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.
Fast Facts
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
Highlights
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
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.
Recommendations
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.
Recommendations for Executive Action
| Agency Affected Sort descending | Recommendation | Status |
|---|---|---|
| Department of Defense |
Priority Rec.
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) |
Open
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. DOD's Office for Diversity, Equity and Inclusion (ODEI) contracted with a federally funded research and development center to conduct a study, which ODEI officials said was completed in July 2022. According to ODEI officials, the multidisciplinary study team used a combination of qualitative and quantitative research methods to develop a comprehensive picture of military justice outcomes and make recommendations for data collection and policy formulation. ODEI officials said that they plan to use the findings and recommendations from this study to identify the causes of any disparities and steps to take to address those causes, as noted in our recommendation. As of August 2023, ODEI officials told us that the Secretaries of the military departments expect to collaborate with the Department of Homeland Security to explore solutions to these disparities by June 2025. To fully implement GAO's recommendation, DOD should use the results of the study to take actions to address the causes of any disparities in the military justice system that have been identified, so that DOD, DHS, and the military services can help ensure that the military justice system is fair and just.
|
| Department of Defense | 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) |
Closed – Implemented
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.
|
| Department of Defense | 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) |
Open
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. As of March 2022, DOD has not issued guidance that would address this recommendation. Officials from DOD's Office for Diversity, Equity and Inclusion (ODEI) said that they have been approved for funding to have the Center for Naval Analyses, a nonprofit research and analysis organization, conduct a study to further identify disparities in the military justice system. ODEI officials said that they plan to use the findings and recommendations from this study to develop criteria and steps that will be taken to conduct a review on disparities, as described in our recommendation. ODEI officials told us that the study was completed in July 2022. As of August 2023, DOD officials said that they are reviewing and analyzing the results of this study, and plan to use it along with other available data to develop appropriate policies on racial, ethnic, and gender disparities in the military justice system by May 2024. To fully implement this recommendation, DOD needs to use the results of its study to establish criteria specifying when data indicating possible racial, ethnic, or gender disparities in the military justice process should be further reviewed, and issue guidance specifying this criteria and the steps that should be taken to conduct such a review, so that DOD and the military services are better positioned to monitor the military justice system and help ensure that it is fair and just.
|
| Department of Homeland Security | 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) |
Closed – Implemented
DHS concurred with this recommendation. The Coast Guard has now begun collecting data on nonjudicial punishment cases. Specifically, in January 2021, the Coast Guard issued guidance, which provided that nonjudicial punishment results should be entered into the Coast Guard's personnel database, except when the charges are dismissed or dismissed with a warning. The Coast Guard currently collects nonjudicial punishment data, including offender race, ethnicity, and gender data, as well as punishment imposed. The decision to begin collecting this data shows that the Secretary of Homeland Security and Commandant of the Coast Guard considered the feasibility of collecting and maintaining complete information for all nonjudicial punishment cases, and determined that is was feasible to collect the aforementioned categories of data, and ordered that this data be collected. By implementing our recommendation, the Coast Guard will improve its ability to assess or identify disparities among populations subject to this type of punishment.
|
| Department of Homeland Security | 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) |
Closed – Implemented
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.
|
| Department of Homeland Security | 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) |
Closed – Implemented
DHS concurred with this recommendation. In April 2021, Coast Guard officials provided us with documentation demonstrating the service's updated capabilities to present race and ethnicity data from its investigations and personnel databases in a manner consistent with the 2018 uniform standards. Specifically, race and ethnicity are collected in separate fields in the Coast Guard's investigations database, and the categories currently used for both fields are consistent with the standards. Coast Guard officials told us that the Coast Guard modified the race and ethnicity categories in its investigations database to align with the standards. In its personnel database, the Coast Guard collects race and ethnicity data using the combined categories of race and ethnicity permitted by the uniform standards, and the combined race and ethnicity categories currently used in the Coast Guard's personnel database are consistent with the standards. While the format for presenting the data differs between the personnel and investigations databases, both options are consistent with the uniform standards and, thus, meet the intent of our recommendation. By implementing our recommendation, the Coast Guard will be able to more efficiently analyze consistent demographic data.
|
| Department of the Air Force | 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) |
Closed – Implemented
DOD concurred with this recommendation. As of February 2024, the Air Force has now developed the capability to present race and ethnicity data in its personnel and investigations databases consistent with the 2018 uniform standards. The Air Force uses more values than those required by the standards to collect and maintain race and ethnicity information in its personnel database but has developed the capability to aggregate race and ethnicity information into the categories specified in the standards. The Air Force has also completed the development of a new case management system that will replace its existing investigations database, which now has the capability to present data in accordance with the uniform standards. These actions meet the intent of our recommendation.
