drinking prior to the game at the home of one of their classmates.
After the game, one of the midshipmen (a sophomore) physically struck
a woman in a wheelchair in a university dormitory. He was picked up
by campus police and later released into the custody of several
classmates. He then went into the local community where he
encountered a 12-year old girl who was babysitting for her next-door
neighbor. He began to curse and verbally abuse the girl, and he
struck the girl's mother when she told him to leave. He then
attempted to follow the girl into the house where she was
babysitting. He broke into the house by kicking in a plate glass
exterior door. Once inside, he broke several windows and was found
passed out on the floor by the police and arrested. He was found
guilty of five conduct offenses at the highest level of seriousness
and a lesser offense of underage drinking. He was retained at the
Academy.
SEPARATE HONOR BOARD SYSTEM
IS NOT NEEDED
-------------------------------------------------------- Chapter 2:6.6
While stating that the services have a legitimate interest in the
honesty and integrity of the officer corps, a defense attorney stated
that it does not necessarily follow that a rigid honor system,
imposed only on the academies, is a reasonable way for the services
to try to assure the honesty and integrity of the entire corps. He
noted that 85 to 90 percent of officers were commissioned through
programs that have nothing comparable to the academy honor codes. He
noted that the courts used essentially this same line of reasoning in
striking down the mandatory chapel attendance requirement that each
of the academies used to impose on cadets and midshipmen.\16 He also
stated that, since virtually any significant offense under the honor
code was also an offense under UCMJ,\17 a separate honor system was
not needed.
--------------------
\16 In Anderson v. Laird, 466 F.2d. 283, 303 (D.C.Cir. 1972), the
court stated "The concept of government necessity is undercut by the
fact that approximately 95% of the service officers do not graduate
from the Academies, and have never been subject to this compulsory
chapel requirement."
\17 A similar conclusion was reached in a study conducted by the
Coast Guard Academy.
CADET AND MIDSHIPMAN PERCEPTIONS
AND ATTITUDES REGARDING THE HONOR
SYSTEM
============================================================ Chapter 3
Our 1994 survey of students at the three academies found that they
generally saw their honor systems as fair. Determination of what
constitutes an honor violation is not as straightforward as the
wording of the codes implies. It is unclear what is or is not an
honor violation since an individual's intent is the key determining
factor. Some students see honor as "black or white" while others see
gradations. Also, there is some confusion regarding whether some
acts are honor violations or conduct violations. Some students see
the demands of the honor system as conflicting with personal loyalty.
Many students at each academy are reluctant to report honor
violations. Students also perceive that the honor standard is higher
at the academies than it is among active duty officers. Over their
4-year academy careers, student views toward honor appear to become
less positive.
STUDENTS GENERALLY SAW THE
HONOR SYSTEMS AS FAIR
---------------------------------------------------------- Chapter 3:1
Several questions assessed the perceptions of cadets and midshipmen
regarding the fairness of the honor system. Overall, academy
students saw the system as reasonably fair. However, a considerable
proportion saw a need for officer involvement and adherence to due
process protections, and most did not believe that all violators
should be expelled. In addition, many students indicated some
concerns about the honor system being used to enforce regulations and
as an easy way to remove someone from the academy.
As shown in figure 3.1, more than half of the students at each
academy believed that the honor system was administered fairly and
impartially. However, a sizeable minority of 23 to 31 percent
disagreed. The students were split concerning whether honor
violation punishments were generally appropriate to the offense.
From the wording of the question, it is not possible to determine
whether those who did not see honor punishments as appropriate
believed them to be too harsh or too lenient. However, responses to
another question on punishments indicated that most students did not
want to see the harshest punishment (dismissal) imposed for every
honor violation. When asked whether anyone found to have committed
an honor violation should be expelled, only 14 to 29 percent agreed
while 51 to 69 percent disagreed.
Figure 3.1: Student
Perceptions of the Honor System
Fairness
(See figure in printed
edition.)
Source: Responses to GAO questionnaires.
We also asked several questions aimed at assessing whether
respondents trusted the largely student-run process (see fig. 3.2).
While most of the students at each academy indicated they trusted the
student investigators and that the students were capable of fairly
administering the honor system without the involvement of officers,
there was a significant minority (18 to 28 percent) who did not fully
trust the student investigators and saw officer involvement as
needed. Although most students trusted the system, they were
generally unwilling to forego due process protections, with 42 to 50
percent of the students at each academy indicating those protections
were more than just legal technicalities and should apply in
disenrollment decisions. As a Naval Academy student responded,
"I feel our honor code can not be held higher than the U.S.
Constitution. All midshipmen still maintain their American
rights."
Figure 3.2: Student Trust in
the Honor System
(See figure in printed
edition.)
Source: Responses to GAO questionnaires.
We asked some questions concerning criticisms that have been raised
over the years about potential misuse of the honor system (see fig.
3.3). One such criticism involves use of the honor system as a tool
to enforce regulations. This issue entails using the person's honor
against him/her by asking an improper question that puts a student in
a position where he or she must either admit to some conduct
violation or commit an honor violation. For example, if an officer
heard a rumor that a student had been off-post without authorization
and then asked that student whether the rumor was true, the officer
would be using honor to enforce conduct regulations by forcing the
student to either admit to a conduct offense or risk an honor
offense. The academies have recognized this as a potential problem
that could trivialize the honor system, and each has included a
discussion of improper questioning in the guidance governing the
honor system. Over half the students at the Air Force Academy and
over one-third at each of the other two academies perceived that
honor was used to enforce regulations.
Another concern is that the honor systems can be misused as an
expedient way of removing students who are seen as not fitting in.
While about half or more of the students at each academy indicated a
belief that the honor system was not an easy way to get a
cadet/midshipman out of the academy, from 22 to 38 percent disagreed.
Figure 3.3: Student
Perceptions of Misuse of Honor
System
(See figure in printed
edition.)
Source: Responses to GAO questionnaires.
HONOR CODES/CONCEPT ARE NOT AS
STRAIGHTFORWARD AS THEY APPEAR
---------------------------------------------------------- Chapter 3:2
While the honor codes/concept appear to be simple and straightforward
in their wording, in actual practice, determination of whether or not
an honor offense has been committed is much more subjective and
greatly depends upon what inferences are drawn concerning the intent
of the cadet/midshipman in question.
We developed a set of 27 short scenarios to determine the extent of
agreement regarding what was or was not considered an honor
violation. The scenarios dealt with all three aspects of the honor
codes/concept (lying, cheating, and stealing). Some scenarios were
derived from actual honor case situations while others were
hypothetical. The scenarios were intentionally focused on "grey
area" situations. We also included a couple of scenarios that we
knew, based upon advice from academy officials, were not honor
violations.
The officials at each academy who were responsible for the honor
programs assessed each of the scenarios regarding whether it was
likely to constitute an honor violation. The 27 scenarios and the
assessments across the three academies are shown in appendix III.
Allowing for the absence of sufficient information in some of the
scenarios to allow definitive determination of the individual's
intent and the subjectivity inherent in such determinations, there
appeared to be at least some differences among the academies
regarding whether specific acts were violations of their honor
systems. In some cases, a given act (such as taking a joyride in a
government vehicle) was considered by academy officials to be a
conduct violation rather than an honor offense. Other differences
were the result of specific academy policies. For example, the
Military Academy has a policy that instructors not give the same exam
to different class sessions, which makes it permissible to ask a
friend what was on the exam.
Figure 3.4 shows the percentage of students at each academy who
indicated that a specific scenario\1 was either definitely or
probably an honor violation. As can be seen, there is little
agreement among the students at each academy with regard to what does
or does not constitute an honor violation.
Figure 3.4: Student Views
Regarding Whether Specific Acts
Were Honor Violations
(See figure in printed
edition.)
(See figure in printed
edition.)
(See figure in printed
edition.)
Source: Responses to GAO questionnaires.
--------------------
\1 The text of the items was abbreviated for use in the figure. See
appendix III for the full text of the items.
MANY CADETS/MIDSHIPMEN SEE
HONOR AS "BLACK OR WHITE"
WHILE MANY OTHERS SEE
GRADATIONS
-------------------------------------------------------- Chapter 3:2.1
While the honor codes/concept are stated in absolute terms (i.e., any
act of lying, cheating, or stealing is a violation), many academy
students see honor not as a matter of "black or white," but as
varying "shades of grey." This is not a new issue. In a 1973 book,
Galloway and Johnson wrote:
"The absolute nature of the system makes it difficult for
graduates to differentiate between insignificant moral problems
and those of great moment, for within their frame of reference
it is the form of the situation which matters. Ethical acumen
is discouraged where honor and integrity are defined in
clear-cut, black-or-white terms. As the cadets are told at
their orientation talks, honor is like virginity--you've either
got it or you don't".\2
Academy students were basically split with regard to whether all
honor offenses were equally serious (see fig. 3.5). About 40
percent at each academy indicated that any violation of the honor
code/concept was significant, while about 40 percent saw some honor
violations as less serious than other violations. Example comments
follow.
