Military Justice: DOD and the Coast Guard Need to Improve Their Capabilities to Assess Racial Disparities

The Uniform Code of Military Justice (UCMJ) was established to provide a statutory framework that promotes fair administration of military justice. Every active-duty servicemember is subject to the UCMJ, with more than 258,000 individuals disciplined from fiscal years 2013-2017, out of more than 2.3 million unique active-duty servicemembers. A key principle of the UCMJ is that a fair and just system of military law can foster a highly disciplined force.

This statement provides information on 1) the collection of race and ethnicity information in the military services' databases, 2) the extent of racial disparities in investigations, disciplinary actions, and case outcomes in the military justice system, and 3) steps taken by DOD to study any identified disparities. This statement is based on GAO -19-344 issued on May 30, 2019. As part of that work, GAO analyzed data from the investigations, military justice, and personnel databases from the military services, including the Coast Guard, from fiscal years 2013-2017 and interviewed agency officials.

In May 2019, GAO found that the military services did not collect consistent information about race and ethnicity in their investigations, military justice, and personnel databases. Thus, the military services are limited in their ability to identify disparities (i.e., instances in which a racial or ethnic group was overrepresented) in the military justice system. The military services were not required to, and thus did not, report demographic information that would provide greater visibility into potential disparities in their annual military justice reports.

GAO's analysis of available data identified disparities in how likely servicemembers of different races were to be subjects of investigations recorded in military criminal investigative organization databases and tried in general and special courts-martial in particular. For example, in three military services, Black servicemembers were about twice as likely as White servicemembers to be tried in general and special courts-martial. Racial disparities generally were not present in convictions or punishments. These findings show an association for disparities at particular stages of the military justice process, but are inconclusive regarding other stages. However, GAO's findings of racial disparities, taken alone, do not establish whether unlawful discrimination has occurred, as that is a legal determination that would involve other corroborating information and supporting statistics.

Note: These analyses, taken alone, should not be used to make conclusions about the presence of unlawful discrimination. These multivariate regression analysis results estimate whether a racial group is more likely or less likely to be the subject of an investigation or a trial in general or special courts-martial after controlling for race, gender, rank, and education, and in the Air Force, years of service. GAO made all racial comparisons to White servicemembers, and grouped individuals of Hispanic ethnicity together, regardless of race. The Other race category includes individuals who identified as American Indian/Alaska Native, Asian, Native Hawaiian/Other Pacific Islander, and multiple races.

The Department of Defense (DOD) has taken some steps to study disparities but has not comprehensively evaluated the causes of racial disparities in the military justice system. Doing so would better position DOD to identify actions to address disparities and to help ensure the military justice system is fair and just.

GAO made 11 recommendations in prior work, including that the military services develop the capability to present consistent race and ethnicity data, and DOD and the Coast Guard include demographic information in military justice annual reports and evaluate the causes of disparities. DOD and the Coast Guard generally concurred. Progress has been made in addressing some of the recommendations. Continued attention is needed to ensure that the remainder of these recommendations are addressed.

Thank you for providing me with the opportunity to discuss GAO’s  findings and recommendations about racial disparities in the military  justice system. Recent events, such as the killings of Ahmaud Arbery  and George Floyd, have raised public awareness and activism about  racial bias. Although those cases did not involve military personnel, these  concerns about racial bias carry over to the military justice system. The  Uniform Code of Military Justice (UCMJ) was established to provide the  statutory framework of the military criminal justice system. The UCMJ  contains articles that punish traditional crimes such as unlawful drug use  and assault as well as unique military offenses including desertion, failure  to obey orders or regulations, and misbehavior before the enemy, among  others. The Military Justice Review Group elaborated on the purpose of  the UCMJ, stating that its current structure and practice embodies a  single overarching principle: a system of military law can foster a highly  disciplined force if it is fair and just, and is recognized as such by both  members of the armed forces and by the American public. Every active- duty servicemember of the Army, the Navy, the Marine Corps, the Air  Force, and the Coast Guard is subject to the UCMJ, with more than  258,000 individuals disciplined from fiscal years 2013-2017, out of more  than 2.3 million unique active-duty servicemembers.

