- PROVIDING LEGAL SERVICES BY MEMBERS OF THE JUDGE ADVOCATE GENERALS' CORPS

[Senate Hearing 112-217]
[From the U.S. Government Printing Office]

S. Hrg. 112-217

PROVIDING LEGAL SERVICES BY MEMBERS OF THE JUDGE ADVOCATE GENERALS'
CORPS

=======================================================================

HEARING

before the

SUBCOMMITTEE ON PERSONNEL

of the

COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

----------

JULY 20, 2011

----------

Printed for the use of the Committee on Armed Services

PROVIDING LEGAL SERVICES BY MEMBERS OF THE JUDGE ADVOCATE GENERALS'
CORPS

S. Hrg. 112-217

PROVIDING LEGAL SERVICES BY MEMBERS OF THE JUDGE ADVOCATE GENERALS'
CORPS

=======================================================================

HEARING

before the

SUBCOMMITTEE ON PERSONNEL

of the

COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

JULY 20, 2011

__________

Printed for the use of the Committee on Armed Services

Available via the World Wide Web: http://www.fdsys.gov/

__________

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COMMITTEE ON ARMED SERVICES

CARL LEVIN, Michigan, Chairman

JOSEPH I. LIEBERMAN, Connecticut JOHN McCAIN, Arizona
JACK REED, Rhode Island JAMES M. INHOFE, Oklahoma
DANIEL K. AKAKA, Hawaii JEFF SESSIONS, Alabama
E. BENJAMIN NELSON, Nebraska SAXBY CHAMBLISS, Georgia
JIM WEBB, Virginia ROGER F. WICKER, Mississippi
CLAIRE McCASKILL, Missouri SCOTT P. BROWN, Massachusetts
MARK UDALL, Colorado ROB PORTMAN, Ohio
KAY R. HAGAN, North Carolina KELLY AYOTTE, New Hampshire
MARK BEGICH, Alaska SUSAN M. COLLINS, Maine
JOE MANCHIN III, West Virginia LINDSEY GRAHAM, South Carolina
JEANNE SHAHEEN, New Hampshire JOHN CORNYN, Texas
KIRSTEN E. GILLIBRAND, New York DAVID VITTER, Louisiana
RICHARD BLUMENTHAL, Connecticut

Richard D. DeBobes, Staff Director

David M. Morriss, Minority Staff Director

______

Subcommittee on Personnel

JIM WEBB, Virginia, Chairman

JOSEPH I. LIEBERMAN, Connecticut LINDSEY GRAHAM, South Carolina
DANIEL K. AKAKA, Hawaii SAXBY CHAMBLISS, Georgia
CLAIRE McCASKILL, Missouri SCOTT P. BROWN, Massachusetts
KAY R. HAGAN, North Carolina KELLY AYOTTE, New Hampshire
MARK BEGICH, Alaska SUSAN M. COLLINS, Maine
RICHARD BLUMENTHAL, Connecticut DAVID VITTER, Louisiana

(ii)

C O N T E N T S

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CHRONOLOGICAL LIST OF WITNESSES
Providing Legal Services by Members of the Judge Advocate Generals'
Corps
july 20, 2011

Page

Dell'Orto, COL Daniel J., JAGC, USA, Ret., Chairman, Independent
Panel Review of Judge Advocate Requirements of the Department
of the Navy.................................................... 478
Osman, Lt. Gen. Pete, USMC, Ret., Panel Member, Independent Panel
Review of Judge Advocate Requirements of the Department of the
Navy........................................................... 480
Chipman, LTG Dana K., JAGC, USA, Judge Advocate General of the
U.S. Army...................................................... 489
Houck, VADM James W., JAGC, USN, Judge Advocate General of the
U.S. Navy...................................................... 493
Harding, Lt. Gen. Richard C., JAGC, USAF, Judge Advocate General
of the U.S. Air Force.......................................... 497
Ary, Maj. Gen. Vaughn A., USMC, Staff Judge Advocate to the
Commandant of the Marine Corps................................. 500

(iii)

PROVIDING LEGAL SERVICES BY MEMBERS OF THE JUDGE ADVOCATE GENERALS'
CORPS

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WEDNESDAY, JULY 20, 2011

U.S. Senate,
Subcommittee on Personnel,
Committee on Armed Services,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:27 p.m., in
room SR-232A, Russell Senate Office Building, Senator Jim Webb
(chairman) presiding.
Committee members present: Senators Webb, Hagan,
Blumenthal, Brown, Ayotte, and Graham.
Committee staff members present: Richard D. DeBobes, staff
director; Leah C. Brewer, nominations and hearings clerk; and
Jennifer L. Stoker, security clerk.
Majority staff members present: Jonathan D. Clark, counsel;
Gabriella E. Fahrer, counsel; Gerald J. Leeling, counsel; Peter
K. Levine, general counsel; and Jason W. Maroney, counsel.
Minority staff members present: Diana G. Tabler,
professional staff member; and Richard F. Walsh, minority
counsel.
Staff assistants present: Jennifer R. Knowles and Breon N.
Wells.
Committee members' assistants present: Gordon Peterson,
assistant to Senator Webb; Ethan Saxon, assistant to Senator
Blumenthal; Charles Prosch, assistant to Senator Brown; Brad
Bowman, assistant to Senator Ayotte; and Andrew King and Sergio
Sarkany, assistants to Senator Graham.