|
| Department of the Army | 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) |
Closed – Implemented
DOD concurred with this recommendation. As of June 2021, the Army has developed the capability to present race and ethnicity data in its personnel and investigations databases in a manner consistent with the 2018 uniform standards for military justice databases. In July 2019, in response to our recommendation, the Army updated the race and ethnicity categories in its investigations database to conform to the uniform standards. For example, the Army changed the race category for "American Indian" to "American Indian or Alaska Native". As a result of this and other modifications, the Army now collects race and ethnicity data in its investigations database in the six race and two ethnicity categories, respectively, required by the uniform standards. For its personnel database, the Army uses different values than those required by the standards to collect and maintain race and ethnicity information, but has the capability to present race and ethnicity in a manner consistent with the 2018 uniform standards. For example, the Army's personnel database uses a combined "Asian/Pacific Islander" race value, although the standards call for "Asian" to be one race value and "Native Hawaiian or Other Pacific Islander" to be a separate race value. The Army developed a process to use its detailed ethnicity data to separate the Asian and Pacific Islander races by using the self-identified ethnicity values (e.g., Polynesian is categorized as Pacific Islander), in order to present the race data in accordance with the standards. Similarly, while the Army collects more categories for ethnicity than is required by the uniform standards, the Army has demonstrated its ability to aggregate ethnicity data into the required categories ("Hispanic/Latino" and "Not Hispanic/Latino"). Army officials stated that, although they have a method for aggregating their ethnicity data into the categories defined in the standards, the aggregation is conducted manually. Although this manual process may be time-consuming and labor-intensive, the Army is able to present data from its personnel database in the six race and two ethnicity categories, as required by the 2018 uniform standards. By implementing our recommendation, the Army will be able to more efficiently analyze consistent demographic data.
|
| Department of the Army | 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) |
Closed – Implemented
DOD concurred with this recommendation. In December 2017, the Army Deputy Judge Advocate General issued a memorandum identifying the Army's military justice database as the single tool for creating, processing, and managing nonjudicial punishments, among other things. In November 2020, the Army updated its guidance on collecting nonjudical punishment data (Army Regulation 27-10, Military Justice), to require that all nonjudicial punishments will be recorded on a form that is to be transmitted by the servicing legal office through the Army's military justice database. According to Army officials, after publication of this guidance, they expect that the Army's military justice database is now collecting 100 percent of nonjudicial punishment actions, in part because they require the use of new forms that can only be generated in the database. Collecting this data shows that the Secretary of the Army considered the feasibility of collecting and maintaining complete information for all nonjudicial punishment cases, and determined that is was feasible and ordered that the data be collected. By implementing our recommendation, the Army will gain the ability to assess or identify disparities among populations subject to this type of punishment.
|
| Department of the Navy | 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) |
Closed – Implemented
DOD concurred with this recommendation. Both the Navy and the Marine Corps have developed the capability to present consistent race and ethnicity data in their respective personnel databases, and the Navy has developed this capability in its investigations database. First, the Navy has developed the capability to present race and ethnicity data in its investigations database in a manner consistent the 2018 uniform standards for military justice databases. In June 2021, as a result of a policy update, the Navy's Naval Criminal Investigative Service, which collects investigations data for both Navy and Marine Corps cases, updated the race and ethnicity categories in its investigations database to conform to the uniform standards. For example, NCIS changed the race category for "Asian/Pacific Islander" to two separate categories-"Asian" and "Native Hawaiian or Other Pacific Islander"-to align with the standards. Second, the Navy's personnel database now has the capability to present race and ethnicity data in a manner consistent with the 2018 uniform standards. The Navy provided documentation of the race categories available in its personnel database, which are consistent with the standards. While the database collects more categories for ethnicity than is required by the uniform standards, the Navy has demonstrated its ability to aggregate ethnicity data into the required categories ("Hispanic/Latino" and "Not Hispanic/Latino"). Navy officials told us that the service implemented the requisite changes to its database in August 2020. Finally, the Marine Corps' personnel database also has the capability to present race and ethnicity in a manner consistent with the 2018 uniform standards. In March 2021, the Marine Corps provided documentation of the race categories available in its personnel database, which are consistent with the standards. Like the Navy, the Marine Corps also has multiple ethnicity categories from which to choose and is able to aggregate the data into the categories required by the uniform standards. By implementing our recommendation, the Navy will be able to more efficiently analyze consistent demographic data.
|
| Department of the Navy | 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) |
Closed – Implemented
DOD concurred with this recommendation. As of October 2020, the Navy and Marine Corps began collecting data on all nonjudicial punishment cases. Specifically, in October 2020, the Navy Judge Advocate General (JAG) issued JAG Instruction 5800.9E, which provided that all Navy and Marine Corps officers performing military justice functions must report on a quarterly basis the results of all summary courts-martial and nonjudicial punishments completed by their command. The Navy and Marine Corps collect data including offender and victim race, ethnicity, and gender data, as well as offense, and punishment imposed using an Excel form that was included in the JAG Instruction. Navy officials stated that collecting this information through Excel is an interim solution. For a permanent solution, they said that they expect to collect this information through their personnel database by October 31, 2022. Marine Corps officials stated that they expect to collect this information through their personnel database by October 31, 2021. The decision to begin collecting this data shows that the Secretary of the Navy considered the feasibility of collecting and maintaining complete information for all nonjudicial punishment cases, and determined that is was feasible and ordered that the data be collected. By implementing our recommendation, the Navy and the Marine Corps will gain the ability to assess or identify disparities among populations subject to this type of punishment.
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