In response to a provision in House Report 115-200, accompanying a bill  for the National Defense Authorization Act for Fiscal Year 2018, in May  2019, we issued a report that focused on differences in information the  military services collect about the race and gender of servicemembers  convicted of violations of the UCMJ as well as the extent that disparities  may exist in the military justice system. My statement today is based on  that report and addresses (1) the collection of race and ethnicity  information in the military services’ investigations, military justice, and  personnel databases, (2) the extent of racial disparities in investigations,  disciplinary actions, and case outcomes in the military justice system, and  (3) steps taken by DOD and the military services to study any identified  disparities. Our full report also discusses reporting of data that provides  visibility into disparities challenges in other areas, such as gender  disparities and collection of gender information.

For our May 2019 report, to assess the collection of race and ethnicity  information in the military services’ investigations, military justice, and  personnel databases, we interviewed agency officials and reviewed  service guidance, user manuals, and other documentation. Our review  identified the types of data officials are required to collect and to maintain,  as well as internal procedures the military services follow to input  information about race and ethnicity into these databases. We analyzed  the data we received from the investigations, military justice, and  personnel databases to determine the completeness of the race and  ethnicity information recorded in each of the databases.

To assess the extent of racial disparities in investigations, disciplinary  actions, and case outcomes in the military justice system, we analyzed  military justice actions initiated and recorded in each military service’s  investigations, military justice, and personnel databases between fiscal  years 2013 through 2017—the most recent data available at the time of  our review. To prepare the data for our analyses and to help ensure that  we had consistent profiles for the race and ethnicity of servicemembers,  we merged records using unique identifiers, such as a social security  number or a DOD employee identification number, that were common  among a particular military service’s databases. Based on discussions  with service officials, we treated the personnel databases as the  authoritative sources for servicemembers’ demographic and  administrative data.

In addition, as part of our data preparation, we consolidated the various  race and ethnicity values in the service personnel databases to the five  groups for race and the two groups for ethnicity established by Office of  Management and Budget (OMB) standards. When military service  personnel databases included different or additional possible options for  race and ethnicity than the groups established by the OMB standards, we  consolidated the options in accordance with the definitions for each race  and ethnicity option listed in the OMB standards. We grouped individuals  of Hispanic ethnicity together, regardless of their racial identification, so  that we could compare those of Hispanic ethnicity to other racial groups.  Throughout this statement, we refer to the combined race and ethnicity  values as race.

We conducted multivariate regression analyses to test the association  between servicemember characteristics, such as race and ethnicity, and  the odds of a military justice action. Our multivariate regression analyses  controlled for attributes such as race, gender, rank, years of service, and  education. We conducted data reliability assessments on the datasets we  received from the databases in our review. We examined the  documentation related to the databases, conducted electronic tests on  the data we received, and discussed data reliability with database  managers. We found the variables we ultimately reported on to be  sufficiently reliable for the purposes of our analysis.

Our analyses of these data, taken alone, do not establish whether  unlawful discrimination has occurred, as that is a legal determination that  would involve other corroborating information along with supporting  statistics. Further, we did not identify the causes of any racial disparities,  and the results of our work alone should not be used to make conclusions  about the military justice process.

To assess the extent to which disparities in the military justice system had  been studied by DOD, we conducted a literature review, reviewed prior  GAO reports, and asked DOD and service officials to identify publications  relevant to disparities in military justice. We reviewed those publications  that assessed racial, ethnic, or gender disparities among servicemembers  in the military justice system. More detailed information on our objectives,  scope, and methodology for our prior work can be found in the issued  report.

We conducted the work on which this statement is based in accordance  with generally accepted government auditing standards. Those standards  require that we plan and perform the audit to obtain sufficient, appropriate  evidence to provide a reasonable basis for our findings and conclusions  based on our audit objectives. We believe that the evidence obtained  provides a reasonable basis for our findings and conclusions based on  our audit objectives.