"There are no 'LITTLE WHITE' LIES SIR." (Naval Academy
midshipman)
"I think your questions on honor situations contain too many
black and white answers. Honor is not clean cut." (Air Force
Academy cadet)
Figure 3.5: Student Views
Regarding Whether All Honor
Offenses Are Equally Serious
(See figure in printed
edition.)
Source: Responses to GAO quesionnaires.
The scenario items offer some clues regarding what kinds of acts are
more likely to be seen as violations.
Deceptive acts involving official reporting or accountability
issues (such as falsifying a roster, shading a report, or using
a false identification) had a higher percentage of respondents
indicating it was an honor violation than acts that involved
only personal issues (e.g., lying about having a date).
A lie told to benefit the teller or take advantage of someone was
more likely to be seen as an honor violation than if it was told
to benefit someone else.
Scenarios that involved gaining an unfair academic advantage (e.g.,
getting unauthorized help on a homework assignment) were likely
to be seen as honor violations.
Scenarios involving direct verbalized deception were more likely to
be seen as honor violations than were scenarios in which the
deception was indirect or implied, but not verbalized. For
example, while a cadet/midshipman who is below the legal
drinking age and who orders an alcoholic beverage could be seen
by some as falsely implying that he/she is entitled to be
served, as long as the individual did not verbally claim to be
of age or present a false identification, many respondents saw
no honor violation.
Many academy students (from 23 percent at the Naval Academy to over
40 percent at the other two academies) saw toleration of an honor
offense as much less serious than other offenses (see fig. 3.6).
Toleration was more likely to be seen as a less serious offense at
the two academies with a non-toleration clause than it was at the
Naval Academy where toleration is a conduct offense, not an honor
offense.
Figure 3.6: Student Views on
the Seriousness of Toleration
(See figure in printed
edition.)
Source: Responses to GAO questionnaires.
Write-in comments indicated that the toleration issue caused
considerable consternation among students. For example,
"The toleration clause of the honor code is only teaching us to
be little tattle tales. Sounds childish, but we are treated
like children, so it fits." (Military Academy cadet)
"The problem with the honor code itself is not the code--it is
the way the toleration clause is enforced. There is no leeway
for a cadet to confront another cadet about something--counsel
them and leave it at that. If a friend of mine makes a dumb
mistake--by regulation I have to turn him in. I can't talk to
him and solve the problem from there. Everything has to go to a
board. I think that's wrong and rather than admit I saw or
witnessed a violation by counseling the person myself, I'm not
going to run the risk of getting a toleration hit and I'm going
to pretend I never knew a thing." (Air Force Academy cadet)
--------------------
\2 Galloway, K. B. and Johnson, R.B. Jr., West Point: America's
Power Fraternity, New York: Simon and Schuster, 1973, pp. 109-110.
THE INDIVIDUAL'S INTENT IS
THE KEY DETERMINING FACTOR
-------------------------------------------------------- Chapter 3:2.2
The set of honor scenario items generated extensive write-in comments
from the respondents. Most of these comments indicated that the
scenarios did not provide enough information to make a definitive
assessment of the individual's intent and the respondents questioned
the validity of any conclusions based on the scenario questions.
Typical examples of the comments follow.
"From what we are taught, honor violations are determined upon
the intent of the possible violation. From the questions posed
in this questionnaire, we have no information or knowledge of
their intent. Its almost presuming guilty before being proven
innocent. Only some of the questions are like this. Others
gear us to the "right" answer by how they are worded." (Military
Academy cadet)
"There are lots of gray areas in several of these questions.
The biggest thing I look at before turning someone in is INTENT.
Not everything is black and white. Definitely there are actions
that are WRONG and should never be covered up but intent is the
biggest determinant." (Naval Academy midshipman)
"The answers I have given throughout the survey often depend on
situation, intensity, etc. I hope that is taken in to account
when these results are reviewed. Each question lacks the
specific context that may make the results more accurate or
reliable." (Air Force Academy cadet)
We agree that many of the scenario items did not include a specific
indication of the person's purpose or intent, but at least half of
the items did provide such an indication. We believe, however, that
the respondents' comments serve to confirm the conclusion that the
determination of what constitutes an honor violation is not
clear-cut. Rather, as noted in the previous chapter and stated in
many of the comments, determination of an honor offense depends upon
the inference that an observer forms regarding the individual's
intent. For example, while taking a bed sheet from the laundry to
make a "spirit" sign has the effect of a theft on the rightful owner
of the sheet, if the "intent" of taking the sheet was seen as a prank
then this act would probably not be seen as an honor violation.
Since different individuals can draw different inferences from the
same set of observed facts, determination of an honor offense is
highly subjective.
CONFUSION REGARDING WHETHER
AN ACT IS AN HONOR VIOLATION
OR MERELY A VIOLATION OF
REGULATIONS
-------------------------------------------------------- Chapter 3:2.3
A second common criticism that respondents cited in their write-in
comments about our scenarios was that we were apparently confused
regarding what constituted an honor violation versus what merely
constituted a violation of regulations. For example, several
respondents stated that covering room windows and stuffing a towel
under the door to avoid detection for violating lights-out policy is
a conduct offense. They saw this as an attempt to avoid detection,
not as an attempt to deceive authorities into believing that the
lights were out.
In reviewing the Naval Academy's serious conduct offenses for the
1990-91 school year, we found more cases involving theft that were
dealt with using the conduct system than with the honor system.
These cases included
stealing Logs (the Academy's humor magazine),
wrongfully appropriating a motor vehicle,
stealing by making unauthorized credit card phone calls,
stealing from the Midshipmen's Store,
stealing property of Citadel cadets,
stealing Navy property,
stealing $4.96 in merchandise,
assisting in transporting and concealing stolen stereo equipment,
stealing a check and cashing it, and
stealing money and credit cards from other midshipmen.
In addition, two cases of stealing were handled using court-martial
procedures. These cases involved stealing
a watch, a ring, and cash from the hotel room of a retired Army
general and his wife, and
$1,500 worth of stereo equipment from fellow midshipmen.
During that same period, we found six other cases that were dealt
with under the honor system. These cases involved stealing
a fellow midshipman's weapons project,
an exam,
a homework solutions manual,
money from a wallet,
a bracelet, and
21 library books from the Academy library.
We could find no explanation or criteria for determining whether a
given act would be pursued using the honor system, the administrative
conduct system, or the military justice system.
THE HONOR CODES/CONCEPT ARE
NOT ETHICS CODES
-------------------------------------------------------- Chapter 3:2.4
The honor codes/concept do not prohibit all unethical acts or
practices. Some of the respondents acknowledged this in pointing out
deficiencies in various scenario questions. For example, we asked
about the situation where an academy student used a paper from a
study file and, while not copying any of it verbatim, paraphrased it
completely. Several respondents wrote comments that whether this
would constitute an honor offense depended upon whether the
cadet/midshipman in question had cited the use of the study file
paper. For example, one Military Academy cadet wrote, "Some
underclass cadets might not know the difference between an ethics
violation and an honor violation. You must clarify if receiving help
or paraphrasing is documented or not."
Some respondents acknowledged that the hypothetical students in some
of the scenarios behaved inappropriately, but that did not constitute
an honor offense. Examples of comments made by Military Academy
cadets follow.
"Regarding the cadet paraphrasing the paper (for example), it
would only be an honor violation if he failed to document his
source. Otherwise, it is just unoriginal thought that deserves
a bad grade."
"Although this [keeping a $20 bill without trying to find who
lost it] is not morally correct, the cadet is not required to
return the money. However, I feel he/she should make a
reasonable attempt at finding the owner and returning said
money."
"Most of these [the honor scenarios] are ethical dilemmas, not
honor questions."
"Many things listed [in the honor scenarios] would be wrong,
possibly unethical, but not an `honor' violation."
COMPETING CONCEPTS REGARDING
WHAT CONSTITUTES HONOR
---------------------------------------------------------- Chapter 3:3
We asked respondents several questions aimed at identifying how they
personally defined honor and whether they saw any conflict between
the demands of the honor system and loyalty to friends (see fig.
3.7).
Figure 3.7: Student Views
Regarding Alternative Concepts
of Honor
(See figure in printed
edition.)
Source: Responses to GAO questionnaires.
Half or more of the students at each academy indicated that duty was
the highest form of honor. Also, a sizeable minority of students at
each academy indicated that loyalty was the highest form of honor,
that the honor system conflicts with the emphasis on being a team
player and personal loyalty by requiring students to turn in their
fellow students, and that personal loyalty should take preference
over rules and regulations.