OPENING STATEMENT OF SENATOR JIM WEBB, CHAIRMAN

Senator Webb. The hearing will come to order.
Let me begin by apologizing for the delay here. We normally
would have started much earlier. But this is a hearing that was
requested by Senator Graham, and he has apparently been held up
for a while. I hope he will show up in all due time.
I didn't want to delay this hearing any longer by taking
that risk. So we will go ahead and begin, and then hopefully,
Senator Graham will be joining us soon.
The subcommittee meets today to receive testimony on legal
services provided by members of the Judge Advocate Generals'
(JAG) Corps. As I mentioned, we are holding this oversight
hearing at the request of Senator Graham. He has been a
champion of the military legal community for some time.
As one who has a rich appreciation for the critical role
that our uniformed members of the JAG community perform, I
would like to express my appreciation to him for all the work
that he has done and also for his requesting this hearing.
Many individuals outside the military associate JAGs solely
with military justice. JAGs do play a significant role in
administering and supervising the military justice system,
which is inextricably linked to a commander's responsibility
for maintaining good order and discipline. However, this is not
the only important function of JAGs.
As the independent panel that reviewed the judge advocate
requirements of the Navy and Marine Corps pointed out, ``The
demand for judge advocate support will continue unabated,
driven by the increasing complexity and intensity of the legal
and policy environment in which commanders are required to
operate.''
In addition to military justice requirements, the panel
examined substantial and increasing operational law
requirements of the Navy and Marine Corps, the requirements for
judge advocates with litigation experience to support military
commissions charged with trying detainees for violations of the
law of war, and the new requirements for judge advocate support
for the integrated disability evaluation system.
JAG officers also are important players in addressing the
legal complexities of defense contracting and acquisition
programs that cost billions of dollars.
One motivation for this hearing is the committee's
longstanding concern about a series of appellate court
decisions critical of the post-trial processes of the Navy and
Marine Corps, addressing the denial of due process for
defendants in those cases. Despite assurances that these
problems were being addressed, they persisted, culminating in
the case of United States v. Foster. This case is perhaps the
most egregious example of how bad a system can get without
proper accountability.
Sergeant Foster was convicted of domestic rape in December
1999. His record of trial languished in the Navy and Marine
Corps appellate process until February 2009, when the Navy-
Marine Corps Court of Criminal Appeals overturned his
conviction because the conviction ``could not withstand the
test for legal and factual sufficiency.''
Sergeant Foster spent more than 9 years in confinement
awaiting the automatic appellate review of his case, a review
that ultimately concluded that the conviction was not
supportable. The court described the evidence of rape as
``anemic at best'' and concluded, ``We have determined that
Sergeant Foster's conviction for rape was improper, as the
Government did not establish his guilt. Therefore, the
appellant has served nearly 10 years of confinement in part for
an offense of which he should not have been convicted.''
The court also said, ``We find the delay in this case so
egregious that tolerating it would adversely affect the
public's perception of the fairness and integrity of the
military justice system.'' In short, Sergeant Foster
experienced a travesty of justice.
As a result, the committee concluded that it could no
longer rely on promises from the Department of the Navy to
improve its system and reacted by requiring the Department of
Defense (DOD) Inspector General (IG) to review the systems,
policies, and procedures currently in use to ensure timely and
legally sufficient post-trial reviews of courts-martial within
the Department of the Navy.
The DOD IG report will be included in the record of this
hearing.
[The information referred to follows:]

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Senator Webb. The DOD IG concluded that, ``Serious post-
trial processing problems persisted for at least the last two
decades,'' and found that, ``Process failures occurred at
almost every segment of the post-trial process as a result of
inadequate leadership, supervision, and oversight.''
In addition to requiring the DOD IG review, the committee
included a provision in the National Defense Authorization Act
for Fiscal Year 2010 establishing an independent panel to
review the judge advocate requirements of the Department of the
Navy. The panel examined the functions of judge advocates in
the Navy and Marine Corps and found that both Services had
failed to increase judge advocate requirements to keep pace
with the increasing requirements for legal support to
commanders operating in an increasingly complex and intense
legal and policy environment.
The final report of the independent panel to study the
judge advocate requirements of the Department of the Navy,
dated February 22, 2011, will be included in this record.
[The information referred to follows:]

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Senator Webb. Finally, today's hearing will also consider
efforts by the Secretary of Defense to reduce the numbers of
flag and general officers. On March 14, 2011, Secretary Gates
approved the elimination of 102 general and flag officer
authorizations, 21 of which are Air Force authorizations. Three
of these are Air Force judge advocate brigadier general
positions that will be downgraded to colonel positions--the
Staff Judge Advocates for Air Mobility Command, Air Combat
Command, and Air Materiel Command.
Senator Graham informed me that he has real concerns about
this reduction, and right on cue, he enters the hearing.
Welcome, Senator Graham.
Senator Graham. I apologize.
Senator Webb. As I mentioned earlier, we waited until
quarter after and as a courtesy----
Senator Graham. We got hung up with the Republicans, which
is hard to believe. [Laughter.]
Senator Webb. These are trying times. But you walked in
just at the right moment. I will continue and then hand it over
to you.
Senator Graham informed me he has real concerns about this
reduction. We are discussing the reduction in general officer
authorizations in the Air Force JAG.
I have also collected data on the numbers of general and
flag officers in each Service, the number of JAG and flag
officers, and court-martial and discharge data. I would like,
actually, to take a little bit of time on this data.
Since it was passed out while people were waiting for us to
begin the hearing, I am sure there has been a little bit of
buzz about the information on it. But let me start with the
first slide, and I would like to just talk my way through it.
[The slide referred to follows:]

[GRAPHIC(S)] [NOT AVAILABLE IN TIFF FORMAT]

Senator Webb. This slide was put together at my request,
which goes from left to right, with the end strengths of each
of the military Services, then the number of general and flag
officers in the Service, a ratio showing how many general or
flag officers per servicemember, an outline of the JAG
positions--general flag officer positions--and a ratio, and the
number of Active Duty JAGs in each Service. It is a fairly
interesting comparative chart. I believe strongly that the best
way to have policy discussions is to start with facts.
On this chart, you will see that the Army has 569,400
people, its authorized end strength. They have 315 flag
officers, for a ratio of 1 general officer to every 1,800
soldiers.
The Navy has 328,700 people on Active Duty and a total of
257 admirals, flag officers, a ratio of 1 to every 1,279.
The Marine Corps has 202,100 people in Active Duty, 86
general officers, a ratio of 1 to every 2,350.
The Air Force has 332,280 people on Active Duty, and 314
general officers, for a ratio of 1 for every 1,058.
You will see in this chart that the Air Force has presently
13 four-star generals, which is more than any of the other
Services. It has 43 three-stars, which is the same as the Army
and the Navy, the Navy being almost identical in size to the
Air Force, by the way.
The Air Force has 107 two-stars, compared to Navy's 74. The
Army has 117, and it has 151 general officer brigadier
generals, which is actually more than any other Service.
If you look at the JAG general flag officer positions, you
will see that the Army has one 0-9, one 0-8, three 0-7s, and
one 0-7 temporary position, for a total of six.
The Navy has one 0-9, one 0-8, and then three 0-6s that are
tombstar retirements to 0-7 upon retirement. So it has two
flags.
The Marine Corps has one 0-8, one two-star, and one colonel
position that with a tombstone promotion to 0-7 upon
retirement.
The Air Force has six general officer flags as JAGs.
If you could get the second chart, please?
[The slide referred to follows:]

[GRAPHIC(S)] [NOT AVAILABLE IN TIFF FORMAT]