In creating the military justice system, Congress established three types  of military courts, called the summary, special, and general courts-martial,  to adjudicate UCMJ violations. Each of these types of military courts  respectively is intended to deal with progressively more serious offenses,  and each court-martial type may adjudicate more severe maximum  punishments as prescribed under the UCMJ. In addition, an accused  servicemember can receive nonjudicial punishment under Article 15 of  the UCMJ, by which a commander can punish a servicemember without  going through the court-martial process.

There are several steps in the discipline of a servicemember who  allegedly commits a crime under the UCMJ, which are summarized in  figure 1 below.

The military justice process begins once an offense is alleged and an  initial report is made, typically to law enforcement, an investigative entity,  or the suspect’s chain of command. The commanding officer, law  enforcement, or a military criminal investigative organization (MCIO) will  conduct an inquiry or investigation into the accusation and gather all  reasonably available evidence. Investigations are recorded in MCIO  databases when a servicemember is the subject of a criminal allegation;  for the purposes of our report, we say the servicemember had a  “recorded investigation” to describe these cases. Following an  investigation, the first step toward initiation of a court-martial is when the  accused is presented with a list of charges signed by the accuser under  oath, which is called preferral of charges. After charges are preferred, the  charges are forwarded to an officer with sufficient legal authority to  convene a court-martial, also known as the “convening authority.” The  convening authority in receipt of preferred charges may, among other  actions, refer the case to its own court or forward the case to a superior  commander for disposition. Once referred to a general or special court- martial, an accused servicemember may be tried by a military judge alone  or by a military judge with a military jury. In summary courts-martial, a  single commissioned officer who is not a military judge adjudicates minor  offenses and a sentence. Convictions at the general and special court- martial level are subject to a post-trial process and may be appealed to  higher courts in cases where the sentence reaches a certain threshold.

The military justice system, like the civilian criminal justice system,  provides avenues for accused servicemembers to raise allegations of  discrimination, improprieties in investigations, improprieties in disposition,  and improprieties in the selection of the military jury at the court-martial  proceeding, before a judge and on appellate review.

The Military Services Do Not Collect, Maintain, and Report Consistent Information about Race and Ethnicity, Limiting the Ability to Assess Data to Identify Any Disparities

The Military Services Do Not Collect and Maintain Consistent Data for Race and Ethnicity

The military services do not collect and maintain consistent information  regarding race and ethnicity in their investigations, military justice, and  personnel databases. Specifically, the number of potential responses for  race and ethnicity within the 15 databases across the military services  ranges from 5 to 32 options for race and 2 to 25 options for ethnicity,  which can complicate cross-service assessments. For example, the  Army’s personnel database maintains 6 options for race and 23 options  for ethnicity, whereas the Coast Guard’s personnel database maintains 7  options for race and 3 for ethnicity. Table 1 below summarizes how the  databases used by the military services vary in how the servicemember’s  race is entered and the number of potential race options.

Table 2 shows that the military services’ databases also vary in how  information about servicemembers’ ethnicity is entered into the databases  and the number of potential ethnicity options that are collected.

Although the data collected and maintained was not consistent within and  across the military services, each of the military services’ databases  maintained race and ethnicity data for at least 99 percent of the  servicemembers, with the exception of the Coast Guard. The Coast  Guard did not track information about race or ethnicity in its military  justice database, Law Manager. Coast Guard officials stated that this is  because Law Manager was designed to determine the status of court- martial cases, and captures attributes that are needed to generate  relevant UCMJ documents, such as court pleadings. Demographic  information such as race and ethnicity is not included in these official  documents, so this information is not input into Law Manager. Further,  four of the databases we reviewed—including both of the Army’s military  justice databases, and the Navy and the Marine Corps’ military justice  databases—collect information on race and ethnicity in a combined data  field as shown in table 2 above, whereas the other databases collect and  maintain race and ethnicity information in two separate fields. These  inconsistencies limit the military services’ ability to collectively or  comparatively assess these demographic data to identify any racial or  ethnic disparities in the military justice system within and across the  services.

