Legislature(2015 - 2016)BUTROVICH 205
04/12/2016 08:00 AM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearings | |
| HB126 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| += | HB 273 | TELECONFERENCED | |
| + | HB 126 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 126-CODE OF MILITARY JUSTICE; APPEALS
9:14:22 AM
CHAIR STOLTZE announced the consideration of HB 126.
9:14:55 AM
REPRESENTATIVE GABRIELLE LEDOUX, Alaska State Legislature,
Juneau, Alaska, sponsor of HB 126, related that HB 126 was a
major change in the Alaska Military Code of Justice (AMCJ). She
noted that the AMCJ had not been changed since 1955. She
summarized that bill creates a state code of military justice
that was similar to the federal code. She explained that the
AMCJ applies to the militia, the Alaska National Guard, and the
Alaska State Defense Force.
She specified that the bill was a disciplinary tool and noted
two types of punishments as follows:
1. Non-judicial for less serious offenses in which there are
no jail time and no separation from the military.
2. Court-martial for breaking military criminal law that
include jail and separating from the Guard penalties.
REPRESENTATIVE LEDOUX detailed that crimes noted in the AMCJ
included strictly military as well as those with civilian
equivalencies. She noted that militia may prosecute civilian-
type crimes only if the civilian prosecutors decline to
prosecute. She continued that the AMCJ covered court-martial
rules, procedures, and an appeals process. She set forth that
the bill empowers the Alaska National Guard to address bad
actions and sever bad actors from service. She set forth that
the bill avoids cumbersome state termination procedures, lets
Alaska National Guard members and the public know the
expectations and the consequences were clear.
9:17:41 AM
She detailed that the latest iteration of the bi-partisan bill
included involvement from Representative Tuck, Senator
Wielechowski, and the Alaska National Guard.
CHAIR STOLTZE noted that the committee had experienced a lack of
engagement by the attorney general's office, the Department of
Law, and the administration regarding the bill.
REPRESENTATIVE LEDOUX replied that her office worked extensively
with attorneys from both Legislative Legal and the Alaska
National Guard.
9:23:01 AM
LAURIE HUMMEL, Commissioner, Department of Military & Veterans'
Affairs (DMVA), and Adjutant General of the Alaska National
Guard, Anchorage, Alaska, said HB 126 was the most critical
remaining step with improving personnel and operational
readiness in the Alaska National Guard. She set forth that
without a workable ACMJ, the Alaska National Guard would
continue to struggle with the issues brought to light several
years ago.
She disclosed that in response to the culture that grew in the
Alaska National Guard prior to her appointment, she set four
goals as follows:
1. Foster professionalism and ethical fitness.
2. Create preventative measures and offer comprehensive
training to mitigate improper behavior, especially in
regards to sexual harassment or violence.
3. Help victims of improper behavior.
4. Bring offenders to justice.
COMMISSIONER HUMMEL set forth that the Alaska National Guard was
on target with the first three goals, but the fourth goal would
never be attained without an updated ACMJ.
She summarized that HB 126 was a critical step forward toward
building and maintaining the public's trust and confidence.
9:25:52 AM
SENATOR HUGGINS emphasized that the Alaska National Guard is not
lawless. He set forth that the chain of command and leadership
is what makes good units. He read the following:
Military discipline is not achieved exclusively or
primarily through use of or threat of the military
criminal law process, the court-martial. Commanders
use the combination of tools to maintain discipline
including leadership by example, training, corrective
measures, and administrative actions authorized by
applicable regulations.
He remarked that whether military or other organizations,
leadership by example, high standards of performance, and taking
immediate action results in not having to use court-martials or
non-judicial punishments.
COMMISSIONER HUMMEL agreed that discipline is determined by
ethical leadership through the use of role modeling and applying
the same set of standards for everyone. She addressed the lack
of administrative procedures and a "toothless" ACMJ that
impacted the Alaska National Guard in the past.
SENATOR HUGGINS agreed that the bill would provide another tool,
but conceded that the symptoms of the people being dealt with
does not go away just because of the tool. He set forth that the
intent is not to have conduct that has to be dealt with.