Write-in comments also indicated that many students perceived a
conflict between the demands of the honor system and the obligations
of personal loyalty. For example,
"Because of the way I was brought up, it is hard to deal with
the Honor Code. I was taught that is was okay to cover up
things for friends and many things along those lines. I don't
think that is dishonesty." (Military Academy cadet)
"Loyalty to your friends is much more important than enforcing
military standards. If you are in a war, shined shoes won't
save your ass. Friends will." (Air Force Academy cadet)
"I think the main reason why the Honor Concept may not be
applied in some circumstances is that it conflicts with other
values learned at the Academy. Teamwork, and personal loyalty
are two such values. It is hard to put someone in jeopardy,
when one is taught not to 'bilge' [inform on], or backstab,
another midshipmen. It is especially hard for classmates to
punish one another, as one often views his/her class as one big
team or family." (Naval Academy midshipman)
"I would rather have a loyal friend by my side during combat
than one who has passed muster at the Naval Academy as being
honorable - we are here to lead men in combat and honor has
nothing to do with it." (Naval Academy midshipman)
"Many peoples' morals are eroded over time while they are here
and an unfortunate casualty includes their personal honor. This
erosion comes from wanting to be part of the group and putting
loyalty to them (team, company) over their personal integrity
and standing up for what's 'the right thing to do.' If they do
break with the group, they're ostracized. I know, I was one of
those." (Naval Academy midshipman)
MANY STUDENTS ARE RELUCTANT TO
REPORT HONOR VIOLATIONS
---------------------------------------------------------- Chapter 3:4
We asked students several questions aimed at assessing their
willingness to report honor violations. The proportion of students
indicating they would not turn in a close friend for a possible honor
violation was 37 percent at the Military Academy, 30 percent at the
Air Force Academy, and 29 percent at the Naval Academy (see fig.
3.8). The responses could mean that students are willing to report
honor violations only if they are sure that an honor offense has been
committed. However, since about one-quarter of the students at each
academy indicated they would not turn in a close friend for a
clear-cut honor violation, it would appear that many students are
simply unwilling to report their friends for honor violations.
Figure 3.8: Willingness to
Report a Friend for an Honor
Violation
(See figure in printed
edition.)
Source: Responses to GAO questionnaires.
To get another assessment of student willingness to report honor
violations, we examined the responses of those students at each
academy who thought each scenario either probably or definitely was
an honor violation. We also asked how likely it was that they would
report someone in their unit for a possible honor violation if they
had direct knowledge, after approaching for clarification, that the
individual had committed the act described in the scenario.
Midshipmen's responses do not necessarily mean that the respondent
would take no action since the Naval Academy honor system provides a
"counsel and not report" option for handling an honor offense.
However, since the honor codes at the Military and Air Force
academies provide no other option than to report honor offenses,
these results raise significant questions regarding student support
for the non-toleration clause at these academies.
As shown in figure 3.9, the proportion of students indicating they
would probably or definitely not report the individual varied
significantly from scenario to scenario, again indicating that many
students see different degrees of seriousness depending on the nature
of the specific offense. Overall, an average of 30 to 34 percent of
those students who saw various scenarios as either probably or
definitely constituting an honor offense indicated that they probably
or definitely would not report a student in their companies or
squadrons.
Figure 3.9: Percentage of
Students Who Indicated They
Would Definitely Not or
Probably Not Report Specific
Acts as Honor Violations
(See figure in printed
edition.)
(See figure in printed
edition.)
(See figure in printed
edition.)
Note: This figure only includes those students who indicated that a
specific act was probably or definitely an honor offense.
Source: Responses to GAO questionnaires.
Write-in comments indicated that reluctance to turn in peers for
honor offenses stems from a variety of reasons, such as loyalty to
one's friends, unwillingness to contribute to the destruction of
someone's life, belief that almost everyone has violated the code at
some point in their academy career, concern that minor violations can
result in disproportionate punishment, and the ostracism that can
result from turning in a peer. The following are examples of some of
the students' comments.
"I like to think that I'm honorable, but on the same token I
cannot envision myself turning in a friend for a violation. I
would definitely approach him and discuss it, but I probably
wouldn't turn him in." (Naval Academy midshipman)
"The hardest part about the honor code is that turning someone
in and ruining their life would be an extremely hard choice to
make." (Military Academy cadet)
"We all make good and bad decisions in life. However, to
destroy a career over some of the things that happen here
probably makes us suffer as a whole in the long run." (Naval
Academy midshipman)
"Pertaining to the honor questions, I would never turn in
somebody for honor violations because I would not want to be
responsible for ending somebody's career. I will always give
them a second chance." (Naval Academy midshipman)
"The honor concept really needs to be looked at. If you
interview midshipmen, most would tell you that it is strictly
adhered to, but it is not. I would seriously doubt anyone
graduates without committing some sort of H.O. [honor offense]
The H.C. [honor concept] is used as a scare tactic and to keep
others under control. Personally I hate it with a passion and
would never, ever take part in its proceedings no matter how
serious the offense was." (Naval Academy midshipman)
"The problems that many mids [midshipmen] face, including
myself, when deciding whether or not to report somebody has to
do with what exactly the offense was. I would generally try to
counsel first, and only as a last resort would I turn somebody
in. However, even then I would be hesitant to do so unless it
was a serious honor violation. There are many times when
technically something is an honor violation but it is almost
ridiculous to report." (Naval Academy midshipman)
"I was part of the people who turned in the EE [electrical
engineering] crew. All I got was hardship, pain, and hatred
from everyone in the hall. I tell you it was not worth it."
(Naval Academy midshipman)
FACTORS RELATED TO
RELUCTANCE TO REPORT HONOR
VIOLATIONS
-------------------------------------------------------- Chapter 3:4.1
We also looked at the responses to other questionnaire items to see
if those who indicated they would report a violation could be
distinguished from those who indicated they would not. Reluctance to
report was not related to class, gender, race, or ethnic background.
We found that students who were less willing to report violations
were more likely to do the following.
Draw distinctions among honor violations by degree of seriousness
(i.e., they tended to indicate that not all honor violations
were equally serious; that toleration of an honor offense was
less serious than lying, cheating, or stealing; and that not all
honor offenders should be expelled).
Indicate less trust in the fairness of the honor system (i.e., they
tended to indicate that the honor system was not administered
fairly and impartially, that honor punishments were not
appropriate to the offense, and that they did not fully trust
the honor investigators).
Perceive that the honor system was misused (i.e., they tended to
see the system used to enforce regulations and as an easy way to
remove someone from the academy), and
Place greater value on loyalty to peers (i.e, they tended to see
loyalty as the highest form of honor, indicate that loyalty to
friends should take precedence over rules and regulations, and
to see conflict between the honor system and the academy's
emphasis on being a team player and personal loyalty).
MANY STUDENTS PERCEIVED THAT
THE HONOR STANDARD IS HIGHER AT
THE ACADEMY THAN AMONG ACTIVE
DUTY OFFICERS
---------------------------------------------------------- Chapter 3:5
We asked respondents whether they agreed or disagreed with the
statement: "The concept of honor is much more stringent at the
Academy than it is among active duty officers." The percent of
students agreeing or strongly agreeing was 66 percent at the Air
Force Academy, 61 percent at the Military Academy, and 46 percent at
the Naval Academy. This could indicate either a cynical view of the
degree of honor on active duty or academy students see themselves as
being held to a higher standard. Some of the student comments on
this issue were quite strident. Examples such as the following
reveal considerable depth of feeling concerning a perceived
double-standard regarding honor at the academy and honor on active
duty.
"We use someone else's words and ideas and its called cheating.
The Supe [Academy Superintendent] uses someone else's words and
ideas and they call it a great speech. That's how it works in
the real world." (Naval Academy midshipman)
"We follow the Code out of fear while we are here. But most of
us will fall right into line with all the career protectionism
crap when we go on active duty." (Military Academy cadet)
"One need not look further than the Space Command's treatment of
the officers who dared to tell the truth about the programs the
Air Force wanted, to see that honor doesn't count for much in
the real Air Force." (Air Force Academy cadet)
"If we dissemble or quibble, we're gone. If a general does it
to a congressional committee to get some new weapon system, he
gets promoted. Just another case of `Do as I say, not as I
do'." (Air Force Academy cadet)
STUDENT PERCEPTIONS ABOUT
CHEATING
---------------------------------------------------------- Chapter 3:6
We asked respondents about their perception of the frequency of
academic cheating (see fig. 3.10). At the Military Academy, 11
percent disagreed with the characterization of cheating as "extremely
rare," as did 35 percent at the Naval Academy and 40 percent at the
Air Force Academy. Thus, according to the perceptions among cadets
and midshipmen, cheating may be more prevalent than the occasional
scandals make it appear.
Figure 3.10: Student Views
Regarding Frequency and Causes
of Cheating
(See figure in printed
edition.)
Source: Responses to GAO questionnaires.
As shown in the figure, about half or more of the students at each
academy saw the twin pressures of academics and inadequate time as
likely causes of cheating. However, since 54 to 70 percent of
cadets/midshipmen indicated they did not have sufficient time to
satisfy all the demands made on them and 44 percent to 65 percent
indicated they did not have sufficient time for their academic
studies, such pressures appear to be a fact of academy life.
OVER THEIR 4-YEAR ACADEMY
CAREERS, STUDENT VIEWS TOWARD
HONOR APPEAR TO BECOME LESS
POSITIVE
---------------------------------------------------------- Chapter 3:7
In its December 1993 report on honor at the Naval Academy, the Honor
Review Committee of the Naval Academy Board of Visitors stated that
midshipmen's attitudes toward honor appeared to become increasingly
cynical over their 4 years at the Academy. To see if this
observation also held at the other academies, we compared the
responses of the Class of 1994 to our surveys conducted in 1990-91
with that class' responses in 1994. Since both the 1990-91 and 1994
administrations involved random samples, we believe each provides a
reliable assessment of the prevailing attitudes among the members of
that class at those two points in time, even though the same
individuals were not necessarily included in both samples.
