By Leslie Bonilla Muniz
Indiana Capital Chronicle

INDIANAPOLIS — A proposal barring Indiana National Guard members from refusing non-judicial punishment — and from demanding military trials — narrowly survived a hearing Tuesday. The provision is part of a trade-off within the bill that guard officials say would promote efficiency, but that veterans say isn’t a good enough exchange.

“House Bill 1076 represents a military decision, by the senior leadership of the Indiana N

ational Guard, that it is the best way to ensure and maintain the good order and discipline of the

organization while protecting the rights of all service-members,” Adjutant General Dale Lyles, the guard’s leader, told senators Tuesday.

But opposing veterans weren’t swayed.

“I don’t believe we heard anything today that changes our mind,” American Legion of Indiana member Kenny Cooper said after the meeting.” There wasn’t anything that was brought up except ‘trust me.’”

Disputed trade-off

House Bill 1076 — and an identical Senate Bill 279 — would make one wholly uncontroversial change, and one exchange that’s gotten a mixed reception.

The legislation would give Lyles the right to convene military trials for the most severe alleged offenses, known as “general” courts-martial. Right now, only Gov. Eric Holcomb has that power, but Lyles previously told lawmakers that Holcomb hadn’t called any in at least the last three years.

And the bills would alter some elements of non-judicial punishments used for minor offenses. Typically, commanders notify the guard members involved, consider the evidence presented and decide if the members committed the alleged offenses.

But members currently have the right, upon notification, to demand trials by courts-martial. The bills would eliminate that right, and in exchange, block commanders from incarcerating members as part of non-judicial punishments.

“I think the bill is balanced,” said Sen. Aaron Freeman, R-Indianapolis, the bill’s Senate sponsor. “I think it makes sense.”

The American Bar Association drafted the model code, and 26 states have already adopted similar language, Lyles said.

But the majority of the testimony Tuesday was in outraged opposition to the trade-off.

Potential for abuse

Supporters and opponents disagreed on which approach would better protect members and minimize the prospect of abuse.

Lyles said the guard wanted to avoid courts-martial for offenses that are “not serious enough” — which he called a “misuse of time and resources.”

If a court-martial isn’t convened, he said, “the commander is now faced with two unappealing options: pursue administrative separation of the soldier or do nothing — which is often the case — causing a corrosive effect on the good order and discipline.”

Lyles told lawmakers he had called no “special” or “summary” courts-martial, the two types he is able to convene, in the last year. He worried members’ defense lawyers would recommend seeking courts-martial over non-judicial punishments to “elongate the process and not allow us to use timely justice.”

But bill opposition feared the consequences of limiting members’ options.

During non-judicial proceedings, members can appeal their commanders’ decisions up to the next level, which Lyles said ensured access to neutral decision-makers. Opponents said members should have the opportunity to go outside their chain of command.

“[While] one hopes that the subsequent commander, higher commander will be objective in evaluating all evidence before finalizing the decision to impose [non-judicial punishment], it cannot be guaranteed,” retired Air Force Col. Tim Cahoon said. “… It is only right that an individual have the option of requesting a court-martial by an objective third party … in lieu of accepting potentially career-crushing non-judicial punishment that often remains in their permanent record.”

Air Force veteran Lisa Wilken told the Capital Chronicle that she’d nearly been served non-judicial punishment until she accessed a neutral arbiter.

As a military sexual trauma survivor, she missed an hour of work monthly to attend survivor meetings. Wilken said her supervisor tried to give her a letter of counseling over the meetings — which she didn’t sign — and escalated to a letter of reprimand, which she also declined to sign.

“I went and visited our area defense counsel as they were preparing to present me with [non-judicial proceedings]. All it took was me meeting with the area defense counsel and explaining what was happening,” Wilken said.

She didn’t begin those proceedings, or sign the letters; instead, her supervisor got a letter of reprimand.

Bill moves forward

Lyles said the bill would continue allowing for due process, because members would still be notified in advance of the proceedings, be able to make their case, and receive decisions from someone neutral — alongside other rights. A guard spokesperson also added that “it does not deny due process because it removes correctional custody as a punishment.”

“I will assure this committee that I will faithfully and diligently watch this as it moves through and if it gets passed, to ensure … that we get the results that I’m trying to achieve,” Lyles told lawmakers. “If it doesn’t, you have my word that I will come back and amend it.”

The committee passed the bill 4-3, with Sen. Jim Buck, R-Kokomo, joining two Democrats in opposition.

Rep. Randy Frye, R-Greensburg, whose committee initially passed the bill unanimously in January, said he remained in strong support of the proposal. He’ll soon consider the identical Senate version.

The legislation, he said, would emphasize behavioral rehabilitation, instead of the firings or convictions that could result from courts-martial.

“I think their opinions are flawed,” Frye said of bill opponents. “I think that the [judge advocate] officers who testified are experts. The author of the bill is himself a lawyer in the United States Navy. The sponsor, Sen. Freeman, is an attorney.”

Wilken said she and other American Legion of Indiana members had meetings scheduled with the guard, Indiana’s National Guard Association and bill authors, but hadn’t successfully spoken with any, or received promised information.

“We do have some National Guard members who have wanted to speak but they’ve been told by their command that it could put a target on their back or have been told that they’re now on the National Guard radar,” Wilken also said. “That should never happen.”

A guard spokesman said that all members “are entitled to their freedom of speech” but “cannot speak on behalf of the Indiana National Guard in an official capacity.”

This story has been updated with statements from the Indiana National Guard.

Correction: A previous version of this story included an incorrect January committee vote count. It was unanimous.

See the original story here.