Senator Webb. I actually asked for this data out of
curiosity. As many of you know, I spent 5 years in the
Pentagon. I believe that if you can go from the facts, you can
have a better discussion of what the policy discussions should
be.
Again, if we are looking at the number of JAGs in the
military, it is a good starting point to look at the legal
proceedings over the past couple of years, just to see what
they look like Service by Service. I am not going to spend a
lot of time going through each one of these numbers, but the
most interesting point for me on this is that the numbers seem
to be wildly disparate.
The Army doesn't have information available for the types
of discharges that it ordered. If you read this chart, left to
right, it is number of courts-martial, number of nonjudicial
punishments (NJPs), the number punitive discharges as a result
of courts-martial, the number of other than honorables (OTH)
discharges due to administrative procedures, number of general
discharges, and then the number of honorable discharges.
Several things jump out, and I am saying this to make a
point, as the chairman of this subcommittee, not simply for the
hearing today, but as a continuation of the concern that I have
with the data that we have been able to receive from DOD in a
number of different cases.
I asked, when the Assistant Secretaries for Manpower were
testifying here, if they could give us some data on percentages
of discharges--how many honorables, how many generals, how many
OTHs, et cetera. There was a general response that they didn't
know, which really stunned me, to be quite frank.
I have a chart here where the Army--with plenty of advance
notice--doesn't have the information. The Marine Corps, in
terms of honorable discharges, we had a chart 2 days ago, where
they said they had in fiscal year 2010 3,700 honorables, and
then today we got a chart that said they got 39,862 honorables.
This kind of fits into a pattern. When I first started
working on data to try to support the GI bill, when I
introduced it, one of my questions was since the GI bill is
principally designed to help people in their readjustment to
civilian life after the military, what percentage of people in
the different Services leave with honorable discharges before
the end of their first enlistment? It took me a year to get
that data.
We asked in one hearing how many contractors were in DOD?
Nobody seemed to be able to give us an answer. I asked for
historical data on the different commands and DOD headquarters
units, and it took us over a month. I think it took us 3 months
to get that data.
Just as someone who has done this for a long time, I have
to compare that kind of reaction to when I was committee
counsel up here in 1977, when we had some very complex
legislation on what was called the Carter Discharge Review
Program, it dealt with the number of bad discharges that were
given during the Vietnam era.
At one point in those hearings, I asked DOD, can you give
me the number of discharges by category, by year during the
Vietnam era, by Service? I had it in 24 hours. I had from DOD a
multiyear breakdown by Service, by discharge in 24 hours.
I asked them the next week, can you give me the casualties
in Vietnam, year-by-year, by Service and by ethnic groups? I
had that in 24 hours.
I don't think the computer systems back then were any
better than they are now, and I don't think people were
particularly any less challenged than they are right now. So it
just raises a huge question for me for how we are communicating
between DOD and the U.S. Congress and whether DOD is tabulating
this kind of data.
It is vital data. If you can't figure out where your
discharges are, you really can't speak broadly to the nature of
discipline in your Services.
So I am taking some time to lay that out because it affects
a lot of other things we are going to be doing in this
subcommittee.
With that, Senator Graham, you asked for this hearing, and
I am going to just turn it over to you.
Senator Graham. Thank you, Mr. Chairman.
I appreciate you bringing this to our attention. Obviously,
we need another hearing on why you can't provide information in
a timely manner.
Senator Webb. We will just keep raising it until they start
giving us answers.
Senator Graham. I join with you in that regard.
But this hearing is about the role of the judge advocate in
the 21st century. Our military has been deployed since
September 11, 2001, almost continuously. I have had a chance to
see in action on the ground judge advocates in Iraq and
Afghanistan, doing things that didn't even exist 5 years ago.
I don't know about the court-martial load here. I hope it
is down. I think it probably is because you have the most
motivated, well-trained, highly-educated force, so I would
expect it to go down.
But in terms of the workload of the judge advocate, it has
just been amazing what the Navy and the Air Force have been
doing to help our Army brethren over there with detainee review
boards. The number of prisoners that have gone through American
military custody in Iraq at one time was over 40,000, and all
of them had to have some form of representation. They have been
producing law of war detention boards literally under fire.
So I am very proud of the JAG Corps officers who have
provided great counsel and advice. Keeping these bad people off
the battlefield is great for the warfighter because when the
marines roll them up, if they are getting out in a week, that
is bad for morale. Quite frankly, when the marines roll up
people that shouldn't have been caught, it is bad for our
ability to win over the population.
So we have had a pretty robust legal presence in the war on
terror, unlike any time I have ever seen.
Mr. Chairman, I really respect you. But I can tell you one
thing that happened without any doubt, in my view, is that
during the initial invasion of Iraq, people in the Pentagon
were not listening as closely as they should about detainee
operations and that the military legal community's voice wasn't
as strong as it should have been.
Rank matters, you know better than anyone. The reason that
the JAGs today are three-stars is because now they are
guaranteed a seat at the table. When they were two-stars, their
advice pretty well got canned. So it is pretty hard to ignore a
lieutenant general.
But the independent panel we asked to be impaneled was to
look at a Navy-Marine Corps manning problem. So, if I could,
Mr. Chairman, can I just open it up to our witnesses and have
them tell us, if you don't mind, their general findings? Maybe
we can learn from their experience. Is that okay?
Senator Webb. We can do that. Welcome the witnesses in the
first panel, and I appreciate your patience in having sat
through a waiting period and my long intro.
Senator Graham. Yes, well, that is my fault. I apologize.
Senator Webb. First we have retired Colonel Daniel
Dell'Orto, former Principal Deputy General Counsel for DOD, and
retired Lieutenant General Pete Osman, who served as Deputy
Commandant for Manpower and Reserve Affairs in the U.S. Marine
Corps.
Gentlemen, welcome. Your report is a very comprehensive
review, and we look forward to hearing your observations.

STATEMENT OF COL DANIEL J. DELL'ORTO, JAGC, USA, RET.,
CHAIRMAN, INDEPENDENT PANEL REVIEW OF JUDGE ADVOCATE
REQUIREMENTS OF THE DEPARTMENT OF THE NAVY

