Military Justice:

DOD and the Coast Guard Need to Improve Their Capabilities to Assess Racial and Gender Disparities

GAO-19-344: Published: May 30, 2019. Publicly Released: May 30, 2019.

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We assessed whether there are racial or gender disparities in the military justice system.

Among other things, we found

Blacks, Hispanics, and males were more likely than Whites or females to be tried in general and special courts-martial in all military services

Race was not a statistically significant factor in the likelihood of conviction in general and special courts-martial

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

We made 11 recommendations, including that DOD evaluate and take steps to address the causes of disparities in the military justice system.

Likelihood of Trial in General and Special Courts-Martial by Race and Gender, After Controlling for Rank and Education, Fiscal Years 2013-2017

Figure showing likelihood of trial in general and special courts-martial by race and gender

Figure showing likelihood of trial in general and special courts-martial by race and gender

Additional Materials:

Contact:

Brenda S. Farrell
(202) 512-3604
farrellb@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

What GAO Found

The military services collect gender information, but they do not collect and maintain consistent information about race and ethnicity in their investigations, military justice, and personnel databases. This limits their ability to collectively or comparatively assess these data to identify any disparities (i.e., instances in which a racial, ethnic, or gender group was overrepresented) in the military justice system within and across the services. For example, the number of potential responses for race and ethnicity across the military services' databases ranges from five to 32 options for race and two to 25 options for ethnicity, which can complicate cross-service assessments. The services also are not required to and, thus, do not report demographic information in their annual military justice reports—information that would provide greater visibility into potential disparities.

GAO's analysis of available data found that Black, Hispanic, and male servicemembers were more likely than White or female members to be the subjects of investigations recorded in databases used by the military criminal investigative organizations, and to be tried in general and special courts-martial in all of the military services when controlling for attributes such as rank and education. GAO also found that race and gender were not statistically significant factors in the likelihood of conviction in general and special courts-martial for most services, and minority servicemembers were either less likely to receive a more severe punishment than White servicemembers or there was no difference among racial groups; thus, disparities may be limited to particular stages of the process. The Department of Defense (DOD) has taken some steps to study disparities, but has not comprehensively evaluated the causes of racial or gender disparities in the military justice system. Doing so would better position DOD to identify actions to address disparities and help ensure the military justice system is fair and just.

Likelihood that Servicemembers Were Subjects of Recorded Investigations and Tried in General and Special Courts-Martial, Fiscal Years 2013-2017

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Note: These analyses, taken alone, should not be used to make conclusions about the presence or absence of unlawful discrimination. These multivariate regression analysis results estimate whether a racial or gender 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 all gender comparisons to females. GAO grouped individuals of Hispanic ethnicity together, regardless of race.

Why GAO Did This Study

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.

House Report 115-200, accompanying a bill for the National Defense Authorization Act for Fiscal Year 2018, included a provision for GAO to assess the extent that disparities may exist in the military justice system. This report assesses the extent to which (1) the military services collect and maintain consistent race, ethnicity, and gender information for servicemembers investigated and disciplined for UCMJ violations that can be used to assess disparities, and (2) there are racial and gender disparities in the military justice system, and whether disparities have been studied by DOD. 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.

What GAO Recommends

GAO is making 11 recommendations, including that the services develop the capability to present consistent race and ethnicity data, and DOD include demographic information in military justice annual reports and evaluates the causes of disparities in the military justice system. DOD and the Coast Guard generally concurred with GAO's recommendations.

For more information, contact Brenda S. Farrell at (202) 512-3604 or farrellb@gao.gov.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: DHS concurred with this recommendation. As of October 2019, the Coast Guard has implemented modifications to its military justice database so that it now supports queries and reporting for gender information. Specifically, the Coast Guard has now made gender a required field in Law Manager, and gender now appears as a field on Law Manager's search screen. Coast Guard officials said that by making gender a mandatory entry field, it will allow for queries and reporting on gender information. By implementing our recommendation, the Coast Guard will have more readily available data to identify or assess any gender disparities that may exist in the investigation and trial of military justice cases.