The data support the observation that attitudes of first class
(senior) students at each academy appeared less positive toward the
honor system than they were as fourth class (freshmen) students. In
particular, members of the Class of 1994 became
less likely to indicate that honor was well respected,
less willing to report a close friend for either a possible or a
clear-cut honor violation, and
more likely to see honor as more stringent at the academy than
among active duty officers.
There was also a tendency for students in the Class of 1994 to see
fewer of the honor scenarios as violations in their last year at the
academy than they did in their first year. However, according to
academy officials, this result could represent the first class
(seniors) having gained a more thorough knowledge of the intricacies
of the honor system and the elements of proof needed to determine
that a violation has occurred, which can result from living under the
system for 4 years.
In light of these findings, it is interesting that some elements of
the academy honor education programs appear to take hold over the 4
years. Senior students were less likely than they were as freshmen
to indicate that
loyalty was the highest form of honor,
loyalty should take precedence over rules and regulations, and
the honor system conflicts with the academy's emphasis on teamwork
and personal loyalty,
In some ways, Class of 1994 students at the Military and Air Force
academies also appeared to become more "hard-line" regarding honor
over their 4 years. For example, the percentage indicating that
honor offenders should be expelled and the percentage indicating that
there was no such thing as a minor honor violation increased from
when they were freshmen.
COMPARISON OF ACADEMY CONDUCT
SYSTEMS
============================================================ Chapter 4
Codes of conduct at all three academies define acceptable cadet
behavior as adherence to civilian laws, UCMJ, and service and academy
directives and standards. Students who violate the academies'
conduct standards may be subject to an administrative disciplinary
hearing, where determinations of fact are made concerning the alleged
misconduct.
The academies characterize their disciplinary systems as correctional
and educational rather than legalistic or punitive. Their goals are
to instill in the cadets and midshipmen the desire to accept full
responsibility for their actions and to place loyalty to the service
above self-interest or friends and associates. The conduct system at
each academy consists of two types of reviews: reviews of specific
violations and reviews of overall records for cadets/midshipmen who
are deficient in conduct.
CONDUCT SYSTEMS AND
ADJUDICATORY PROCESSES
---------------------------------------------------------- Chapter 4:1
Each conduct system and related adjudicatory processes are based
essentially on similar principles of conduct and character
development. However, the systems and processes vary considerably
across the three academies.
MILITARY ACADEMY
-------------------------------------------------------- Chapter 4:1.1
There are five levels of conduct adjudication at the Military
Academy. These are, in increasing order of severity, award of
demerits, company boards, regimental boards, hearings involving
violations of Academy regulations, and court-martial hearings
involving violations of UCMJ.\1
Demerits are awarded for minor infractions of cadet regulations, for
example, not shining shoes properly. Cadets are allowed a certain
number of demerits per month, depending upon their class. Once this
number is exceeded, cadets must serve one punishment tour\2 per
demerit in excess of the monthly allowance. Company boards may award
punishments of up to 20 demerits and 20 punishment tours for
infractions such as being late for class through neglect. A company
board is not considered to be a major disciplinary proceeding.
A regimental board, convened for such offenses as leaving post
without authority, is considered to be a major disciplinary
proceeding. A regimental board may award punishments of up to 35
demerits, 100 punishment tours, and 4 months' restriction to specific
areas (typically a cadet's own room, the nearest latrine, and the
orderly room). If a cadet gets three regimental boards during
his/her cadet career, an investigating officer is appointed to review
the board proceedings and recommend action to the Superintendent. A
hearing for suspected violations of Academy regulations is the most
serious level of administrative adjudication and may result in a
cadet being separated. Court-martial is reserved for serious
offenses that are considered clearly criminal, such as sexual
assault, fraud, and so forth.
--------------------
\1 Cadets at the Military Academy are part of the Army and are
subject to military law. However, by Army regulation (paragraph
3-3a, AR 27-10), article 15, nonjudicial punishment, may not be
imposed on cadets.
\2 A tour is a period, about an hour, during which the individual is
assigned to perform a specific duty at a particular place.
NAVAL ACADEMY
-------------------------------------------------------- Chapter 4:1.2
At the Naval Academy, conduct offenses are categorized into six
levels of seriousness, 1000 through 6000. Levels 1000 through 3000
cover infractions, such as failure to have door open when a room is
occupied, unauthorized use of an official telephone, and unauthorized
absence of 30 minutes or less. Punishments for these levels are
awarded by commissioned officers at the company level. The remaining
levels, 4000 through 6000, involve more serious infractions, such as
intentional failure to perform a duty, sexual misconduct, and hazing.
Punishments for offenses at these levels are determined at the
battalion level or higher.
Each midshipman is allowed a certain number of cumulative demerits
per year or over his/her career, depending upon class. Based on
these demerit levels, midshipmen are given a letter grade for their
conduct. The three levels of conduct standing are proficient,
deficient (exceeding two-thirds of the annual allowable demerit
total), and unsatisfactory (exceeding the annual or cumulative
demerit allowance). Low conduct grades can result in a hearing to
determine if the midshipman should be allowed to continue at the
Academy.
AIR FORCE ACADEMY
-------------------------------------------------------- Chapter 4:1.3
At the Air Force Academy, conduct violations are categorized into
four levels of seriousness: A, B, C, and D. For class A conduct
offenses, such as a minor uniform appearance violation, the awarding
authority for punishment lies within the cadet chain-of-command.
Class B offenses, such as being absent from class, and class C
offenses, such as being outside cadet limits without permission, are
adjudicated by a cadet's Air Officer Commanding and the group Air
Officer Commanding, respectively.
Class D offenses, such as drug or alcohol abuse, sexual misconduct,
and hazing, are the most serious level of misconduct and may
constitute grounds for involuntary dismissal. For violations of
UCMJ, the Commandant of Cadets can initiate article 15 or
court-martial actions. But most class D cases were normally
adjudicated by a Cadet Disciplinary Board. Recommendations for
involuntary separation were reviewed by the Military Review
Committee, a standing committee of the Academy Board.
In September 1994, the Air Force Academy proposed to the Secretary of
the Air Force that the Cadet Disciplinary Board be replaced with a
streamlined Military Review Committee hearing. The objective of the
proposal was to streamline, ensure due process, and align Academy
disenrollment procedures for discipline and aptitude more closely
with Air Force discharge procedures. The Secretary approved the
proposal as of January 1, 1995.
MISCONDUCT STATISTICS
---------------------------------------------------------- Chapter 4:2
The number of conduct hearings held varied greatly from academy to
academy. Because of differences in the ways each academy categorizes
and handles conduct offenses, the rates of misconduct hearings and
the dispositions of those cases are not comparable.
For academic years 1991 through 1994, the Military Academy had 30
cases in which cadets had been accused of serious cases of misconduct
and were investigated under the provisions of Regulations, USMA.
About 17 percent of the cases were dropped before hearings. Of the
25 cadets that had formal hearings, 15 (60 percent) were found
guilty. Ten (67 percent of those found guilty) were separated.
The Naval Academy had 147 serious (potential separation level)
misconduct cases during academic years 1991-92 and 1992-93 and the
first semester of 1993-94. Of those cases, 32 (about 22 percent)
were dropped before a hearing. Of the 115 midshipmen that had
hearings where final dispositions have been made, 84 (about 73
percent) were found guilty. Thirty-two midshipmen (about 38 percent
of those found guilty) were separated.
The Air Force Academy had 139 serious (class D and UCMJ) misconduct
cases during academic years 1991-94. Of those cases, 8 (about 6
percent) were dropped before a hearing and 7 were still pending a
decision at the time of our review. Of the 124 cadets that had
hearings where the final dispositions were known, 99 (about 80
percent) were convicted. Twenty-five cadets (about 25 percent of
those found guilty) were separated.
COMPARISON OF DUE PROCESS
PROTECTIONS IN ACADEMY CONDUCT
ADJUDICATION SYSTEMS
---------------------------------------------------------- Chapter 4:3
The due process protections available to cadets and midshipmen who
are charged with serious conduct offenses vary across the academies
and are somewhat different from those provided in honor cases (see
table 4.1). However, many of the due process concerns raised by
defense attorneys with regard to honor hearings are seen by those
attorneys as also applicable to administrative conduct hearings (see
ch. 2).
Table 4.1
Due Process Elements in the Academy
Conduct Systems
Military Air Force
Element Academy Naval Academy Academy\a
--------------- ------------- ------------- -------------
Right to Yes, 7 days' Yes, 5 days' Yes, 3 days'
adequate notice minimum minimum minimum
notice. notice. notice.
Right to an Open to DOD Not open to Cadet and
open hearing personnel, family or officer chain
cadets, and nonacademy of command
family. Other friends. are allowed
persons may to sit in.
be admitted Observers may
at the be permitted
discretion of by Board
the President.
Superintenden
t.
Right to an Yes. Yes. There is no
impartial provision for
tribunal the accused
to challenge
a Board
member for
bias.