Colonel Dell'Orto. Good afternoon, Mr. Chairman, members of
the committee. On behalf of Lieutenant General Osman, thank you
for the opportunity to appear before the committee today.
We are here to discuss the congressional mandate contained
in section 506 of the National Defense Authorization Act for
Fiscal Year 2010 to ``carry out a study of the policies and
management and organizational practices of the Navy and Marine
Corps with respect to the responsibilities, assignment, and
career development of judge advocates for the purposes of
determining the number of judge advocates required to fulfill
the legal mission of the Department of the Navy.''
In full compliance with the Federal Advisory Committee Act,
the panel conducted 5 public meetings and posted more than 200
documents on a Web site for review by interested persons.
In addition to Lieutenant General Osman, the panel included
a number of distinguished former public servants and former
colleagues of mine who have served our Nation in the past and
continue to serve in a variety of roles. They include the
Honorable Judith A. Miller, former DOD General Counsel; Rear
Admiral James E. McPherson, U.S. Navy, retired, former JAG of
the Navy; and William R. Molzahn, former Deputy General Counsel
for the Department of the Navy.
Each of these persons volunteered for service on the panel
and devoted considerable hours to the panel's work. They should
be commended for stepping forward yet again to provide selfless
service to our DOD and to our Nation.
The panel received outstanding support from the Department
of the Navy, including extremely professional administrative
support from the Office of the Secretary of the Navy and the
Office of the General Counsel of the Navy. The Navy provided
the panel with a first-rate staff of Marine and Navy judge
advocates, civilian attorneys, and administrative staff, all of
whom are acknowledged in our report.
We received tremendous support and cooperation from
numerous witnesses from both inside and outside the DOD legal
community. General David Petraeus; Vice Admirals Harry Harris,
John Bird, and Robert Harward; and Marine Lieutenant Generals
John Kelly and Richard Natonski provided invaluable insight
into the critical role that judge advocates play in today's
fluid operational environment in both regions of conflict and
regions of apparent calm.
Vice Admiral James Houck, the JAG of the Navy, and Major
General Vaughn Ary, the Staff Judge Advocate to the Commandant
of the U.S. Marine Corps, provided the panel with comprehensive
testimony and other information regarding the organization,
missions, and staffing of the uniformed legal community in
their Services.
The panel completed its 217-page report on February 22,
2011, and delivered it to Secretary Gates and to the chairmen
of the Senate Committee on Armed Services and the House Armed
Services Committee.
The panel addressed each of the areas of review mandated by
the statute. By way of summary, the panel believes that the
demand for judge advocate support will continue unabated, as
Chairman Webb has already indicated, driven by the increasing
complexity and intensity of the legal and policy environment in
which commanders are required to operate.
In addition, their contribution to good order and
discipline, by supporting a just and functional military
justice system, is equally noteworthy and essential to the
overall well-being of the Navy and Marine Corps.
Military justice, from complex, high-profile general
courts-martial to due process advice and representation during
administrative proceedings, needs to remain an important and
necessary core function for the Navy and Marine judge
advocates. In the end, proper manning, resourcing, training,
and retention of judge advocates in the Navy and the Marine
Corps is both a necessity and a cost-effective force multiplier
that contributes to the ultimate mission success of both
Services.
I would request, Mr. Chairman, that our report also be made
a part of today's record.
Senator Webb. Yes, it has been entered as a part of the
record.
Colonel Dell'Orto. I would like to then offer General Osman
the opportunity to add his comments. Upon completion of those
comments, we are prepared to address your questions.
Senator Webb. Let me also say at this point that your full
statement, if it is different than what you gave, also will be
entered as part of the record.
[The prepared statement of Colonel Dell'Orto follows:]
Prepared Statement by COL Daniel J. Dell'Orto, USA (Ret.)
Good afternoon, Mr. Chairman and members of the committee, and on
behalf of Lieutenant General Osman, thank you for the opportunity to
appear before the committee today.
We are here today to discuss the congressional mandate contained in
section 506 of the National Defense Authorization Act for Fiscal Year
2010 to ``carry out a study of the policies and management and
organizational practices of the Navy and Marine Corps with respect to
the responsibilities, assignment, and career development of judge
advocates for purposes of determining the number of judge advocates for
purposes of determining the number of judge advocates required to
fulfill the legal mission of the Department of the Navy.''
In full compliance with the Federal Advisory Committee Act, the
panel conducted 5 public meetings and posted more than 200 documents on
a Web site for review by interested persons. In addition to Lieutenant
General Osman, the panel included a number of distinguished former
public servants and former colleagues of mine who have served our
Nation in the past, and continue to serve in a variety of roles. They
include the Honorable Judith A. Miller, former Department of Defense
General Counsel; Rear Admiral James E. McPherson, U.S. Navy (retired),
former Judge Advocate General of the Navy: and William R. Molzahn,
former Deputy General Counsel for the Department of the Navy. Each of
these persons volunteered for service on the Panel and devoted
considerable hours to the Panel's work. They should be commended for
stepping forward yet again to provide selfless service to the
Department of Defense and to our Nation.
The Panel received outstanding support from the Department of the
Navy, including extremely professional administrative support from the
Office of the Secretary of the Navy and the Office of the General
Counsel of the Navy. The Navy provided the Panel with a first-rate
staff of Marine and Navy judge advocates, civilian attorneys and
administrative staff, all of whom are acknowledged in our report. We
received tremendous support and cooperation from numerous witnesses
from both inside and outside the Department of Defense legal community.
General David Petraeus, Vice Admirals Harry Harris, John Bird, and
Robert Harward; and Marine Lieutenant Generals John Kelly and Richard
Natonski provided invaluable insight into the critical role that judge
advocates play in today's fluid operational environment in both regions
of conflict and regions of apparent calm. Vice Admiral James Houck, the
Judge Advocate General of the Navy and Major General Vaughn Ary, the
Staff Judge Advocate to the Commandant of the United States Marine
Corps provided the Panel with comprehensive testimony and other
information regarding the organization, missions and staffing of the
uniformed legal community in their Services.
The Panel completed its 217-page report on February 22, 2011 and
delivered it to Secretary Gates and to the Chairmen of the Senate
Committee on Armed Services and the House Armed Services Committee. The
Panel addressed each of the areas of review mandated by the statute. By
way of summary, the Panel believes that the demand for judge advocate
support will continue unabated, driven by the increasing complexity and
intensity of the legal and policy environment in which commanders are
required to operate. In addition, their contribution to good order and
discipline, by supporting a just and functional military justice
system, is equally noteworthy and essential to the overall well being
of the Navy and Marine Corps. Military Justice, from complex, high-
profile general courts-martial to due process advice and representation
during administrative proceedings, needs to remain an important and
necessary core function for Navy and Marine judge advocates. In the
end, proper manning, resourcing, training and retention of judge
advocates in the Navy and Marine Corps is both a necessity and a cost-
effective force multiplier that contributes to the ultimate mission
success of both Services.
Lieutenant General Osman and I are prepared to address your
questions. Thank you.

Senator Webb. General Osman, welcome.

