Gov. Eric Holcomb and Maj. Gen. Dale Lyles, head of the Indiana National Guard, discuss details of Afghan evacuees coming to Camp Atterbury in September 2021. (Brandon Smith/IPB News)
A bill making it easier to court-martial and administratively punish Indiana National Guard troops is one step away from becoming law despite debate that has divided military advocacy groups and lawmakers on both sides of the aisle.
The Senate passed House Bill 1076 on Thursday, sending the bill to the governor's desk where he can sign it into law, veto it or let it become law without his signature.
The core controversy surrounds a provision that would take away service members' right to request a court-martial to dispute lower-level non-judicial punishments, also called Article 15s. Some, including the Indiana chapter of the American Legion, oppose that part of the bill because they say it strips service members of their due process rights.
“There is still some due process, it just doesn't look like a court martial. And so I'm not sure that the best way to use the resources is to have a lot of court martials on those small things,” said Senate President Pro Tem Rodric Bray, who supports the bill.
The Senate passed an identical version of the bill during the first half of the legislative session, but the House version is the first to make it through both Chambers. The first time the Senate passed the bill, votes fell along party lines with all nine present Democrats voting against and all Republicans voting for.
This time opposition grew slightly with five Republicans joining eight Democrats in voting against. The final vote was 34-13, with two Democrats and one Republican absent.
Sen. Jim Buck (R-Kokomo) was one of the GOP members who voted not to pass it. Earlier this week, he also voted in favor of a Democrat amendment that would have put troops’ right to request a court-martial back into the bill.
“The first time when [the bill] passed out of the Senate, I voted for it,” Buck said. “But since that time, I've had a lot of conversations with people back home, and those that I trust that are lawyers … I'm going to vote for the amendment. Because I think not to vote for it, I may do harm to those men and women [of the National Guard].”
That amendment failed, as identical amendments had twice before in both chambers.
There are two provisions in this bill that have not been controversial, for the most part. The first would give the adjutant general, the state Guard's governor-appointed leader, the ability to convene a general court-martial. In current law, that power is limited to the governor.
The second uncontroversial provision removed the ability for commanders to confine people in a local jail for up to eight days as a disciplinary punishment for lower-level offenses.
“I’m a retired police officer and when I was in the National Guard that was one of my jobs on weekends was to go around and get AWOL people and put them into the county jails,” said Mark Gullion, legislative chairman for the Indiana American Legion, in an interview. “It was in downtown Indianapolis and a lot of times, kids that couldn't couldn't afford to leave their job or couldn't afford to get the drill. “
That was 20 years ago, Gullion said, adding that he’s “glad” that punishment won’t be an option anymore under this bill.
“But without the right of the soldier to ask for court martial, we have a problem with that,” he said. “We feel that that's a violation of the due process of law.”
The bill's supporters argue that due process is not being lost by removing troops' right to request a court-martial because HB1076 removes that confinement option.
“So a guard member no longer is subject to having eight days of their freedom taken,” said Sen. Aaron Freeman (R-Indianapolis), the bill’s Senate sponsor, in January. “The trade-off of that is where you would then say, ‘you can no longer ask for a court-martial on these low-level issues.’ We're not talking sexual assault, sexual harassment, murder, rape, some big issue that's still going to be a court-martial. All we're doing is saying you no longer have the right to request a court martial in these situations where you're showing up to drill several times late.”
The bill’s supporters also argue the administrative system that allows service members to appeal an Article 15 outside of a court-martial is sufficient.
“You have the right to consult a lawyer, have witnesses, have someone in your unit speak for you, appeal the judgment, a lot more, I think, than any other employer probably would give,” Rep. Chris Jeter (R-Indianapolis), the bill’s author and a former military lawyer, said in January. “The service members in the military are given more due process at more levels than any system on the planet. And that's something we should all be very proud of.”
People who oppose the bill, like Destiny Wells, argue that the remaining punishments, like extra duties and reduction in pay or rank, can still be severe. Wells is U.S. Army veteran, attorney and former Democratic secretary of state candidate.
“An employer can't take away your pay, an employer can't make you stay after work and clean a bathroom. That is just a false equivalency if there ever was one,” she said, responding to Jeter’s comment in a recent interview. “I've had 20 years of service. I have seen a bevy of disciplinary actions. I have seen them at their best, and I have seen them at their worst. And I think that we always have to prepare ourselves for the worst because we owe that to soldiers and service members.”
And Guard officials say that the option to convene a court-martial gets in the way of their ability to maintain order and discipline over things like showing up to post on time.
“As a practical matter, these soldiers know if they refuse an Article 15 and demand a court martial that we aren’t going to give it a court-martial, we're not going to spend the time and the taxpayer money to conduct a court martial for someone who was late coming back to post,” said Tim Baldwin, National Guard colonel and staff judge advocate, in committee testimony on the bill. “They either get almost nothing, a memorandum of reprimand, or we go to separation procedures and they’re out of the National Guard, which we don't want.”
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Uncertain numbers
Throughout testimony and debate on these bills, lawmakers have been consistently asking the Guard and bill sponsors how many Article 15’s have been issued to service members and how often a court martial has been requested in the face of those punishments.
“I have no idea. I don't have any data,” said Senator Freeman Thursday. “And I don't want to know that. How a commander disciplines his troops or her troops, I don't think is the purview of me or this Senate, to be honest.”
In January, a spokesperson for the Guard told Indiana Public Broadcasting that there were no records of any Article 15s being issued at the state level because those “punishments are handled by the commanders at company level” and records were kept at that level.
Then, in early March, the spokesperson said their previous statement was incorrect.
“We were still tabulating those, trying to get them, and there were approximately a dozen in calendar year 2022,” the spokesperson said in an email.
When asked whether that number is definitive, the spokesperson confirmed it is possible that there are still some companies whose records haven't been counted at the state level yet.
Less than a week later, another spokesperson said there have been seven Article 15s issued "since 2022."
They declined a request to clarify whether that number is more definitive than the last or to clarify whether “since 2022” meant in calendar year 2022 or in the few months since 2022 ended.
The Guard spokesperson’s statement also said that commanders are “not pursuing Article 15s because Guardsmen exercise their right to refuse non-judicial punishment. When a Guardsman refuses non-judicial punishment, it drives the convening of a court martial.”
It's not clear if that means there have been cases in which National Guard troops have requested a court-martial when faced with an Article 15. Previous testimony from Guard officials suggested there have been no such requests.
Maj. Gen. Dale Lyles told lawmakers in his most recent testimony on the bill that there have been no requests to his knowledge.
In response, Sen. Andrea Hunley (D-Indianapolis) asked, “so then by taking away what our rank and file guards members do view as a right, I'm wondering what administrative problem we're actually solving if no one is requesting them right now?”
“The potential for a problem,” Lyles said. “So I could see trial defense, because they can get trial defense for minor offenses, Article 15-related. And then the trial defense attorneys, no offense to the attorneys, would seek to push that through a court martial process, elongate the process and not allow us to use timely justice. So the potential is the risk.”
The spokesperson also declined a request to clarify whether the statement to Indiana Public Broadcasting means there actually have been cases despite such testimony.
“I'd like to see data supporting that it truly is an issue,” Hunley said on the Senate floor regarding Lyles’ testimony. “And then if we need to come back next year and make this adjustment, do it. But for right now, there is no data to support the need for removing this.”
Indiana Public Broadcasting's Brandon Smith contributed to this story.
Adam is our labor and employment reporter. Contact him at arayes@wvpe.org or follow him on Twitter at @arayesIPB.