Recommendations to collect and maintain race and ethnicity  information in investigations and personnel databases. To address  these inconsistencies, in our May 2019 report, we made four separate  recommendations to each of the military departments and to the  Secretary of Homeland Security for the Coast Guard. We recommended  that these entities develop the capability to present servicemembers’ race  and ethnicity data in their investigations and personnel databases using  the same categories of race and ethnicity established in the uniform  standards for the military justice databases that were issued in December  2018. As part of these uniform standards, the military services were  directed to collect data related to race and ethnicity in their military justice  databases, to collect race and ethnicity data in separate data fields, and  to standardize the reporting of the data into categories identified in the  standards. However, DOD applied these December 2018 standards  only to the military justice databases and not to the investigations and  personnel databases. DOD officials stated that the investigations and  personnel databases do not fall under the charter of the DOD General  Counsel, which issued the standards for the military justice databases.

DOD and the Department of Homeland Security (DHS) concurred with  these four recommendations. As of October 2019, officials from each of  the military departments said that they were working to implement the  uniform standards for race and ethnicity and the ability to aggregate the  data, and they expected to implement these categories in December  2020. Similarly, as of May 2019, the Coast Guard expected to implement  such modifications by September 2020.

The Military Services Have Not Consistently Reported Data That Provides Visibility about Racial Disparities

Although some military services report demographic information about the  subjects of military justice actions internally, the military services have not  externally reported data that provides visibility into, or would enable an  analysis of, the extent of racial or ethnic disparities in the military justice  system. Officials from all of the military services told us that they compile  internal quarterly or monthly staff judge advocate reports, which include  the total number of each type of court-martial handled by their legal  offices and of nonjudicial punishments. According to military service  officials, the Air Force and the Army reports include demographic  information about servicemembers involved in these cases, such as the  total number of each type of case broken out by the subject’s race and  ethnicity. However, the Navy, Marine Corps, and Coast Guard reports do  not include this demographic information, and there was no requirement  to do so at the time of our May 2019 report.

Regarding external reporting, the UCMJ directs the Court of Appeals for  the Armed Forces, the Judge Advocates General, and the Staff Judge  Advocate to the Commandant of the Marine Corps to submit annual  reports on the military justice system to the Congressional Armed  Services Committees, the Secretary of Defense, the secretaries of the  military departments, and the Secretary of Homeland Security. These  reports are to include information on the number and status of pending cases handled in the preceding fiscal year, among other information. The  annual reports include the total number of cases each military service  handled for each type of court-martial and for nonjudicial punishments.  However, prior to our review, these annual reports did not include  demographic information about servicemembers who experienced a  military justice action, such as breakdowns by race, because the reporting  requirement did not direct the military services to include such  information.

Recommendation to require military services to include data about  race and ethnicity in annual reports about military justice actions. In  our May 2019 report, we recommended that the Joint Service Committee  on Military Justice, which is responsible for reviewing the UCMJ annually,  consider an amendment to the UCMJ’s annual military justice reporting  requirements to require the military services to include demographic  information, including race and ethnicity, for all types of courts-martial.  DOD concurred with this recommendation.

According to a memorandum from the Joint Service Committee on  Military Justice, in September 2019 the committee proposed an action  item as part of its annual review. Specifically, the committee was  considering an amendment to the UCMJ’s annual military justice reporting  requirements to require the military services to include demographic  information, including race and ethnicity, for all types of courts-martial.  However, in December 2019, the National Defense Authorization Act for  Fiscal Year 2020 included a provision directing the Secretary of Defense  to include data on race, ethnicity, and gender in the annual military justice  reports. We believe that this statutory change meets the intent of our  recommendation. By requiring the military services to report this  information, servicemembers and the public will have greater visibility into  potential disparities, which will help build confidence that DOD is  committed to a military justice system that is fair and just.