STATEMENT OF LT. GEN. PETE OSMAN, USMC, RET., PANEL MEMBER,
INDEPENDENT PANEL REVIEW OF JUDGE ADVOCATE REQUIREMENTS OF THE
DEPARTMENT OF THE NAVY

General Osman. Mr. Chairman, I can only echo what Colonel
Dell'Orto has said with regards to the panel's activities and
the support that we received. I can tell you that as a marine
infantryman and the only non-attorney on the panel, it was an
honor and quite an education.
Senator Webb. Lending dignity to what otherwise would have
been a vocal brawl, I am sure.
General Osman. The Commandant had a reason for putting me
there, I think, and I hope I fulfilled that for him.
Really, it was a pleasure and an honor to be able to serve
on the panel, and I look forward to the questions that you may
have for us, sir.
Senator Webb. Thank you very much. If you have a written
statement, it will be entered in the record at this time.
General Osman. Sir, I think that Dan would agree this is
our written statement right here.
Senator Webb. Thank you, and it is a part of the record.
Senator Graham, I am just going to let you go ahead and ask
questions.
Senator Graham. In a couple minutes, tell us what you
concluded.
Colonel Dell'Orto. I think if you look at the report----
Senator Graham. Assume we are all infantrymen up here.
Colonel Dell'Orto. Except for myself, who was an artillery
man in my earlier days, Senator Graham.
I think we took a look at a wide array of issues, as the
statute directed that we do. I think certainly, as has already
been mentioned, judge advocates today perform a much broader
array of duty, legal duties, than perhaps at any point in their
history.
I can certainly say from my personal experience as a judge
advocate for 20 years that the judge advocates of today, in
this environment--and certainly, I don't limit that to the
combat environment in which so many of them are serving--the
nature of the issues, the variety of issues go well beyond the
focus that I had as principally a military justice
practitioner.
The people who preceded me and many of my generation
focused much of their career principally on military justice,
administrative law in the traditional sense, things of that
nature. Today, when you look at Navy JAGs and all that they
have responsibility for, with respect to maintaining their
operational exercise areas free from litigation in our civil
courts to what is being done on battlefields in Iraq and
certainly now in Afghanistan with respect to rule of law, that
goes well beyond purely legal practice.
Senator Graham. Do you know how many Navy JAGs and Marine
Corps JAGs have been deployed in Iraq and Afghanistan?
Colonel Dell'Orto. There have been significant numbers,
Senator Graham. I don't know the numbers. We certainly talk
about the numbers who are performing and have been performing
different types of duties with respect to, I think, rule of law
functions, operational law functions, things like that.
I know on my own trips to the theater, when I was still in
the department, I ran across a number of Navy JAGs operating in
support of either Marine units or serving in command elements
as part of the legal staffs there. So, certainly, a number of
them have been deployed.
I would say that certainly--so the variety of duty that
they perform is far broader than ever before. I would say that
I think the expectations that they will be able to deliver
their advice very quickly at a time when the information flow
that commanders deal with, the information flow the senior
leaders deal with is such a fast-paced environment that there
is a premium on getting advice to commanders and senior
civilian officials at an ever-increasing pace.
I think that that, in addition to the variety of work that
they do, puts a premium on having great amount of expertise
embedded in each and every JAG, when he or she is performing
duties at any level of command, at any location.
Senator Graham. In terms of numbers, do we have enough? Do
we need more?
Colonel Dell'Orto. Again, our mandate, Senator Graham, was
to look at the Navy and the Marine Corps. We believe, at the
moment and as we look into the near term, on the Marine Corps
side, we believe that the Marine Corps has programmed billets
for enough judge advocates to meet current and immediate future
missions.
We have concerns on the Navy JAG side. If you assume that
we will continue at the current pace of operations, the current
pace of deployments for the fleet, if you look at the decision
that has been made since the panel wrote its findings with
respect to military commissions, we believe that you put all
that together and the Navy program for the immediate 3, 4 years
down the road, I would say, is probably about 200 attorneys
short.
I think we forecast about 950 attorneys for the Navy, and I
think they are at about 750 or plan to be at about 750. Whereas
the Marines, I think, are looking at--we fixed the requirement
at about 550, and we believe the Marines have planned for that.
Senator Webb. Maybe you can clear up one thing for me, and
then I am going to move to others who may want to ask a
question. To what extent does the Foster case represent
something that was endemic to the system, and to what extent
was that an anomaly?
Colonel Dell'Orto. One of the problems with the Foster
case, in and of itself, was that it followed on the heels of
other episodes of similar delay in the process associated with
review of a court-martial.
I think my own experience as an appellate advocate in the
Army would indicate that sometimes--I mean, things can happen,
even in a system that is built to be as foolproof as we would
like to think that these systems are. But I think the biggest
problem for Foster is that we had a wakeup call in Moreno
several years earlier, and one would have hoped that a case
like Foster would not have suffered from the same fate.
I didn't look at the record of trial in Foster. My
assumption is that it was principally a case in which there was
testimony going back and forth between the defense and the
prosecution. I doubt that there was much in the way of
forensics. I am making an assumption. Perhaps I shouldn't.
But if you assume that--and I think the record of trial may
have been 700, 800 pages or so. But again, in the absence of a
highly complicated, science-based evidentiary issue--and it
appears that there was not any--I would say, real esoteric law
involved--it was a straight-up, factual--bust for factual
insufficiency--it would seem to me that that is a case that
should have been handled a little bit more cleanly.
Senator Webb. In the normal circumstance, how long would
that have taken?
Colonel Dell'Orto. I don't know what the normal
circumstance would be for the Marines, Mr. Chairman, and for
the Navy appellate review authority or for the Navy-Marine
Corps Court of Criminal Appeals. But we have multiple
enlargements for the case once it gets to the appellate court.
At some point, someone has to say hold it. We have gone too
long.
I would have hoped that someone would have seen fairly
early on in the appellate process that this was going to be a
factual sufficiency case and that there was some chance that it
might get overturned on review. But again, I can't talk to how
systematic this problem is or was.
But we do know that we had at least one previous incident
that members of this committee, we believe, were concerned
about with Moreno, and yet Foster followed at some point on the
heels of it.
Senator Webb. Thank you.
Senator Brown.
Senator Brown. Thank you, Mr. Chairman.
Just for purposes of disclosure, I am a JAG and have been
for a while. I have recognized the old caveat that you never
want a JAG until you actually need one, when your you-know-
whats are in the wringer and you need some guidance as to
whether to go or not to go.
Especially in this ever-changing world of war and conflict
that we are in, the problem can potentially be that if you
don't get the proper guidance, you are on the front page of the
newspaper or on CNN, and you have created an international
incident.
So that is really where my head is at as to: are we going
to make some cuts to save some money, or are we going to make
some cuts and potentially start another worldwide incident?
That is how basic it is for me.
In your report, you spoke about the legal risks of failing
to provide the right numbers of judge advocates with the right
training and experience, and I reference especially in this
complex legal environment. I guess the question for today is