Right to No. The Yes, but No. The
present accused may exercising accused may
argument only make this right make an
unsworn opens the opening
opening and accused to statement,
closing being clarify or
statements. questioned. correct any
written
statements,
and make a
closing
statement.
Right to Yes. Yes, but Partial. The
present and exercising Board
cross-examine this right conducts all
witnesses opens the questioning.
accused to
being
questioned.
Right to know Yes. Yes. Yes.
opposing
evidence
Right to Limited. Limited. Limited.
representation Attorney Attorney Attorney
by counsel cannot cannot cannot
represent at represent at represent at
hearing. hearing. hearing.
Right to have Yes. Yes. Partial. The
decisions based Board may
solely on the consider
evidence recommendatio
presented n statements
that may not
have been
discussed in
the hearing.
Right to a No. A Partial. Partial. A
complete record summarized While a summarized
of the transcript is transcript transcript
proceedings, provided and and an audio and minutes
including the it does not tape are of the
rationale for ordinarily provided, the proceedings
the verdict address the rationale for is provided,
rationale for the decision but it does
the verdict. is provided not address
by the the rationale
Commandant. for the
verdict.
Right to an No, the Staff No, but No. However,
independent Judge accused may the accused
appellate Advocate make a may request
review reviews the Request for an AFR 53-3
case file for Reconsiderati Hearing
legal on. The Officer
sufficiency. Superintenden review. The
t reviews the Academy Board
case file. reviews the
case file if
separation is
recommended.
Right to remain Yes, during a Yes, as soon Not unless a
silent misconduct as it's known UCMJ
investigation that the case violation is
and hearing. involves a involved.
6000-level
offense.
Right to have No. No. No.
involuntary
confessions
excluded
------------------------------------------------------------
\a Our analysis was based on review of the Cadet Disciplinary Board
process.
RIGHT TO ADEQUATE NOTICE
-------------------------------------------------------- Chapter 4:3.1
The minimum amount of notice required to be provided to a student
charged with a serious conduct offense varies from 3 days at the Air
Force Academy to 7 days at the Military Academy. Air Force Academy
officials told us that while, there was no specific minimum notice
for serious misconduct offenses, every effort was made to close the
Air Force Cadet Wing Form 10 (the form used to report conduct
offenses) as soon as possible. Academy officials also said that they
notified an accused orally, and not in writing, and an accused could
not get additional time to prepare for a hearing because the accused
was fully aware of the charges pending against him/her.
At the Naval Academy, we were told that while an accused has a
minimum of 5 days to prepare for an investigative hearing, as a
practical matter an accused tends to have more notice for more
serious offenses. Generally, the Conduct Office has 11 working days
to generate a formal charge;
18 days for an investigative hearing; 23 days for a Commandant's
hearing; and 25 days (5 weeks) for a Commandant's memorandum.
RIGHT TO AN OPEN HEARING
-------------------------------------------------------- Chapter 4:3.2
The Military Academy limits attendance to DOD personnel, cadets, and
family. Other persons may be admitted to observe a proceeding, at
the discretion of the Superintendent, if their attendance would not
have an adverse effect on the fairness and dignity of the proceeding
or the respondent's right of privacy.
The Naval and Air Force academies also close their administrative
conduct hearings to the public at large. The Air Force Academy
permitted observers (usually the future board membership pool) to
attend all or part of the hearing at the discretion of the board
president and the cadet chain of command was allowed to sit in during
testimony. The Naval Academy does not allow the accused's family or
friends to attend the hearing.
RIGHT TO AN IMPARTIAL
TRIBUNAL
-------------------------------------------------------- Chapter 4:3.3
One major difference among the academies is the nature of the
misconduct tribunal. At the Naval Academy, a single investigating
officer collects the evidence, holds the hearing, and makes
recommended findings. The Military Academy's regimental board
consists of the Regimental Tactical Officer. As mentioned
previously, the Air Force Academy had a Cadet Disciplinary Board,
which consisted of four officers and three cadets. As of January 1,
1995, the Air Force Academy replaced that board with a two-step
process. When a cadet is suspected of serious misconduct, an inquiry
may be conducted by the Security Police, Commander, or by an
appointed inquiry officer. At the conclusion of the inquiry, the
Commander may opt for cadet punishment or may recommend
disenrollment. If disenrollment is recommended, the case will be
forwarded to the Military Review Committee for fact-finding and a
recommendation of disposition.
At both the Military and Naval academies, a cadet/midshipman can
challenge the investigative officer for lack of impartiality or
failure to qualify as an investigative officer. This challenge will
normally occur before the fact-finding portion of the investigation,
but may be done during any portion of the investigation when the
respondent discovers possible grounds for challenge.
At the Air Force Academy, the board president and board members had
certain procedures to follow regarding the circumstances under which
a member would be considered not to be impartial. The accused could
not directly challenge board members for bias, although the accused
could present facts demonstrating that a board member was biased.
The board president made the determination as to whether a board
member would be excused for bias.
THE RIGHT TO PRESENT
ARGUMENT
-------------------------------------------------------- Chapter 4:3.4
At the Military Academy, an accused may make an unsworn opening
statement before the fact-finding portion of the investigation
begins. At the conclusion of the hearing, an accused can make an
unsworn argument to the investigating officer on the merits of the
allegation and about possible recommendations by the investigative
officer.
The Naval Academy allows accused midshipmen the right to present
their own argument. The accused may receive assistance from his/her
attorney on overall presentation strategy.
An accused at the Air Force Academy did not present argument to the
board members. However, an accused had the right to make an opening
statement at the hearing. After the opening statement, witnesses
were brought in and questioned by the board about their written
testimony. An accused could make a closing statement to clarify any
testimony or answers to questioning.
RIGHT TO PRESENT AND
CROSS-EXAMINE WITNESSES
-------------------------------------------------------- Chapter 4:3.5
At both the Military and Naval academies, an accused cadet/midshipman
may call witnesses, present evidence in his/her own behalf, and
cross-examine all witnesses. However, at the Naval Academy, if an
accused questions witnesses, the accused may be questioned. Also, an
accused midshipman needs permission for character witnesses to
testify on his/her behalf.
During a Cadet Disciplinary Board hearing at the Air Force Academy,
only the board members could cross-examine witnesses. An accused
cadet could not question opposing witnesses directly, but could
submit evidence, names of prospective witnesses, and questions to the
board president. The board president had the discretion to call
witnesses to testify.
RIGHT TO KNOW OPPOSING
EVIDENCE
-------------------------------------------------------- Chapter 4:3.6
At all three academies, an accused is entitled to a copy of all
documents and witness statements in the case file. An accused is
also given the names and addresses of all witnesses expected to
testify at the hearing.
RIGHT TO REPRESENTATION BY
COUNSEL
-------------------------------------------------------- Chapter 4:3.7
Each academy informs students accused of serious conduct offenses,
when dismissal is a possibility, that they have a right to legal
counsel. For purposes of consultation, an accused may obtain
civilian counsel at his/her own expense, consult with military
counsel provided free of charge by the academy, or do both. The
right to counsel, however, is limited to advice given outside of the
hearing. An accused's counsel may be present as a spectator only at
the Military Academy.
RIGHT TO HAVE THE DECISION
BASED SOLELY ON THE EVIDENCE
PRESENTED
-------------------------------------------------------- Chapter 4:3.8
The conduct hearings at each academy are supposed to consider only
that information that is presented at the hearings. Since these
hearings are considered administrative, not judicial, there are no
formal rules of evidence and any information that is considered
reasonably relevant to the issues in question will typically be
allowed.
RIGHT TO HAVE A COMPLETE
RECORD OF THE PROCEEDINGS
-------------------------------------------------------- Chapter 4:3.9
None of the academies provides a convicted cadet/midshipman with an
explanation of the rationale for their decision and sanctions. A
convicted cadet at the Military Academy receives a summarized record
of the proceedings and findings, which is authenticated and certified
by the investigating officer, a copy of the Staff Judge Advocate's
legal review, and the Commandant's recommendation.
At the Naval Academy, a convicted midshipman receives a copy of the
investigative hearing report and, upon request, a copy of the audio
tape of the hearing. However, the accused does not get a copy of the
Staff Judge Advocate's recommendations that is forwarded to the
Superintendent.
At the Air Force Academy, a verbatim transcript was not made of the
proceeding. Convicted cadets were given a summary of the hearing and
minutes of the case. A cadet did not receive a copy of the
recommendation of his/her Air Officer Commanding.
RIGHT TO AN INDEPENDENT
APPELLATE REVIEW
------------------------------------------------------- Chapter 4:3.10
There is no process for a formal, independent appeal of
administrative conduct decisions at the Military and Air Force
academies. At the Naval Academy, however, a convicted midshipman may
request reconsideration of either a finding of guilt or the award of
a particular punishment.