DOD Has Not Identified When Disparities Should Be Examined Further

DOD has not issued guidance that establishes criteria to specify when  any data indicating possible racial or ethnic disparities in the  investigations, trials, or outcomes of cases in the military justice system  should be further reviewed, and to describe what steps should be taken to  conduct such a review if it were needed. While equal employment  opportunity enforcement is a very different context than the military justice  system, other federal agencies have developed such criteria in the equal  employment opportunity context that can indicate when disparities should  be examined further. For example, the Department of Justice, the  Department of Labor, the Equal Employment Opportunity Commission,  and the Office of Personnel Management use a “four-fifths” test to  determine when differences between subgroups in the selection rates for  hiring, promotion, or other employment decisions are significant. These  criteria, though inexact, provide an example of the type of criteria that  DOD could consider using as a basis for determining when disparities  among racial groups in the military justice process could require further  review or analysis.

Recommendation to issue guidance to establish criteria that  determines when racial and ethnic disparities should be reviewed. In  our May 2019 report, we recommended that the Secretary of Defense, in  collaboration with the Secretaries of the military departments and the  Secretary of Homeland Security, issue guidance that establishes criteria  to specify when data indicating possible racial, ethnic, or gender  disparities in the military justice process should be further reviewed, and  that describes the steps that should be taken to conduct such a review.  In commenting on a draft of our report, DOD partially concurred with this  recommendation, agreeing with the content, but requesting that we  modify the recommendation to direct it to more appropriate entities. That  change was made before our report was issued.

In October 2019, DOD officials said that the department was exploring the  feasibility of conducting relevant research to inform implementation of this  recommendation. At that time, they estimated that this research might be  concluded in March 2021. In December 2019, the National Defense  Authorization Act for Fiscal Year 2020 included a provision directing the  Secretary of Defense to issue guidance consistent with our  recommendation. DOD was directed to commence or carry out these  activities by June 2020. We believe that issuing guidance that establishes  criteria for determining when data indicating possible racial disparities in  the investigations, trials, or outcomes of cases in the military justice  system should be further examined, and describes the steps that should  be taken to conduct such further examination, would better position DOD  and the services to monitor the military justice system to help ensure that  it is fair and just, a key principle of the UCMJ.

Racial Disparities Exist in Military Justice Investigations, Disciplinary Actions, and Case Outcomes

Racial disparities exist in investigations, disciplinary actions, and  punishment of servicemembers in the military justice system. Our  analysis of available data from fiscal years 2013 through 2017, which  controlled for attributes such as race, gender, rank, education, and years  of service, found racial disparities were more likely in actions that first  brought servicemembers into the military justice system, but we identified  fewer statistically significant racial disparities in case outcomes— convictions and punishment severity.

Black and Hispanic Servicemembers Were More Likely to Be Subjects of Recorded Investigations and Tried in General and Special Courts-Martial

Black and Hispanic servicemembers were more likely than White  servicemembers to be the subjects of recorded investigations in all of the  military services, and were more likely to be tried in general and special  courts-martial in the Army, the Navy, the Marine Corps, and the Air Force,  as shown in figure 2 below. We could not analyze Coast Guard cases due  to the small number of general and special courts-martial adjudicated in  the Coast Guard from fiscal years 2013 through 2017.

When separating general and special court-martial cases into those that  either were or were not preceded by an investigation recorded in an  MCIO database, we found fewer statistically significant racial disparities in  most of the military services in general and special courts-martial that  were preceded by a recorded investigation. However, as shown in figure  3 below, statistically significant racial disparities were also present in  general and special courts-martial that did not follow a recorded  investigation in all military services included in this analysis, which would  include cases where the investigation was performed by the  servicemember’s command.