    Recommendation: The Secretary of Homeland Security should ensure that the Commandant of the Coast Guard modifies the Coast Guard's military justice database so that it can query and report on gender information. (Recommendation 1)

    Agency Affected: Department of Homeland Security

  2. Status: Open

    Comments: DOD concurred with this recommendation. In October 2019, Army officials said that the Army was working to implement the uniform standards for race and ethnicity and the ability to aggregate the data, in accordance with the criteria established by the General Counsel of the Department of Defense on December 17, 2018. They expected to implement these categories in December 2020.

    Recommendation: The Secretary of the Army should develop the capability to present servicemembers' race and ethnicity data in its investigations and personnel databases using the same categories of race and ethnicity established in the December 2018 uniform standards for the military justice databases, either by (1) modifying the Army's investigations and personnel databases to collect and maintain the data in accordance with the uniform standards, (2) developing the capability to aggregate the data into the race and ethnicity categories included in the uniform standards, or (3) implementing another method identified by the Army. (Recommendation 2)

    Agency Affected: Department of Defense: Department of the Army

  3. Status: Open

    Comments: DOD concurred with this recommendation. In October 2019, Air Force officials said that the Air Force was working to implement uniform standards for collection of military justice data and records in accordance with the criteria established by the General Counsel of the Department of Defense on December 17, 2018. They expected to implement these standards in December 2020.

    Recommendation: The Secretary of the Air Force should develop the capability to present servicemembers' race and ethnicity data in its investigations and personnel databases using the same categories of race and ethnicity established in the December 2018 uniform standards for the military justice databases, either by (1) modifying the Air Force's investigations and personnel databases to collect and maintain the data in accordance with the uniform standards, (2) developing the capability to aggregate the data into the race and ethnicity categories included in the uniform standards, or (3) implementing another method identified by the Air Force. (Recommendation 3)

    Agency Affected: Department of Defense: Department of the Air Force

  4. Status: Open

    Comments: DOD concurred with this recommendation. In October 2019, Navy officials said that the Navy was working to implement the uniform standards for race and ethnicity in their new case management system which was currently under development, and may implement changes to interface with Navy investigations and personnel databases. They expected to implement these changes in December 2020.

    Recommendation: The Secretary of the Navy should develop the capability to present servicemembers' race and ethnicity data in its investigations and personnel databases using the same categories of race and ethnicity established in the December 2018 uniform standards for the military justice databases, either by (1) modifying the Navy's investigations and personnel databases to collect and maintain the data in accordance with the uniform standards, (2) developing the capability to aggregate the data into the race and ethnicity categories included in the uniform standards, or (3) implementing another method identified by the Navy. (Recommendation 4)

    Agency Affected: Department of Defense: Department of the Navy

  5. Status: Open

    Comments: DHS concurred with this recommendation. In May 2019, the Coast Guard stated that it would implement modifications to the Coast Guard's military justice database to support the tracking of race, ethnicity and gender information as part of a longer term initiative to capture all of the data elements required by the uniform standard adopted by the Department of Defense. They estimated this would be completed in September 2020.

    Recommendation: The Secretary of Homeland Security should ensure that the Commandant of the Coast Guard develops the capability to present servicemembers' race and ethnicity data in its investigations and personnel databases using the same categories of race and ethnicity established in the December 2018 uniform standards for the military justice databases, either by (1) modifying the Coast Guard's investigations and personnel databases to collect and maintain the data in accordance with the uniform standards, (2) developing the capability to aggregate the data into the race and ethnicity categories included in the uniform standards, or (3) implementing another method identified by the Coast Guard. (Recommendation 5)