9:30:32 AM
SENATOR WIELECHOWSKI pointed out that the National Guard
Bureau's Office of Complex Investigations (OCI) did a
comprehensive investigation and issued a 229-page report
stemming from a 6-month long investigation on the Alaska
National Guard. He disclosed that OCI determined that the
following occurred:
Actual and perceived favoritism, ethical misconduct,
and that the Alaska National Guard is not properly
administering justice.
SENATOR WIELECHOWSKI noted that Alaska's former governor said:
This culture of mistrust and failed leadership in the
Guard ends now.
He asked if there were any recommendations by organizations that
Alaska pass a uniform code of military justice.
COMMISSIONER HUMMEL answered yes. She specified that OCI
recommended that a practicable code of military justice be
developed.
9:34:14 AM
CHRIS WEAVER, Lieutenant Colonel (LTC), Staff Judge Advocate,
Alaska National Guard, Joint Base Elmendorf-Richardson,
Anchorage, Alaska, shared his military background, noted that he
became a judge advocate in 2003, served as chief of military
justice in Kosovo, became a defense attorney as well as deputy
general counsel for the California National Guard, and recently
asked by General Hummel to be Staff Judge Advocate for the
Alaska National Guard. He said he believed in General Hummel and
asserted that she was the right leader for the Alaska National
Guard. He asserted that the nature of the job was towards his
strengths in building processes, working with people and future
leaders so that the processes stay in place and are implemented
correctly.
9:38:33 AM
CHAIR STOLTZE asked what were his strengths and weaknesses in
being from the outside.
LTC. WEAVER replied that his weakness was that he was still
learning about Alaska, but his strengths included having a broad
experience as a defense attorney and prosecutor as well as being
given the latitude in Alaska to build a broad experience base to
assist with the bill.
9:40:23 AM
He proceeded with a presentation on the ACMJ and reviewed the
events which led up to the HB 126. He noted that the OCI issued
a report in 2014. He pointed out that there was no record of an
ACMJ court-martial since the current code's inception in 1955.
He added that he has found no non-judicial punishment in the
Alaska National Guard. He revealed that most discipline has been
administratively done.
9:42:03 AM
SENATOR HUGGINS asked if there was an authority to do court-
martials in the Alaska National Guard.
LTC. WEAVER replied that the current code was not very thorough
and no one has been able to figure out exactly what is a crime.
He detailed that HB 126 would result in an ACMJ that was more
specific.
SENATOR HUGGINS stated that he supported the essence of HB 126.
He surmised that the authority for non-judicial punishment was
probably well delineated in the ACMJ.
LTC. WEAVER pointed out that he has no record of a non-judicial
punishment every being done. He said he did not know the reasons
for no non-judicial punishments. He set forth that the new ACMJ
will be more specific and bring a process to the Alaska National
Guard.
SENATOR HUGGINS noted that some Alaska National Guard members
under disciplinary measures where one person received an
honorable discharge and others were recommended for promotion.
He reiterated that passing the bill does not make the problem go
away and stressed that leadership and understanding the
standards was vital.
9:46:33 AM
LTC. WEAVER concurred with Senator Huggins. He continued with
his presentation and detailed that regulations would be
implemented by July 2016 if HB 126 passes.
He revealed that George Washington said, "Discipline is the soul
of an army." He agreed with Senator Huggins that leadership was
key along with ability to discipline soldiers that do act
inappropriately. He noted that the Alaska Criminal Code would
have the right of first refusal on crimes that are also
civilian. He remarked that the ACMJ was an ongoing process.
SENATOR HUGGINS noted that he was concerned with the timeline in
establishing the Military Appeals Commission due to the
confirmation process. He remarked that court-martialing people
prior to instituting the Military Appeals Commission was
probably not wanted.
9:49:16 AM
CHAIR STOLTZE voiced concern about the appointment process and
the Legislature's lack of involvement.
LTC. WEAVER deferred to Representative LeDoux to address the
appointment process. He explained that the ACMJ was military in
nature and surmised that the language in the bill was based on
the appointment process to the appeals courts on the federal
side.
He addressed "Concurrent Offenses" and explained that the
offenses were similar to the civilian crimes. He specified that
civilians have the right of first refusal. He said the National
Guard does not want to prosecute cases that are civilian in
nature because that was the civilian court's job. He detailed
that the National Guard will not prosecute if the civilian court
prosecutes in order to avoid double-jeopardy issues.