Each academy does, however, conduct a legal review through its staff
judge advocate. At the Military Academy, the Staff Judge Advocate
reviews the record of proceedings to determine whether (1) legal
requirements have been complied with, (2) any errors that may have
been made had a material effect, (3) the findings of the
investigating officer are supported by the requisite proof, and (4)
the recommendations are supported by the findings. The Staff Judge
Advocate may also make recommendations concerning disposition of the
case. At the Naval Academy, the legal review is conducted by the
Superintendent's Staff Judge Advocate, after the case has been
reviewed by the Commandant. At the Air Force Academy, the Staff
Judge Advocate reviewed the case to determine that legal requirements
had been met after the Commandant has reviewed the case. A convicted
Air Force Academy cadet who had been recommended for separation could
elect to have a review by a hearing officer in accordance with Air
Force Regulation 53-3 or the Commandant could refer the case to a
hearing officer or board of officers. The Academy Board reviewed all
cases when cadets were recommended for separation and voted to retain
or disenroll the cadet. Cadets who were being considered for
disenrollment could submit a written statement with supporting
documents to the Academy Board.
RIGHT TO REMAIN SILENT
------------------------------------------------------- Chapter 4:3.11
At the Military Academy, a cadet may be required to state orally what
he or she knows about an incident, subject to his or her rights
against self-incrimination. A cadet whose conduct is subject to
investigation and cadets who are witnesses may decline to answer
questions if their statements would tend to incriminate them. For
this purpose, self-incrimination involves a situation in which a
cadet could be required to admit to a criminal offense. An article
31 rights warning (the right to remain silent) is required in the
case of a suspected criminal offense. A cadet is not afforded the
right to remain silent merely because he or she is suspected of
committing a delinquency under some conduct regulation.
As soon as Naval Academy officials know they are dealing with a
6000-level offense, they inform the accused that he/she has the right
to remain silent. An accused midshipmen has the right to remain
silent at the investigative hearing without any adverse inference
being drawn from exercising that right. If, however, the accused
makes a statement at the hearing concerning a particular offense, he
or she is expected to answer any questions the investigating officer
may have concerning that offense.
At the Air Force Academy, an accused cadet does not have the right to
remain silent when confronted by a superior. When an officer or
cadet in the chain of command requests a statement from a cadet, the
cadet must provide a statement revealing all information about the
incident, including names of cadets or other persons involved, unless
the conduct violation(s) in question is to be punished under UCMJ.
If during questioning or the investigation of an incident, a cadet
reveals information indicating a possible UCMJ violation, all
questioning is to be stopped immediately and the cadet is to be
informed of his/her legal rights under UCMJ Article 31 (the right to
remain silent). Academy officials also stated that a cadet can
terminate any interrogation and request legal counsel at any time.
RIGHT TO HAVE INVOLUNTARY
CONFESSIONS EXCLUDED
------------------------------------------------------- Chapter 4:3.12
At all three academies, incriminating statements are considered
valid, even if the individual was denied or not advised of the right
to remain silent, since conduct hearings are considered
administrative proceedings and rules of evidence do not apply.
Failure to grant the accused the right to remain silent will not
necessarily result in any confession being excluded as evidence.
SOME ELEMENTS OF ADMINISTRATIVE
ADJUDICATORY SYSTEMS ARE
INCONSISTENT WITH DOD OR
SERVICE POLICY REGARDING
NONJUDICIAL DISCIPLINARY
PROCEEDINGS
---------------------------------------------------------- Chapter 4:4
As noted earlier, the academies consider their honor and conduct
systems to be administrative systems. As such, they are essentially
similar to nonjudicial disciplinary proceedings for military
personnel authorized under UCMJ Article 15. Military law provides
for nonjudicial punishment as a means of imposing prompt punishment
for minor violations and to correct, educate, and reform offenders in
an efficient manner without subjecting them to the stigma that a
court-martial would entail. A nonjudicial disciplinary proceeding is
not a trial, and a determination of guilt does not constitute a court
conviction.
Despite the similarities between the objectives of the academy
administrative adjudicatory systems and DOD-wide and service
objectives regarding nonjudicial disciplinary proceedings, there are
several key inconsistencies between the rights given service
personnel and the rights accorded academy students under the
administrative conduct and honor systems. The inconsistencies, with
academy students having less protection, involve the right to be
represented by counsel; the right to remain silent; the right to an
independent appeal; the maximum length of the punishment of
"restriction;" and, in the case of the Military and Air Force
academies, the standard of proof used to determine guilt.
One major difference between the academy administrative adjudicatory
systems and DOD nonjudicial punishment policy involves the right to
have counsel appear with the accused and present the case for the
accused. The Manual for Courts-Martial states that before
nonjudicial punishment may be imposed, the accused servicemember is
entitled to appear personally before the administrative authority
imposing the nonjudicial punishment. If the accused requests such a
personal appearance, he/she is entitled to be accompanied by a
spokesperson, who may be a lawyer. This spokesperson may speak for
the accused, but may not necessarily question witnesses except as the
nonjudicial punishment authority may allow as a matter of discretion.
The presence of a lawyer as the personal representative does not make
a nonjudicial hearing a formal adversary proceeding; it only gives
the accused someone to advise and to speak up for him/her. At the
academies, the accused is not entitled to be represented by a
spokesperson or lawyer at any administrative conduct or honor
hearing.
A second difference concerns the right to remain silent. Rule 301 of
the Manual for Courts-Martial makes UCMJ, Article 31 (the right to
avoid self-incrimination) expressly applicable to nonjudicial
punishment. Under the academy administrative conduct systems,
students must answer a question that incriminates them, except when
they are being charged under UCMJ.
A third difference involves the right to an independent appeal.
Under article 15, a servicemember who considers the punishment to be
unjust or disproportionate to the offense may appeal to the next
superior authority. When punishment has been imposed under
delegation of a commander's authority to administer nonjudicial
punishment, the appeal must be directed to someone other than the
commander who delegated the authority. Since the administrative
adjudicatory systems are a delegation of authority from the
Superintendent, under the academy adjudicatory systems, only a
decision to separate a student with the required review by the
service secretary would appear to meet this definition of appeal.
A fourth difference involves maximum punishments. UCMJ imposes
limitations on article 15 punishments. One of those limitations
involves the punishment of "restriction." The maximum restriction
allowed by UCMJ for nonjudicial punishment is 60 days, and then only
if the punishment is imposed by an officer with general court-martial
jurisdiction or a flag rank officer. At each academy, we found that
restriction periods of longer than 60 days have been imposed on
students under the administrative conduct systems.
The last difference involves standard of proof. For Naval Academy
midshipmen, the standard of proof for administrative conduct hearings
is the same at the Academy as it is for nonjudicial punishment in the
fleet, "preponderance of the evidence." However, the standard of
proof used in Military and Air Force Academy administrative conduct
hearings (preponderance of the evidence) is lower than that used for
nonjudicial punishment in the active Army and Air Force. The Army
has been using the "beyond a reasonable doubt" standard for its
nonjudicial punishment cases since 1973. Similarly, Air Force
Instruction 51-202, paragraph 3.3, states that the commander must
consider whether proof "beyond a reasonable doubt" would be
obtainable before initiating action under article 15; if not, it
states that action under article 15 is generally not warranted.
In its official comments, DOD stated that it saw no clear basis for
concluding that protections provided under the administrative conduct
systems must parallel nonjudicial disciplinary proceedings. DOD
stated that a nonjudicial disciplinary proceeding is a quasi-judicial
process established under the UCMJ and the rights that accrue to an
offender under the UCMJ are quite specific. Disposition under the
academy administrative honor and disciplinary systems, according to
DOD are not subject to the same criteria. However, a defense
attorney stated that he questions whether the academies have the
authority to substitute an administrative disciplinary system that
provides less protection for offenders in lieu of legislatively
mandated disciplinary system that has the same objectives.
CADET/MIDSHIPMAN PERCEPTIONS AND
ATTITUDES CONCERNING THE CONDUCT
SYSTEM
============================================================ Chapter 5
We asked questions on our survey pertaining to the conduct rules and
disciplinary systems at the academies. Most academy students saw
many of the rules and regulations imposed on them as trivial and
unrealistic and they believed that the academies should allow
students more freedom. A majority of students at the academies
perceived that the handling of conduct offenses, the application of
rules and regulations, and the disciplinary actions imposed were not
consistent. Students appear split regarding whether strict
enforcement and punishment are appropriate. Finally, the perceptions
of the Class of 1994 Air Force Academy cadets changed very little
from their freshman year while those in that class at the Naval and
Military academies tended to become increasingly of the opinion that
the rules were unreasonable and that discipline was administered
inconsistently.
MANY RULES AND REGULATIONS SEEN
AS UNREASONABLE
---------------------------------------------------------- Chapter 5:1
The students overwhelmingly indicated that the academies have
overregulated them. Most of the students at each academy indicated
that (1) many of the academy's student regulations were trivial and
unrealistically restrictive, (2) the academies should allow them more
freedom, and (3) their peers did not view the conduct rules and
regulations as reasonable. (See fig. 5.1.)
Figure 5.1: Student
Perceptions Regarding the
Reasonableness of Rules and
Regulations
(See figure in printed
edition.)
Source: Responses to GAO questionnaires.
The following write-in comments also addressed this overregulation
issue.