Specifically, as shown in figure 3 above, we found that:  General and special courts-martial following a recorded  investigation. Black, Hispanic, and servicemembers in the Other race  category in the Army, and Hispanic servicemembers in the Marine Corps  were more likely than White servicemembers to be tried in general and  special courts-martial following a recorded investigation, after controlling  for other attributes. We generally found fewer statistically significant  differences compared to the results of our analyses for all special and  general courts martial.

General and special courts-martial without a recorded investigation.  Black servicemembers in all of the military services were more likely than  White servicemembers to be tried in general and special courts-martial  without a recorded investigation after controlling for other attributes.  These differences were consistent with the differences we identified for  general and special courts-martial overall, as shown in figure 2 above.  Hispanic servicemembers in the Army were more likely than White  servicemembers to be tried in general and special courts-martial without a  recorded investigation, but we found no statistically significant differences  in the likelihood of Hispanic servicemembers to be tried in general and  special courts-martial without a recorded investigation in the Marine  Corps, the Navy, or the Air Force.

Black Servicemembers Were More Likely to Be Subject to Summary Courts-Martial and Nonjudicial Punishment in the Air Force and Marine Corps, and the Other Services Lack Data

Black servicemembers were more likely than White servicemembers to  be tried in summary courts-martial and to be subjects of nonjudicial  punishment in the Air Force and the Marine Corps, as shown in figure 4.  The Army and the Navy did not maintain complete summary court-martial  or nonjudicial punishment data, and the Coast Guard had too few  summary courts-martial for us to analyze, and did not maintain complete  nonjudicial punishment data.

We could not determine whether disparities existed among  servicemembers tried in summary courts-martial or subject to nonjudicial  punishments in the Army and the Navy because the Army and the Navy  did not collect complete summary courts-martial or nonjudicial  punishment data in their investigations, military justice, or personnel  databases. Specifically, as part of our data reliability checks, we identified  the total number of summary courts-martial that the Army and the Navy  reported in the Court of Appeals for the Armed Forces annual reports for  fiscal years 2013 through 2017, and compared these totals to the number  of cases we identified in their military justice databases. While our  comparisons are not exact, due to differences in the dates we used to  count the number of cases, we found that approximately 60 percent of the  Army’s reported summary courts-martial cases and less than 50 percent  of the Navy’s reported summary courts-martial cases were included in  their military justice databases.

The absence of complete summary court-martial data in the military  justice databases of the Army and the Navy limits these services’ visibility  into any disparities that may exist among servicemembers involved in  these types of military justice proceedings. On December 17, 2018, the  General Counsel of the Department of Defense issued the uniform  standards and criteria required by article 140a of the Military Justice Act  of 2016. As part of these uniform standards, the military services were  directed to collect certain information about all cases in their military justice databases, which a DOD official said includes summary court- martial cases. The DOD General Counsel directed that military services  are to implement the Secretary’s direction no later than December 23,  2020.

Similarly, we identified the total number of nonjudicial punishments that  the Army, the Navy, and the Coast Guard reported in the Court of  Appeals for the Armed Forces annual reports for fiscal years 2013  through 2017, and compared these totals to the number of cases we  identified in their military justice and personnel databases. As shown in  figure 5 below, we found that 65 percent of the Army’s reported  nonjudicial punishments, 8 percent of the Navy’s reported nonjudicial  punishments, and 82 percent of the Coast Guard’s reported nonjudicial  punishments were recorded in their military justice databases.

Recommendation to include benefits and drawbacks of collecting  and maintaining complete information for nonjudicial punishment. In  our May 2019 report, we made separate recommendations to the Army,  the Navy, and the Coast Guard to consider the feasibility, to include the  benefits and drawbacks, of collecting and maintaining complete  information for all nonjudicial punishment cases in one of the military  service’s databases, such as information on the servicemembers’ race,  ethnicity, gender, offense, and punishment imposed. DOD and DHS  concurred with these recommendations. As of October 2019, Army and  Navy officials said that they were developing the capability to collect data  on race, ethnicity, gender, offense and punishment imposed for  nonjudicial punishments. They expected to complete this action in  December 2020. As of May 2019, the Coast Guard stated that it would  consider the feasibility of collecting and maintaining complete information  for all nonjudicial punishments cases through a military justice and  personnel work group. The estimated completion date for this action had  not been determined at that time.