what effect precisely would result from lowering the number of
operational lawyers, particularly in the Navy and Marine Corps?
I know personally the effect I think it would have on
individual servicemen, but can you comment on how it would
affect our operations around the world, particularly with your
perspective as a former infantry officer and commander?
That would probably be you, General, and then I will
certainly refer back to the artillery man.
General Osman. Certainly, Senator Brown.
As Mr. Dell'Orto explained, once a lot of these things had
come to light, I will coin a phrase that the Commandant used.
He saw a ``call to action'' and began to take--through the
Total Force Structure Division within the Marine Corps, take a
look at the number of judge advocates that were needed.
It was determined to be 550, and as Mr. Dell'Orto said, the
committee agreed with that number. The Marine Corps has begun
quite a ramp-up to get there. In fact, if you look, back in
September, I believe they had 438 judge advocates. Today, they
have 510. So they are moving very quickly to get to that 550.
So that is good.
The Navy faces a challenge. Again, the panel had determined
they needed about 950. I believe Vice Admiral Houck had figured
somewhere around 925, something like that. It looks like the
Navy is on a glide slope to go down to as few as 750. That
would be a concern for me.
The Navy does have a lot of lawyers involved in operational
law, probably--certainly more than the Marine Corps has
involved in operational law. If you look at the military
justice piece, interestingly, the Marine Corps probably has a
higher demand in that area than the Navy does. In fact, that
may be one of the challenges that the Navy is going to face is
ensuring they have the experienced litigators they need to
address the military justice issue.
So there are challenges out there, Senator Brown. That is
the bottom line. Watching these numbers closely and the concern
that this committee has for that is probably well founded.
Senator Brown. So do you think it would affect our
operations around the world, the lack of proper counsel?
General Osman. Again, having listened to the testimony of
Vice Admiral Houck, as well as a number of commanders in the
field, the increasing requirement for lawyers in operational
law is definitely there.
In fact, when I did my interview with General Petraeus,
asking how many judge advocates he had on his staff, he said,
``Not enough.'' He had way more than he rated at that time, but
nonetheless, he said he used them in a lot of positions that
were out of the judge advocate community because, as he said,
they are very good critical thinkers. That is what he needed.
So the requirement is out there from the operational
commanders in the field.
Senator Brown. That is interesting because my next question
was, could you comment on how the general feels or felt,
actually, about his lawyers? But do you know how he would feel
about terminating Active Duty military lawyers, as the Navy
apparently is planning on doing?
General Osman. Again, in the interview I had with him, he
made it quite clear that he would take as many judge advocates
as he could get to put on his staff. So, obviously, if there
was a reduction in the numbers, he would not have liked that.
Senator Brown. So when you were doing your report, did you
speak to the Navy and determine what the discrepancy was
between your numbers and their numbers and what the reasoning
was? I know I am obviously going to ask the same question. What
was your opinion on why? I mean, why do they think--is it just
numbers driven? Do they need to save money?
General Osman. I think that Vice Admiral Houck can probably
better address how the Navy goes about determining the numbers
that it needs of judge advocates.
Again, as I said, in the Marine Corps, they have a thing
called a Total Force Structure Division that sits down as the
honest broker and literally works the numbers and came out with
the 550. Again, the panel, after reviewing it, said that made a
lot of sense.
Senator Brown. I guess, Mr. Dell'Orto, just one final
question. Can you comment on the relative strengths and
weaknesses that struck you the most regarding how each Service
provides judge advocate support?
Colonel Dell'Orto. Again, Senator, when you talk about each
Service, you are about the Marines versus the Navy?
Senator Brown. Yes, each Service. Those two Services. So,
yes.
Colonel Dell'Orto. I think both are doing an awfully good
job of providing support where their commanders believe they
need support. I think when the Marines determined that they
were going to put judge advocates at battalion and regimental
level for their deployed forces, I thought that was a
significant commitment on the part of the Marine leadership to
ensure that commanders, I mean, at the lowest levels had access
to legal advice.
I think the Navy certainly has, in terms of supporting the
Marine Corps in some of the prosecutions that have taken place
where the Marine Corps needed additional counsel in support of
its freedom of navigation efforts and, as I alluded to earlier,
some of the environmental battles they are fighting to maintain
their ranges or their exercise areas, I think the Navy JAG
community and the leadership has been doing a very good job in
deploying their JAGs where they think they have some
significant needs.
I think they have been utilizing their JAGs correctly. I
think the question is, at least with respect to the Navy,
whether they are going to have enough to do all that they are
being asked to do.
Senator Brown. Thank you, Mr. Chairman.
Colonel Dell'Orto. May I add one additional comment in
response to Senator Brown and General Osman?
We highlighted the number of general and flag officers who
provided information to us and were interviewed by us. We
didn't have to go soliciting that. One of the things that I
think we found remarkable, they came to us. They wanted to talk
to us about the value that they find in the presence of their
JAGs.
So, believe me, I mean, as great as it was to have General
Petraeus come in and do that for us or Admiral Harris, whom I
know well from the multiple assignments he has had, we didn't
have to go beg them to do that. We didn't have to ask them.
They just came to us because they--it was a testament to the
value they placed on the role--they place on the role of JAGs
in their responsibilities.
Senator Webb. Thank you, Senator Brown.
Just as an observation from General Osman's comment about
the different functions of the JAGs in different disciplinary
environments in the Service, if you look at this data sheet
that we have here, the Marine Corps had six times as many
courts-martial as the Navy did last year. If you figure that
the manpower is about two-thirds, that that force has about
two-thirds, that means the Marine Corps had nine times the rate
of court-martial as the Navy did last year.
Senator Ayotte?
Senator Ayotte. Thank you, Mr. Chairman.
I want to thank both of you for coming here today. This is
a very important issue. It is so important that we respect the
rule of law and that particularly those who serve are afforded
the presumption of innocence.
It is a fundamental of our constitutional rights. I think
that the JAG Corps performs such an important function in our
armed services. So I really appreciate the analysis that both
of you have done.
Can you help me understand the Foster case, an
understanding that that was just an egregious situation. Are
there proper systems in place to avoid that happening again, in
your opinions?
Colonel Dell'Orto. I think the Navy and Marine Corps have
certainly taken steps to correct the failures in that. We
outlined several things in the report that have already been
done to take into account an administrative responsibility for
watching these cases as they move through the system.
I think more is being done. The Navy, I know, is having a
study done that will take a look at what the Army and the Air
Force have done over the years with respect to tracking cases
from cradle to grave, if you will.
I know my experience, when I was a trial counsel, I had a
retired E-9 as my paralegal. When I was the chief of military
justice, and if we didn't move a case quickly, he was getting a
call from Washington and the clerk's office about where this
case is, why isn't it moving more quickly?
This was prior to the computer age, with databases and
systems that would automatically trigger a request for