SENATOR HUGGINS asked what would occur if an offense happens off
of the compound.
9:52:32 AM
LTC. WEAVER explained that jurisdiction would depend on whether
an individual was "on orders;" however, a civilian court has the
right of first refusal for civilian crimes.
CHAIR STOLTZE asked if double-jeopardy would include any civil
rights actions by the US Justice Department.
LTC. WEAVER answered yes, if the action was a crime.
CHAIR STOLTZE asked if the federal government would be allowed
to pursue.
LTC. WEAVER answered yes, if the action was a federal crime.
He reviewed the "ACMJ Basics" and noted that offenses would be
adjudicated through court-martials or non-judicial punishment
(NJP) for minor offenses.
9:54:50 AM
He addressed the "State Militia" and specified that the bill
applied to individuals under "active duty" status for: Alaska
National Guard, Alaska Naval Militia, and the Alaska State
Defense Force.
LTC. WEAVER examined the "National Guard Duty Status" and
specified that the ACMJ applied to "State Active Duty" and
"Title 32" statuses.
CHAIR STOLTZE readdressed double-jeopardy and inquired if a
civilian court's adjudication be used on the non-judicial
proceedings.
LTC. WEAVER answered yes. He specified that non-judicial does
not play a part in double-jeopardy.
CHAIR STOLTZE asked if a non-judicial action could be viewed as
a personnel action.
LTC. WEAVER answered yes.
9:57:23 AM
SENATOR HUGGINS asked what actions would occur to an Alaska
National Guard member who gets in trouble "downtown" when not on
active duty.
LTC. WEAVER specified that a civilian-like crime not enumerated
in HB 126 would depend on whether the civilian court decides to
take the case. He said if a drilling-guard member's crime was
enumerated in the ACMJ under HB 126, then the National Guard
would have jurisdiction and the individual would be subject to
non-judicial punishment.
SENATOR HUGGINS asked what would occur if an Alaska National
Guard member declined non-judicial punishment.
LTC. WEAVER specified that the idea would be for a "no turndown"
non-judicial punishment system. He explained that the reason for
a "no turndown" was due to soldiers escaping justice by asking
for a court-martial with the knowledge that the case would
unlikely proceed because the process was resource intensive. He
noted that the appeal process was available as well.
10:00:42 AM
SENATOR HUGGINS asked if the Alaska National Guard's non-
judicial/Article 15 system were both "Company Grade" and "Field
Grade."
LTC. WEAVER replied that "General Officer" would be included
too.
SENATOR MCGUIRE asked that Mr. Weaver address the "no turndown"
or "not to decline" system and its impact on morale and conduct.
10:02:52 AM
LTC. WEAVER explained that justice would be swift and leadership
would ensure that discipline was being dealt with correctly.
SENATOR MCGUIRE asked how sexual assault, intimidation and
harassment were being addressed.
10:06:12 AM
LTC. WEAVER explained that HB 126 has taken the language from
the Department of Defense on sexual assault. He specified that
sexual assault was a military crime that effects the unit, its
morale and its ability to perform a mission. He pointed out that
sexual assault also applied to male victims. He revealed that
soldiers, airmen, Judge Advocate General's Corps (JAG), and
judges were trained on sexual assault and sexual harassment. He
reiterated that the Alaska National Guard would look at a case
if the civilian-side declines a sexual assault case.
SENATOR MCGUIRE concurred that sexual assault also affects men,
entire units and families. She asserted that sexual assault was
a crime of power and not of sex. She set forth that dealing with
an over-arching threat on a regular basis of intimidation,
harassment, and sexual assault was overwhelming for a person
that was trying to defend their country or state. She said the
ability to provide preventative training was important as well
as responding swiftly so that everyone in the unit sees that the
conduct would not be allowed.
10:09:51 AM
LTC. WEAVER addressed what behavior can be punished under the
ACMJ: military offenses, and offenses chargeable in both
military and civilian court. He added that "Article 134" or
"Section 634" in ACMJ addressed conduct that is "counter to good
order and discipline" or "brings discredit upon service" as
well.
He explained that "24/7 Jurisdiction" applied to:
· Active Guard Reserve (AGR) on orders "24/7."
· Man Day (M-day) does apply to military offenses.