"The problem with the Naval Academy and our sister service
academies is that MIDN [midshipmen] aren't given enough
responsibility. The feeling here is that we are treated like
children for too long. . . We have more restrictions on us
than most enlisted folks." (Naval Academy midshipman)
"Too many stupid, useless, and inane regulations. Many of them
serve no purpose. Many cause unneeded restrictions on
lifestyles." (Military Academy cadet)
"Get rid of all the stupid rules . . . Give cadets more
responsibility and authority . . . We might actually surprise
you with our performance." (Air Force Academy cadet)
Some comments indicated that the rules were delaying or getting in
the way of students being able to mature.
"Mids [midshipmen] need more freedom from the restrictive rules
and regulations so they can make mistakes and learn from them
before entering active duty." (Naval Academy midshipman)
"My biggest question since I started here . . . How do
midshipmen learn if everything is scheduled and done for them?
They are not learning the basics of time management and how to
handle their money." (Naval Academy midshipmen)
There may also be some connection between the degree of regulation
and the widespread unwillingness to report honor violations. As one
midshipman wrote, "I think many of the restrictive [regulations] and
the overloaded schedule breed contempt for the system including,
unfortunately, the Honor System."
This concern was also expressed by Ellis and Moore in their book on
West Point published 20 years ago. As they stated, cadets
"become increasingly irritated at the accretion of petty,
'Mickey Mouse' regulations that, from their perspective, served
no useful purpose. The result was not only an increase in the
violation of regulations but also creation of an atmosphere in
which cadets who violated regulations frequently felt that they
were doing nothing wrong. The absence of guilt and the parallel
conviction that punishment was undeserved combined to sanction
violations of the Honor Code (particularly lying) as a means to
avoid getting caught."\1
--------------------
\1 Ellis, J. and Moore, R., School for Soldiers, New York: Oxford
University Press, 1974, p. 187.
ADMINISTRATION OF DISCIPLINE
SEEN AS INCONSISTENT
---------------------------------------------------------- Chapter 5:2
Three-quarters or more of the students at each academy indicated that
conduct offenses were handled differently across the academy. In
addition, they perceived the regulations as not being uniformly
applied and that students committing the same offense received
different disciplinary actions. (See fig. 5.2.)
Figure 5.2: Student
Perceptions Regarding
Consistency in the
Administration of Discipline
(See figure in printed
edition.)
Source: Responses to GAO questionnaires.
STUDENT VIEWS ON ENFORCEMENT
WERE MIXED
---------------------------------------------------------- Chapter 5:3
While about one-third or more of the students believed that strict
enforcement was important, about one-third or more disagreed.
Similarly, there was little agreement regarding whether disciplinary
actions were appropriate to the offense, although from the wording of
the question we were unable to determine whether those who believed
the punishments were inappropriate saw them as being too harsh or too
lenient. There was also considerable disagreement on whether
serious\2 conduct offenders should be expelled. (See fig. 5.3.)
Figure 5.3: Student Views on
Punishment and the Enforcement
of Rules and Regulations
(See figure in printed
edition.)
Source: Responses to GAO questionnaires.
--------------------
\2 For the reference of the respondent, a serious conduct offense was
defined in the questionnaire as a "6000-level" offense at the Naval
Academy, a "serious Regulations- USMA or court-martial" offense at
the Military Academy, and a "Class III (50/80/4), Article 15, or
court-martial" offense at the Air Force Academy.
CHANGES IN PERCEPTIONS FROM
FRESHMAN YEAR TO SENIOR YEAR
---------------------------------------------------------- Chapter 5:4
At the Military and Naval academies, perceptions of the Class of 1994
regarding the conduct systems tended to change from their freshman
year to their senior year, while there was little apparent change in
perceptions at the Air Force Academy. The responses of the Class of
1994 in their senior year at both the Military and Naval academies
showed an increase in the proportion of students who viewed
themselves as being overregulated with unreasonable rules and
regulations and an increase in the proportion who perceived
inconsistent and inappropriate disciplinary actions. At the Naval
Academy, there was also an increase in the proportion who saw
inconsistent handling of conduct offenses and lack of uniformity in
the application of rules and regulations.
(See figure in printed edition.)Appendix I
COMMENTS FROM THE DEPARTMENT OF
DEFENSE
============================================================ Chapter 5
DESCRIPTION OF QUESTIONNAIRE
METHODOLOGY
========================================================== Appendix II
The purpose of this appendix is to set forth our questionnaire
development process, our sampling approach, the response rates, the
weighting of the data, the processing of completed questionnaires,
the sampling error, and other methodological issues. This report is
part of a broader review of the Department of Defense service
academies, which focused on various aspects of student treatment at
the academies, including the treatment of women and minorities, the
treatment of fourth class cadets and midshipmen, and sexual
harassment, in addition to the operation of academy honor and conduct
adjudicatory systems.
QUESTIONNAIRE DEVELOPMENT
-------------------------------------------------------- Appendix II:1
We originally developed an omnibus questionnaire in 1990-91 to
address the full scope of the broader review.\1 The 1994 version of
the questionnaire was shortened by omitting most of the items that
did not pertain to the honor and conduct systems or the issue of
sexual harassment. The wording of the 1994 items was identical to
the wording in the 1990-91 version.
--------------------
\1 A more detailed description of the questionnaire development
process and the 1990-91 survey administration can be found in DOD
Service Academies: More Actions Needed to Eliminate Sexual
Harassment (GAO/NSIAD-94-6, Jan. 31, 1994).
SAMPLING METHODOLOGY
-------------------------------------------------------- Appendix II:2
To ensure that an adequate number of women and minorities would be
included, we used a stratified random sample design allowing us to
oversample those two groups. We used the last digit of the social
security number to randomly select respondents from each strata.\2
--------------------
\2 The last four digits of social security numbers are essentially a
random field based on the order in which individual social security
offices process the applications they receive. Selecting one final
digit could be expected to yield a sample of about 10 percent.
QUESTIONNAIRE RESPONSE RATES
AND WEIGHTING OF DATA
-------------------------------------------------------- Appendix II:3
The questionnaires were mass-administered to the academy students.
Those selected for the sample were notified through academy channels
to report to rooms designated for the questionnaire administration.
The questionnaires were administered by our staff during what would
otherwise have been free time for the respondents. Respondents were
assured of anonymity. There was a make-up session for Air Force
Academy cadets and Naval Academy midshipmen who had scheduling
conflicts. Our survey administration time at the Military Academy
conflicted with a scheduled academic placement examination for a
portion of the Class of 1995. To ensure that this would not have an
impact on the representativeness of our sample, those cadets
scheduled for the placement examination were subtracted from the
population before the random sample selection was made.
Completed questionnaires were received from 430 Military Academy
cadets (a response rate of about 92 percent), 470 Naval Academy
midshipmen (a response rate of about 90 percent), and 428 Air Force
Academy cadets (a response rate of about 77 percent).
Since we oversampled on the female and minority subgroups, we needed
to apply weights to the responses to allow them to represent the
total academy population. Raw weights were computed by dividing the
number of subgroup responses into the subgroup population. However,
applying raw weights would artificially increase the number of cases
and inflate tests of statistical significance. To avoid such
inflation, we used the raw weights to compute constrained weights,
which when applied to the data made the number of weighted cases
equal the number of unweighted cases.\3 Weights applied in this
manner yield data that represented the total population without
distorting significance tests.
--------------------
\3 SPSS-X User's Guide, 3rd edition, Chicago, IL: SPSS, Inc., 1988.
PROCESSING COMPLETED
QUESTIONNAIRES
-------------------------------------------------------- Appendix II:4
We reviewed and edited each returned questionnaire. Responses were
double-keyed, creating two files for each completed questionnaire.
The two files were then compared for consistency and corrections were
made as necessary. We checked the overall accuracy of the keyed data
by verifying every 10th record back to the responses in the completed
questionnaire. None of the three sets of questionnaires reached an
error level of 1 percent.
SAMPLING ERROR
-------------------------------------------------------- Appendix II:5
Since we surveyed samples of cadets, midshipmen, and faculty rather
than the entire populations, our results were subject to some degree
of uncertainty, or sampling error. Sampling errors represent the
expected difference between our sample results and the results we
would have obtained had we surveyed the entire populations. Sampling
errors are smallest when the percentage split responding to a
particular question is highly skewed, such as 5 percent responding
"yes" and 95 percent responding "no" and greatest when there is about
a 50-50 percentage split in responses.
On the basis of our response rates, we estimate that our results can
be generalized to the cadet and midshipman populations at the
95-percent confidence level, with a maximum sampling error of plus or
minus 4.6 percent at the Military Academy, 4.4 percent at the Naval
Academy, and 4.6 percent at the Air Force Academy.
The sampling errors for various subgroups for which data are cited
are shown in table II.1. The decimal figures in the table are the
sampling errors that correspond to various percentages of respondents
selecting a particular response alternative. For example, if we
state that 15 percent of Military Academy cadets responded in a given
way, the table shows a sampling error of 3.3 percent corresponding to
"all cadets" and a 15-85 percent response split. This means that we
can be 95 percent confident that the percentage of cadets responding
that way in the population would be within 15 percent plus or minus
3.3 percent, or between 12.7 and 18.3 percent.