information. There were people literally looking at the reports
and asking questions if a case didn't appear to be moving
quickly.
As a military judge in Korea in the 1990s, I had to fill
out a report at the conclusion of every case I tried that
triggered the tracking of that case back in Washington. So, you
had parallel paths for reporting of the cases taking place.
Judiciary was tracking the case, and certainly, the command had
responsibilities coming back into the Army Legal Services
Agency for tracking a case.
I always felt that system held up pretty well. I can't say
that the Army was immune from having a Foster-like case.
But I have commended that to Vice Admiral Houck, and I
know--and his response to me is that they are already looking
at that and looking at the systems in place in the other
Military Departments and Services to see whether they can learn
from those and adapt some of those systems. Because there are
systems that work, in my view.
Senator Ayotte. Particularly, as you point out, in the Army
and the Air Force and then also, obviously, on the civilian
side of how things are tracked. How far off are they from
implementing an actual system that would be similar or have
similarities to what the Army and the Air Force have in place?
Colonel Dell'Orto. Senator, as we point out in the report,
certain things have already taken place. They are not
necessarily tied to, I think, the assessment or review of what
the other Services are doing. That piece is underway right now,
and I don't know how close they are to completing that
assessment to determine whether those systems are transferable
into the Navy-Marine Corps situation.
Senator Ayotte. Did you get a good sense of urgency?
Because this seems like a very urgent situation, in my opinion.
Colonel Dell'Orto. I did. But I will let General Osman
speak for himself on that.
General Osman. As Colonel Dell'Orto said, both Services
have taken some initiative with respect to tracking. The Navy
has their court-martial tracking and information system that
they are utilizing now, and the Marine Corps has a case
management system that they are using to help track cases.
I think the panel would say that both of those still need
some work. They would not stand alone as they are. But
nonetheless, DOD is looking at what the Air Force and Army do;
so they are pursuing alternative case tracking systems that
will assist them in this.
Senator Ayotte. Can I ask you both about the military
commission system? I am a strong supporter particularly of
using the military commission system to try individuals at
Guantanamo. I am very pleased that the administration, for
example, has changed their position on individuals like Khalid
Sheikh Mohammed because I think it is important for the
security of the American people.
What is your assessment of the litigation teams with
respect to handling military commissions? Again, I want to also
emphasize the importance of the military commissions points out
the importance of having a robust and sufficient JAG Corps
because it shouldn't just be the military commissions. We don't
want our soldiers to be given short shrift because we have to
focus all the resources there. Sufficient resources have to be
there to cover all of this.
Colonel Dell'Orto. As one who was there at the inception of
military commissions and has been part of the effort to help
get the right staffing in place for military commissions, I
strongly support the view that we need to put first-class
talent in the roles of prosecutors, defense counsels and
judges. I similarly believe that for our courts-martial,
regardless of the number, we need to ensure that we have first-
rate lawyers as prosecutors, as defense counsels, and as
judges.
We face an interesting dilemma at this point. As the
numbers that the chairman has requested are examined, you see
that the numbers of courts-martial that are being tried
continues to decline. Certainly from my time as a prosecutor
and defense counsel in the 1970s and 1980s, in both the
continental United States (CONUS) assignments and in European
assignments, our numbers were significantly higher.
All of us who were military justice practitioners then
tried a lot of cases. Our predecessors who served in Vietnam,
Germany, Europe, and overseas assignments during that era and
immediately following tried far more cases than I did and my
contemporaries.
You get better as a military justice practitioner the more
you practice that craft, whether you are a trial counsel, a
defense counsel, or even a judge. That is not to say every case
you try needs to be a general court-martial to get better.
An Article 15 turndown where both sides are going at each
other tooth and nail is a great opportunity to learn your craft
as a trial counsel, whether you are trying or prosecuting or
defending. You learn that in series of plateaus.
You may try your first 20 cases, and the bulk of them as a
trial counselor are guilty pleas. You go in there and you are
sweating that that defendant is going to bust providency on
that case, and you are scared to death you are going to have to
try that case.
By the time you get to that 40th or 50th case--and I don't
want to be cynical about this--but you are almost hoping that
he busts providency because you can't wait to try that case.
I will confess that I sort of went kicking and screaming to
be a defense counsel. But once you get in the saddle and you
get the hang of it, you appreciate, as you go through a series
of plateaus in your development as a counsel and get
significant numbers of cases under your belt, you gain a full
appreciation for the importance of that role not only for the
client, but also the importance of the role for that system of
justice.
So how do we handle this now? How do we handle the needs to
have highly qualified, skilled counsel trying cases where there
aren't that many cases to be tried?
How do we ensure that we have the right set of trial
counsel, defense counsel, and judges to be thrown into military
commission mix, when perhaps they are still not quite done
developing that skill set in the court-martial realm?
We have struggled with that. We struggled through it the
whole time, as post-September 11, 2001, when the President's
order on military commissions came out. It was a constant
battle, particularly with the lurching back and forth about
whether we were going to try cases at military commissions.
We took testimony from retired Vice Admiral MacDonald, who
is now the convening authority for military commissions. He
told the panel that he has been assured by each of the Judge
Advocates General that he will get first-rate counsel to fill
those billets as we go forward, if and when the decision was
made to go forward with military commissions, as that decision
has since been made.
He is also counting on support from the Department of
Justice, where, presumably, you have people who have spent a
little bit more time in the courtroom, who will also fill in
and be part of the mix of attorneys on the trial counsel side,
on the prosecution side.
Certainly, my experience, when I was there, the defendants
were getting a lot of highly skilled lawyers from the defense
bar stepping forward, as we expected and hoped they would, to
step forward and defend people in the military commission.
So I don't know that we will ever be completely satisfied
that we have all the right people, but I know a lot of
commitments have been made to ensure that the right people are
there.
Senator Ayotte. Thank you.
Senator Webb. Thank you, Senator Ayotte.
Gentlemen, thank you for appearing before us today. We
appreciate your work in this vital area. Again, I apologize for
having been late in opening this hearing.
I will now welcome our second panel, consisting of
Lieutenant General Dana Chipman, JAG of the Army; Vice Admiral
James Houck, JAG of the Navy; Lieutenant General Richard
Harding, JAG of the Air Force; and Major General Vaughn Ary,
Staff Judge Advocate to the Commandant of the Marine Corps.
We look forward to your assessment of and response to the
DOD IG's report and the independent panel's review of JAG
issues and your assessment of the manning and structure of your
respective JAG Corps.
Without objection, again, your full written statements will
be included in the record of the hearing. We will ask each of
you to make an oral statement of your choosing once you get
seated.
General Chipman, we will start with you and move across the
table. Welcome.