· Alaska State Defense Force.
· State Active Duty, applies to any Alaska National Guard
member.
· No jurisdiction for "Title 10."
LTC. WEAVER reviewed where jurisdiction attaches as follows:
· Anywhere in the State of Alaska.
· Outside the state and on orders, "official military
travel."
· Not outside the state and not on orders, "personal travel."
He addressed Non-judicial Punishment (NJP) and explained that
NJP was used for minor offenses. He reiterated that serious
offenses would go to court-martial.
He detailed that there were three levels of court-martial:
1. Summary: lower level.
2. Special: a little bit higher than "Summary."
3. General: highest level of court-martial.
He reviewed the levels of maximum punishments and noted the
variables that affect punishment.
10:12:26 AM
SENATOR HUGGINS pointed out that the jurisdiction on The State
Dense Force members may impact individuals who may not be aware
of its consequences.
LTC. WEAVER reviewed the details on the "No Turn-Down" as
follows:
· When presented with NJP, service-members do not have the
right to demand trial by court-martial.
· Court-martials are very resource intensive.
· Confinement cannot be ordered under non-judicial
punishment.
He provided an overview of non-military and military offenses
with maximum punishments allowable under HB 126.
10:14:51 AM
CHAIR STOLTZE asked if SB 91, the omnibus crime bill, would
change the penalties in HB 126.
LTC. WEAVER conceded that he has not followed SB 91 through the
Legislature.
10:16:07 AM
KALYSSA MAILE, Staff, Representative LeDoux, Alaska State
Legislature, Juneau, Alaska, revealed that Legislative Legal
determined that SB 91 should not affect HB 126.
CHAIR STOLTZE asked if there were any penalties of which the
death penalty could be applied.
LTC. WEAVER answered no. He specified that penalties were
limited to: confinement, discharge, and forfeitures through
fines.
SENATOR HUGGINS stated that "absent without leave" (AWOL), was a
symptom of rising problems in units. He asked if Mr. Weaver knew
the Alaska National Guard's AWOL statistics.
LTC. WEAVER answered that he did not know.
SENATOR HUGGINS asked what happens to an Alaska National Guard
member that deserts.
LTC. WEAVER replied that he has dealt with the issue and
addressing desertion takes a multi-pronged approach depending on
the AWOL level. He provided examples and asserted that there are
consequences if a person does not meet their obligations.
10:20:20 AM
SENATOR HUGGINS asked if the Alaska National Guard uses
"flagging" where a person cannot move or be promoted after a
receiving an Article 15 for being AWOL.
LTC. WEAVER replied that the Army does have "flagging," but the
Title 10 Air Force and the Air National Guard does not. He
explained that "flags" occur prior to the disposition of the
punishment and the "flagging" comes off after the punishment is
received.
10:22:30 AM
CHAIR STOLTZE asked what happens if an Alaska National Guard
member fails to show up for their adjudication hearing. He noted
that not showing up for court proceedings was a common offense
in the civilian-criminal system and adjustments have been made
on sanctions.
LTC. WEAVER answered that a person would be separated from the
National Guard with the possibility of facing an additional
court-martial.
He summarized military crimes and noted that conduct unbecoming
an officer only applied to officers. He added that the General
Article offense encompassed the element of a wrongful act and or
an additional element that is prejudicial to good order and
discipline, or conduct of a nature to bring discredit on the
militia.
10:25:38 AM
SENATOR WIELECHOWSKI asked if the punishments listed in the ACMJ
were patterned after the federal Uniform Code of Military
Justice (UCMJ).
LTC. WEAVER explained that some punishments were mirrored after
the federal UCMJ and some were policy calls made by the House.
SENATOR HUGGINS suggested that a process be instituted whereby
someone outside the Alaska National Guard reviews the bill.
10:28:59 AM
MS. MAILE noted Senator Wielechowski's questions on offenses and
detailed that no new offenses were created in the bill. She
specified that some minor changes were made, but no new crimes
were created.
SENATOR MCGUIRE asked if there will be an expert review of the
bill.
10:31:33 AM
CHAIR STOLTZE replied that his office would work with
Representative LeDoux on finding a person with a critical and
insightful eye and not an "echo."