Table II.1
Sampling Errors for Various Academy
Subgroups
Su
bg
ro Populati 05/ 10/ 15/ 20/ 25/ 30/ 35/ 40/ 45/ 50/
up on Sample 95 90 85 80 75 70 65 60 55 50
-- -------- ------ ---- ---- ---- ---- ---- ---- ---- ---- ---- ----
Military Academy
--------------------------------------------------------------------------------
Al 3,638 430 2.4 3.0 3.3 3.7 4.0 4.2 4.4 4.5 4.5 4.6
l
c
a
d
e
t
s
Ma 3,232 341 2.8 3.5 4.0 4.2 4.5 4.7 4.9 5.1 5.1 5.2
l
e
s
Fe 406 79 6.6 7.9 8.8 9.5 9.9 10.2 10.2 10.4 10.6 10.6
m
a
l
e
s
Cl 1,044 120 5.5 6.4 7.2 7.8 8.2 8.5 8.5 8.7 8.8 8.9
a
s
s
o
f
1
9
9
4
,
i
n
1
9
9
4
Cl 1,190 125 5.3 6.4 7.1 7.7 8.1 8.1 8.4 8.6 8.7 8.7
a
s
s
o
f
1
9
9
4
,
i
n
1
9
9
1
Naval Academy
--------------------------------------------------------------------------------
Al 4,049 470 2.3 2.9 3.2 3.5 3.8 4.0 4.2 4.3 4.4 4.4
l
m
i
d
s
h
i
p
m
e
n
Ma 3,564 382 2.6 3.3 3.8 3.9 4.2 4.5 4.7 4.8 4.9 4.9
l
e
s
Fe 485 88 6.4 7.5 8.3 9.0 9.4 9.7 9.6 9.9 10.0 10.1
m
a
l
e
s
Cl 967 120 5.5 6.4 7.2 7.8 8.2 8.5 8.4 8.7 8.8 8.8
a
s
s
o
f
1
9
9
4
,
i
n
1
9
9
4
Cl 1,157 146 4.8 5.7 6.4 6.9 7.3 7.3 7.6 7.8 7.9 7.9
a
s
s
o
f
1
9
9
4
,
i
n
1
9
9
1
Air Force Academy
--------------------------------------------------------------------------------
Al 4,012 428 2.5 3.1 3.3 3.7 4.0 4.2 4.4 4.5 4.6 4.6
l
c
a
d
e
t
s
Ma 3,495 338 2.8 3.5 4.1 4.2 4.6 4.8 5.0 5.1 5.2 5.2
l
e
s
Fe 517 90 6.3 7.4 8.3 8.9 9.3 9.6 9.6 9.8 10.0 10.0
m
a
l
e
s
Cl 1,029 101 6.3 7.2 8.0 8.7 9.1 9.4 9.4 9.6 9.7 9.8
a
s
s
o
f
1
9
9
4
,
i
n
1
9
9
4
Cl 1,283 137 4.9 6.0 6.8 7.2 7.7 7.6 7.9 8.2 8.3 8.3
a
s
s
o
f
1
9
9
4
,
i
n
1
9
9
1
--------------------------------------------------------------------------------
The 1994 questionnaires were administered at all three academies in
May 1994. The original administration of the academy student
questionnaires occurred in December 1990 at the Naval Academy and in
March 1991 at the Military and Air Force academies.
REPRESENTATIVENESS OF NARRATIVE
COMMENTS
-------------------------------------------------------- Appendix II:6
The write-in comments of students have been used in a number of
places throughout this report to illustrate various points. While
useful in illustrating the intensity of opinions held by some
respondents, there is no way to quantify how widely held the views
voiced by these respondents may be. The percentage of respondents
who provided write-in comments was 37 percent at the Military
Academy, 39 percent at the Naval Academy, and 33 percent at the Air
Force Academy.
ASSESSMENT OF ACADEMY OFFICIALS
REGARDING WHETHER VARIOUS
SCENARIOS MIGHT CONSTITUTE AN
HONOR VIOLATION
========================================================= Appendix III
Military Naval Air Force
Scenario Academy Academy Academy
-------------------------------------------- ---------- ---------- ----------
A cadet/midshipman answers a questionnaire Probably a Probably a Probably a
falsely in an attempt to protect the Academy violation. violation. violation.
from adverse findings.
A cadet/midshipman knowingly marks someone Probably a Probably a Probably a
present on a roster when that person was not violation. violation. violation.
there.
A cadet/midshipman falsely states that he/ Unable to Unable to Probably a
she had a date New Year's Eve. determine. determine. violation.
A cadet/midshipman takes something from Probably Probably a Unable to
another cadet/midshipman's room without not a violation. determine.
first getting permission or leaving a note. violation.
An academically struggling cadet/midshipman Probably Probably a Unable to
receives assistance from a classmate on a not a violation. determine.
homework assignment that was to be done violation,
independently. if
documented
.
A cadet/midshipman promises to perform a Unable to Probably Unable to
task for another cadet/midshipman and then determine. not a determine.
fails to do so. violation,
but may be
a conduct
violation-
-failure
to do
duty.
As a favor to a civilian friend (because the Probably Probably a Probably
item is cheaper than in civilian stores), a not a violation. not a
cadet/midshipman makes a purchase at the violation. violation.
cadet/midshipman store for which he/she will
be reimbursed.
A cadet/midshipman knows that a boast made Unable to Probably Probably a
by another cadet/midshipman is false and he/ determine. not a violation.
she just lets it slide. violation.
A cadet/midshipman finds a $20 bill on the A Probably Probably a
floor of the cadet/midshipman store and violation not a violation.
keeps it without any attempt to determine if no violation.
who lost it. attempt
made to
find
owner.
A cadet/midshipman stuffs clothing under Probably Probably a Probably
his/her covers to make it appear to anyone not a violation. not a
who looks in that he/she is in bed. violation. violation.
A cadet/midshipman who is below the legal Probably Probably a Probably
drinking age orders an alcoholic beverage at not a violation. not a
a restaurant. violation. violation.
A cadet/midshipman commander disregards a Probably Probably Probably
directive because he/she believed enforcing not a not a not a
it could have an adverse effect on members violation. violation. violation.
of his/her unit.
A cadet/midshipman tells a "little white Probably Probably Probably
lie" to spare hurting someone's feelings. not a not a not a
violation. violation. violation.
A cadet/midshipman makes an unauthorized Probably a Probably Probably a
personal toll call using an official violation. not a violation.
telephone without paying for it. violation,
but may be
a conduct
offense.
A cadet/midshipman asks a friend who took an Asking is Probably Probably a
examination earlier what the examination not a not a violation.
covered. violation. violation.
A cadet/midshipman complies with a directive Probably a Probably Probably a
to shade an official report to make the violation. not a violation.
company/squadron's performance look better violation.
than it actually was.
A plebe/doolie who had been mistreated by an Probably a Probably a Probably a
upperclass cadet/midshipman denies it when violation. violation. violation.
asked by someone in the chain of command.
A cadet/midshipman submits a report that is Probably a Probably a Probably a
literally the truth but does not tell the violation. violation. violation.
complete story because it would reflect
badly on him/her.
A cadet/midshipman strongly disagrees with a Probably Probably Probably
course of action suggested by his/her not a not a not a
Company Tactical Officer/Company Officer/ violation. violation. violation.
Air Officer Commanding but does not voice an
objection even when specifically asked.
A cadet/midshipman covers his/her room Probably Probably Probably
windows with a blanket and stuffs a towel not a not a not a
under the door so that studying after violation. violation. violation.
lights-out would not be detected.
A cadet/midshipman below the legal drinking Probably a Probably a Probably a
age uses a false ID in order to purchase violation. violation. violation.
alcoholic beverages.
A cadet/midshipman takes a government A Probably a Probably a
vehicle for a "joyride" but does not leave violation violation. violation.
the Academy grounds. of UCMJ.
A cadet/midshipman allows a person to draw a Unable to Probably a Probably a
false impression in order to convince that determine. violation. violation.
person to perform a favor.
An unprepared cadet/midshipman fails to Probably Probably Probably a
raise his/her hand when an instructor asks not a not a violation.
if anyone is unprepared. violation. violation.
A cadet/midshipman tells a "little white Unable to Probably Probably a
lie" in order to save face or avoid being determine. not a violation.
embarrassed. violation.
A cadet/midshipman asks another to perform Unable to Probably Unable to
his/her duty so that the cadet/midshipman determine. not a determine.
can study, but goes out instead of studying. violation.
A cadet/midshipman uses a paper from a Probably Probably a Unable to
company area file and, while not copying any not a violation. determine.
of it verbatim, paraphrases it completely. violation
if
documented
.
--------------------------------------------------------------------------------
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================== Appendix IV
NATIONAL SECURITY AND
INTERNATIONAL AFFAIRS DIVISION,
WASHINGTON, D.C.
-------------------------------------------------------- Appendix IV:1
William E. Beusse
OFFICE OF THE GENERAL COUNSEL
-------------------------------------------------------- Appendix IV:2
Ernie E. Jackson
DENVER REGIONAL OFFICE
-------------------------------------------------------- Appendix IV:3
Rudolpho G. Payan
Richard Y. Horiuchi
Robin Brooks