In light of the responses to the recent Task and Purpose article, I thought a look at court-martial numbers and experience in the Air Force might be appropriate. The data comes from the annual reports available on the CAAF website and on the Joint Service Committee on Military Justice’s website and my review of official biographies.
Over the last three decades, the number of courts-martial in the Air Force has dropped significantly, as has the conviction rate. In FY90, the Air Force tried 844 GCMs and 636 SPCMs for a total of 1480 courts. The conviction rate for GCMs was 93.4%. In FY17, the Air Force tried 159 GCMs and 231 SPCMS for a total of 390. The conviction rate for GCMs was 70.5%. In FY18 the Air Force tried 177 GCMs and 213 SPCMs for a total of 390. The conviction rate for GCMs was 67.3%. In FY19 the Air Force tried 217 GCMs and 198 SPCMs for a total of 415 courts. The conviction rate for GCMs was 70.6%.
As a result of the reduction in courts-martial, litigation opportunities for JAGs have plummeted. While the Air Force now tries only 28% of the number of cases it did in FY90, the total number of JAGs has only slightly decreased from 1398 in FY90 to 1304 in FY19. For Circuit Trial Counsel (CTC), the numbers have actually increased from FY90 to FY19 from 22 to 25. Thus, in FY90 there were 38 GCMs tried for every one CTC. In FY19 the ratio was 8.68 GCMs for every CTC and in FY17 there were only 6.36 GCMs for every CTC. Of course, not every GCM has a CTC assigned.
Even in Article 120 cases, only 90% had a CTC detailed to the case. Moreover, many of the GCMs will end in a deal or a naked plea rather than be fully litigated, further reducing the opportunity to present a findings case. Obviously, some SPCMs will have a CTC detailed to the case, but in my experience from being in charge of the CTCs for four years, JAGC leadership discouraged detailing CTCs to special courts.
The Air Force claims 109 of 127 GCM SJAs serving from 2014 to 2019 have previously served in military justice positions such as circuit trial, circuit defense, area defense counsel, military judge and/or chief of justice. This warrants a closer look. First, being a chief of justice does not necessarily mean a JAG will be in court anymore than the other JAGs in a base office. In fact, typically it means they will be doing fewer courts than the other captains in the office. CTC, Circuit Defense Counsel (CDC) & Area Defense Counsel (ADC) are the only assignments that would really indicate an SJA has more than minimal experience in the courtroom. So, the real question is how many of the SJAs advising the GCMCA has significant experience and/or recent criminal litigation experience? The answer appears to be not many.
Just prior to my retirement in 2014, I reviewed the official biographies for ten GCM SJAs serving at the Numbered Air Force (NAF) level. In the Air Force, the NAF GCMCA is the most likely convening authority to actually refer a court-martial versus the MAJCOM GCMCA for example. I reviewed the bios of the SJAs for 2AF, 3AF, 5AF, 7AF, 8AF, 12AF, 14 AF, 18AF, 20AF and the Air Expeditionary Center. These 10 NAFs represent the lion’s share of GCMs referred that year.
I would note, that in the Air Force, unless a JAG is an ADC, CDC or CTC, they would typically not be detailed to a court-martial except when assigned to a base office as an assistant staff judge advocate or possibly as a deputy staff judge advocate. My review found that 5 of the SJAs served as an ADC for an average of 1 year. One of those also served as a CDC for 3 years. There were no former CTCs or military judges. The average time between the SJA’s last likely court-martial and becoming a NAF SJA was 15.4 years. In other words, only one had senior litigation experience and none had currency.
We can also examine six publicly available official biographies to further illustrate the lack of extensive or recent court-martial litigation experience in senior leadership -- those of the last three TJAGs and DJAGs.
Lt Gen Richard C Harding never served as an ADC, CDC, CTC or military judge. If he tried a court-martial as a DSJA, his last likely court-martial was in 1986. Sixteen years later he became the 8AF SJA and 24 years after his last likely court-martial he became TJAG.
Lt Gen Christopher F. Burne never served as an ADC or CTC but served as a CDC for 10 months, leaving the position in 1990. This was likely the last time he tried a court-martial. Sixteen years later he became the 8AF SJA and 24 years after his last likely court-martial he became TJAG.
Lt Gen Jeffrey A. Rockwell never served as an ADC, CDC, CTC or military judge. His last likely court-martial tried was in 1992 when he was a DSJA. He has never been a NAF SJA. He became TJAG 26 years after his last likely court-martial.
Maj Gen Charles L. Plummer never served as an ADC, CDC, CTC or military judge. His last likely court-martial tried was in 2000. He has never been a NAF SJA and became DJAG 18 years after his last likely court.
Maj Gen Steven J. Lepper never served as an ADC, CDC or CTC. He served nine months as trial judge leaving the bench in 1989. Fourteen years after his last likely court-martial as a trial counsel he became 5AF SJA. He became DJAG 23 years after his last likely court-martial.
Maj Gen Dunlap never served as an ADC, CDC or CTC. He served 23 months as a military judge leaving the bench in 1989. His last likely court-martial was in March 1980. Eighteen years later he became the 9AF SJA and 26 years later he became DJAG.
I’ll leave it to the reader to draw their own conclusions on the data and whether given the current number of cases it is appropriate to question the litigation experience and currency of the SJAs advising general court-martial convening authorities. The JAGC does not make the official biographies of NAF SJAs publicly available, so I recognize this is merely a snapshot.
I have always been impressed with the talent level and dedication of the average JAG serving as an ADC, CDC or CTC, but with ever fewer courts, it is challenge for these JAGs to achieve and maintain the experience needed.
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