SENATOR MCGUIRE reiterated that the bill was a problem in search
of a solution. She continued as follows:
Either the victims don't benefit or the accused does
not benefit. Either way you look at it if you put
something in place that is subject to constitutional
challenge or legal challenge, or is unfair or
unequitable as you look at other laws making their way
through, that would not be good.
10:33:16 AM
KAREN MANSFIELD, Brigadier General, Air National Guard, Joint
Base Elmendorf-Richardson, Anchorage, Alaska, commented on the
ACMJ as follows:
In the military, the intent of the disciplinary action
is not to remove people from the ranks, but to affect
reform and to keep them productive. Reform requires
immediate, measurable, visible corrective action. HB
126, the Alaska Code of Military Justice (ACMJ) will
give commanders the tools to encourage team members to
behave appropriately, which promotes good order and
discipline, and builds trust and respect in the corps.
Without the ACMJ, our existing tools: reprimand, rank
reduction, and administrative discharge are just that,
administrative. The paperwork processes for discipline
are not timely, they lack impact, and can be invisible
to the other members of the organization.
With the ACMJ the command gains the ability to affect
prompt corrective actions with a two-fold benefit.
First, we may change behavior at the onset when
problems are smaller and correctable. Second,
corrective actions are visible and reflect
accountability to all other members of the
organization. We owe our soldiers and airmen that
accountability is a key component in a legal, ethical,
moral, and a transparent Alaska National Guard they
deserve.
10:35:49 AM
LEE KNOWLES, Colonel, Alaska Army National Guard, Fort
Richardson, Alaska, stressed the importance of having a military
code of justice and listed qualities discipline should have. He
said the ACMJ is about empowering leaders.
10:38:03 AM
MS. MAILE presented a sectional review as follows:
Section 1 of the bill gives the Supreme Court the
ability to review decisions made by the Military
Appeals Commission.
Section 2 amends the suits against officers and
enlisted persons under AS 26.05.140 to note that the
provision does not apply to an action or proceeding
under the Code of Military Justice.
Section 3 is a conforming change.
Section 4 is the "meat" of this bill, it's where the
Code of Military Justice is being augmented or
created.
MS. MAILE summarized that the majority of the bill's sections
provide for procedures initializing a court-martial and reviewed
the three levels of court-martials and their penalties.
She pointed out that the addition of a grand jury requirement
was unique to Alaska's code and was not in early versions of the
bill. She set forth that the grand jury requirement was put into
the bill to reflect Alaska's heightened constitutional
requirements.
She continued her sectional as follows:
Section 5 of the bill amends AS 33.30.011 to include
"Held under the authority of state law."
Section 6 requires persons confined under the Code can
be committed to the custody of the Department of
Corrections as directed by the adjutant general. In
this bill there is the ability for a person to be
confined in a military or civilian prison. We don't
have a military prison here, so the expectation is
that they would become part of the Department of
Corrections system.
Section 7 requires the attorney general to assist the
military court in obtaining the commitment of a person
accused under AS 26.05 for a competency examination.
Section 8 makes conforming changes.
Section 9 repeals those existing parts of the Code of
Justice which we previously heard have been
underutilized and very difficult to use.
Section 10 provides the bill applies to offenses
occurring on or after the effective date of the act.
You see in Section 12 the effective date is July 2016.
Section 11 provides the staggered terms for the
Military Appeals Commission. This is uncodified law
and just makes it so that not everybody's term on the
Military Appeals Commission comes up at the same time.
10:43:29 AM
MS. MAILE addressed crimes, penalties, and the statute of
limitations in the ACMJ as follows:
In early iterations of this bill, the crimes and the
penalties were not included in statute, it was the
original intention that these would be created through
regulation; however, because this bill is essentially
creating a judicial system for a group of people, we
felt that it was important to articulate these in
statutes so that any changes that were desired would
have to come through the State Legislature and be
thoroughly vetted.
The statute of limitations, we clarified to say that
the imposition of non-judicial punishment is limited
to within two years of the offense and the non-
judicial punishment is limited to three years within
that.
She reiterated that the crimes and penalties were now in statute
and highlighted the change as the fundamental change that has
come through the bill's iterations.
She noted that the House Judiciary Committee had a number of
amendments, but many were minor word changes.
CHAIR STOLTZE announced that HB 126 would be held in committee.