Few Statistically Significant Racial Disparities Exist in Likelihood of Conviction or Severity of Punishment, but the Coast Guard Does Not Collect and Maintain Complete Data

We identified fewer statistically significant racial disparities in case  outcomes—convictions and punishment severity. Among the  servicemembers convicted in general and special courts-martials, we  found no statistically significant differences regarding the likelihood of  conviction among racial groups in the Army, the Navy, the Marine Corps,  and the Air Force, while controlling for other attributes, as shown in figure  6 below.

In the military services that maintained complete punishment data—the  Army, the Navy, the Marine Corps, and the Air Force—we found that  minority servicemembers were either less likely to receive a more severe  punishment in general and special courts-martial compared to White  servicemembers, or there were no statistically significant differences in  punishments among racial groups. Specifically, as shown in figure 7,  Black servicemembers were less likely to receive a more severe  punishment in general and special courts-martial compared to White  servicemembers in the Navy, but there was no statistically significant  difference for Black servicemembers in the Marine Corps, the Army, and  the Air Force. Additionally, there were no statistically significant  differences for Hispanic servicemembers in the Navy, the Marine Corps,  the Army, or the Air Force.

We could not determine disparities in case outcomes—convictions and  punishment severity—in the Coast Guard’s general and special courts- martial for fiscal years 2013 through 2017 because the Coast Guard did  not collect and maintain complete conviction and punishment data in its  military justice database. Specifically, 16 percent of all Coast Guard  cases were missing conviction and punishment data. When broken down  by court-martial type, 20 percent of general court-martial cases, 15  percent of special court-martial cases, and 4 percent of summary court- martial cases were missing conviction and punishment data. Coast Guard  officials acknowledged that incomplete conviction and punishment data  entry is a consistent problem. They said that data entry had improved  recently. On December 17, 2018, the General Counsel of the Department  of Defense issued the uniform standards and criteria required by article  140a of the Military Justice Act of 2016. As part of these uniform  standards, the military services were directed to collect information about  the findings for each offense charged, and the sentence or punishment  imposed. The DOD General Counsel directed that the military services  are to implement the Secretary’s direction no later than December 23,  2020.

DOD and the Military Services Have Conducted Some Assessments of Military Justice Disparities, but Have Not Studied the Causes of Disparities

DOD and the military services have taken some steps to study racial  disparities in the military justice system over the last several decades, but  they have not comprehensively studied the causes of any disparities. We  previously reported in 1995 on DOD studies on discrimination and equal  opportunity, and found DOD and the military services conducted seven  reviews of racial disparities in discipline rates between 1974 and 1993.  Since our 1995 report through 2016, DOD and military service  assessments of military justice disparities have been limited. Officials in  the Office of Diversity, Equity and Inclusion noted DOD has not  conducted any department-wide assessments of racial disparities in  military justice during this period. The military services’ diversity offices  also were not able to identify any service-specific reviews of disparities in  military justice.

However, DOD has conducted climate surveys to address  servicemembers’ perceptions of bias. In addition, the military services  have some initiatives to examine and address disparities in military  justice. For example, the Air Force routinely analyzes military justice data  using a rates-per-thousand analysis to identify whether certain  demographic groups are tried by courts-martial or subject to nonjudicial  punishments at higher rates than others. These Air Force analyses  found that Black servicemembers were more likely than White  servicemembers to be subject to courts-martial and nonjudicial  punishments from fiscal years 2013 through 2017, which is consistent  with what we found. However, the other services do not routinely  conduct such analyses.

Officials from DOD and the military services acknowledged that they do  not know the cause of the racial disparities that have been identified in  the military justice system. This is because they have not conducted a  comprehensive evaluation to identify potential causes of these disparities  and make recommendations about any appropriate corrective actions to  remediate the cause(s) of the disparities.