    Agency Affected: Department of Homeland Security

  6. Status: Closed - Implemented

    Comments: DOD concurred with this recommendation. In September 2019, DOD's Joint Service Committee on Military Justice 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, ethnicity, and gender, for all types of courts-martial. However, a committee official noted that the conference report accompanying the bill for the National Defense Authorization Act for Fiscal Year 2020 included a provision directing the Secretary of Defense to include such information in the annual military justice reports, and stated that if the provision was enacted, the committee would consider that responsive to GAO's recommendation and would not further study the matter. In December 2019, the National Defense Authorization Act for Fiscal Year 2020 became public law 116-92. The law included a provision directing the Secretary of Defense to include data on race, ethnicity, and gender in the annual military justice reports. This statutory change meets the intent of our recommendation, because by DOD reporting 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.

    Recommendation: The Secretary of Defense should ensure that the Joint Service Committee on Military Justice, in its annual review of the UCMJ, considers an amendment to the UCMJ's annual military justice reporting requirements to require the military services to include demographic information, including race, ethnicity, and gender, for all types of courts-martial. (Recommendation 6)

    Agency Affected: Department of Defense

  7. Status: Open

    Comments: 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 the 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. They said that this research will explore differences in military justice data, seek to identify potential factors that contribute to observed racial/ethnic disparities, and develop standardized tracking elements so trends can be monitored across DOD. They estimated that this research may be concluded in March 2021.

    Recommendation: The Secretary of Defense, in collaboration with the Secretaries of the military services and the Secretary of Homeland Security, should 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. (Recommendation 7)

    Agency Affected: Department of Defense

  8. Status: Open

    Comments: DOD concurred with this recommendation. In October 2019, Army officials said that the Army was developing the capability to collect data of race, ethnicity, gender, offense and punishment imposed for nonjudicial punishments in accordance with the criteria established by the General Counsel of the Department of Defense on December 17, 2018. They expected to complete this action in December 2020.

    Recommendation: The Secretary of the Army should consider the feasibility, to include the benefits and drawbacks, of collecting and maintaining complete information for all nonjudicial punishment cases in one of the Army's databases, such as information on the servicemembers' race, ethnicity, gender, offense, and punishment imposed. (Recommendation 8)

    Agency Affected: Department of Defense: Department of the Army

  9. Status: Open

    Comments: DOD concurred with this recommendation. In October 2019, Navy officials said that the Navy was refining its processes to standardize the documentation and reporting requirements of all nonjudicial punishment cases. They further stated that the Marine Corps currently has the ability to capture this information, but in two different systems that could be extracted and assimilated with any system as required. They expected to implement these changes in December 2020.

    Recommendation: The Secretary of the Navy should consider the feasibility, to include the benefits and drawbacks, of collecting and maintaining complete information for all nonjudicial punishment cases in one of the Navy's databases, such as information on the servicemembers' race, ethnicity, gender, offense, and punishment imposed. (Recommendation 9)

    Agency Affected: Department of Defense: Department of the Navy

  10. Status: Open

    Comments: DHS concurred with this recommendation. In May 2019, the Coast Guard stated that it would consider the feasibility of collecting and maintain complete information for all nonjudicial punishments cases through a military justice and personnel work group. The estimated completion date for this action was not yet determined.

    Recommendation: The Secretary of Homeland Security should ensure that the Commandant of the Coast Guard considers the feasibility, to include the benefits and drawbacks, of collecting and maintaining complete information for all nonjudicial punishment cases in one of the Coast Guard's databases, such as information on the servicemembers' race, ethnicity, gender, offense, and punishment imposed. (Recommendation 10)

    Agency Affected: Department of Homeland Security

  11. Status: Open

    Comments: 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. They said that this research will explore differences in military justice data, seek to identify potential factors that contribute to observed racial/ethnic disparities, identify potential disparity indicators, and develop standardized tracking elements so trends can be monitored across DOD. They estimated that this research may be concluded in March 2021.

    Recommendation: The Secretary of Defense, in collaboration with the Secretaries of the military services and the Secretary of Homeland Security, should 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. (Recommendation 11)

    Agency Affected: Department of Defense

 

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