Recommendation to identify causes of racial disparities in the  military justice system. In our May 2019 report, we recommended that  the Secretary of Defense, in collaboration with the Secretaries of the  military services and the Secretary of Homeland Security, conduct an  evaluation to identify the causes of any disparities in the military justice  system, and take steps to address the causes of these disparities as  appropriate. DOD partially concurred with this recommendation, agreeing  with the content, but requesting that we modify the recommendation to  direct it to more appropriate entities. We made that change before the  report was issued.

In October 2019, DOD officials said that the department was exploring the  feasibility of conducting a research project to delve into the differences in  military justice data to inform implementation of this recommendation. At  that time, they estimated that this research might be concluded in March  2021. In December 2019, the National Defense Authorization Act for  Fiscal Year 2020 included a provision directing the Secretary of Defense  to conduct an evaluation consistent with our recommendation. DOD was  directed to commence or carry out these activities by June 2020. We  believe that conducting a comprehensive analysis into the causes of  disparities in the military justice system, would better position DOD and  the military services to identify actions to address disparities, and thus  help ensure that the military justice system is fair and just, a key principle  of the UCMJ.

In conclusion, our analysis of available data identified racial disparities in  all of the military services for servicemembers with recorded  investigations, and for four of the military services for trials in special and  general courts-martial, but these disparities generally were not present in  the convictions or punishments of cases. These findings show an  association for disparities at particular stages of the military justice  process, but are inconclusive regarding other stages for the period  covered by our analysis. However, our findings of racial disparities, taken  alone, do not establish whether unlawful discrimination has occurred, as  that is a legal determination that would involve other corroborating  information along with supporting statistics. The absence of complete  nonjudicial punishment data in the Army, the Navy, and the Coast Guard  limits their visibility into the vast majority of legal punishments imposed on  servicemembers under the UCMJ every year. Without such data, these  three military services will remain limited in their ability to assess or  identify disparities among populations subject to this type of punishment.

Our May 2019 report included several recommendations with specific  actions that can be taken to better position DOD and the military services  to identify and address disparities, such as (1) developing the capability to  present race and ethnicity data from the military services’ personnel and  investigations databases using the same categories as the military justice  databases; (2) establishing criteria to determine when possible disparities  among racial or ethnic groups should be further reviewed, and describing  the steps that should be taken in such a review; and, importantly, (3)  conducting a comprehensive evaluation of the causes of these disparities  and taking steps to address them. To help build confidence that DOD is  committed to a military justice system that is fair and just, and for the  system of military law to be recognized as fair and just by both members  of the armed forces and by the American public, DOD and the military  services need to take actions to address these recommendations.

Madam Chairwoman Speier, Ranking Member Kelly, and Members of the  Subcommittee, this completes my prepared statement. I would be  pleased to respond to any questions that you or other Members of the  Subcommittee may have at this time.

If you or your staff have any questions about this testimony, please  contact Brenda S. Farrell, Director, Defense Capabilities and  Management, who may be reached at (202) 512-3604 or  farrellb@gao.gov. In addition, contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this statement. GAO staff who made key contributions to this testimony  are Kimberly C. Seay, Assistant Director; Christopher Allison; Renee S.  Brown; Vincent M. Buquicchio; Christopher Gezon; Won (Danny) Lee;  Serena C. Lo; Dae B. Park; Samuel J. Portnow; and Clarice Ransom.

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We testified about our report on whether there are racial or ethnic disparities in the military justice system and responses to that report’s recommendations.

In all military services Blacks and Hispanics were more likely than Whites to be tried in a court-martial proceeding

Race was not a statistically significant factor for a conviction

The military services do not record information on race and ethnicity the same way, making it difficult to identify disparities

Defense and Homeland Security have made progress on some of our 11 recommendations. However, work remains to address the causes of disparities.