STATEMENT OF LTG DANA K. CHIPMAN, JAGC, USA, JUDGE ADVOCATE
GENERAL OF THE U.S. ARMY

General Chipman. Thank you, Senator Webb.
Mr. Chairman, members of the subcommittee, thank you for
the opportunity to discuss the provision of legal services by
the outstanding members of the Army JAG's Corps--Active, Guard,
Reserve, and civilian--both in deployed environments and at
home station.
Before I begin, I would like to thank you and the members
of this body for your support of the men and women of our Armed
Forces. I note that everyone in this room uniquely exemplifies
our joint team commitment.
Sir, you served on Active Duty. We have members of the Air
Reserve, the Army Guard, the JAG Corps. We have the military
spouses, because we recruit individuals and yet we retain
families.
I would like to thank all of you for your service to our
joint team.
The Army JAG Corps is comprised of about 1,900 judge
advocates, 100 warrant officers, and 1,800 enlisted paralegals.
Currently, we have in excess of 140 Army judge advocates
deployed to Afghanistan, in excess of 100 in Iraq, and 300 more
serving in 19 other countries overseas.
We have five Active component general officers providing
strategic oversight of our corps, while ensuring that the
Army's most senior leadership receives the trusted and
experienced counsel it demands. On a temporary basis, we have a
sixth general officer. He serves in a joint billet in
Afghanistan, providing support to rule of law operations.
In addition, we have two brigadier generals in the Army
Reserve and one in the Army Guard. They play an essential role
in ensuring the effective integration of approximately 5,000
Reserve and Guard legal personnel into a unified team, without
which we could not provide the support we give to our
commanders, soldiers, and their families.
Army commanders expect our judge advocates to be highly
versatile and proficient in the core legal disciplines and,
when deployed, to be fully competent in a variety of subjects
ranging from detainee operations, foreign claims, to
interagency collaboration in support of rule of law operations.
When they return to home station, the focus shifts, and our
judge advocates are called upon to advise on such diverse
matters as disability evaluation system, Federal litigation,
environmental law, and civilian personnel law.
To improve the responsiveness of our legal support, judge
advocates are now embedded at the brigade level and, in some
cases, even at battalion level. Army judge advocates are
committed members of the joint team. There is no doubt in my
mind that serving alongside our colleagues from the Air Force,
Navy, Marine Corps, and Coast Guard makes us more effective.
Military justice remains our core competency. Although our
court-martial rates have remained relatively stable in recent
years, with the exception of summary courts-martial, which have
decreased substantially in the last year, the complexity of
those cases we try is increasing.
We have invested considerable resources in training our
trial counsel and our prosecutors, to better prosecute cases
involving crimes of sexual assault. This has included the
appointment of 15 special victim prosecutors (SVP), with
another 8 on the way, and 5 highly qualified experts training,
coaching, and teaching those SVPs. While much work clearly
remains to be done in this area, I firmly believe we are now on
the right track.
I am also committed to improving the training of our
defense counsel to ensure that the soldiers they represent
receive effective representation.
Finally, our appellate docket is carefully managed to
ensure that we timely dispose of those cases, those courts-
martial on appeal. The success of our legal operations depends
heavily on the support of our warrant officers and our enlisted
paralegals.
I would also like to highlight the phenomenal work being
done by our civilian attorneys and paraprofessionals, who
provide essential continuity and subject matter expertise to
our home station legal offices.
In conclusion, the state of the Army JAG Corps is strong.
Recruiting and retention are at all-time highs. Morale remains
high, in spite of the fact that the Army is well into its 10th
year of sustained combat operations.
Commanders have great confidence in their judge advocates
and value the contributions they make to mission
accomplishment. I am confident in our ability to meet the
changing needs and requirements of our Army.
I am pleased to submit a more detailed written statement
for the record. Again, thank you, and I would be pleased to
answer any questions you may have.
Senator Webb. Thank you, General. Your full written
statement will be entered into the record at this point.
[The prepared statement of General Chipman follows:]

Prepared Statement by LTG Dana K. Chipman, JACG, USA

INTRODUCTION

Mr. Chairman and members of the subcommittee: Thank you for the
opportunity to discuss the provision of legal services by the
outstanding members of the Army Judge Advocate General's Corps--Active,
Guard, Reserve, and civilian--in deployed locations and at home
station. Before I begin, I want to thank you and members of this body
for your support of the men and women of our Armed Forces.

PERSONNEL OVERVIEW

The Active Army JAG Corps is comprised of 1,870 Judge Advocates, 99
warrant officers, and 1,831 enlisted paralegals. The number of Judge
Advocate position allocations has increased by 329 since September 11.
This is the result of an unrelenting demand for legal support from
commanders who operate in an increasingly complex and legally intensive
environment. Currently, there are 142 Army Judge Advocates deployed to
Afghanistan and 113 Army Judge Advocates still serving in Iraq. In
addition, there are 304 Judge Advocates serving in more than 19 other
countries in support of our Army deployed overseas.
The JAG Corps continues to attract talented lawyers through its
aggressive on-campus recruiting program, and recruited at 199 of the
American Bar Association (ABA) accredited law schools during the fiscal
year 2010 and fiscal year 2011 on-campus recruiting seasons. In fiscal
year 2010, we welcomed 164 attorneys into the Regular Army, 94
attorneys into the Army Reserve, and 93 attorneys into the Army
National Guard. As of July 15, 2011, we have accessed 151 attorneys
into the Regular Army, 79 attorneys into the Army Reserve, and 74
attorneys into the Army National Guard.
Diversity in the JAG Corps has continued to remain at high levels,
with women now accounting for approximately 25 percent of all Active
Duty Judge Advocates. Minority officers comprise about 15 percent of
the JAG Corps' active duty strength.
We have five Active component general officers providing critical
strategic oversight of our Corps while ensuring the Army's senior
leadership receives the trusted and experienced counsel it demands. On
a temporary basis, we have a sixth general officer serving in a joint
billet in Afghanistan as the Deputy Commander, Combined Joint
Interagency Task Force 435 and Commander, Rule of Law Field Force,
Afghanistan. He will soon assume new duties as the Chief Prosecutor,
Office of Military Commissions. In addition, we have two Brigadier
Generals in the Army Reserve and one in the Army National Guard. They
play an essential role in ensuring the effective integration of
approximately 5,000 Reserve and Guard legal personnel into a unified
team without which we could not provide the support we give to our
commanders, soldiers, and families.

DELIVERY OF LEGAL SERVICES

Army commanders expect their Judge Advocates to be highly versatile
and proficient. They must operate effectively within our six core legal
disciplines: military justice; international and operational law;
administrative and civil law; contract and fiscal law; claims; and
legal assistance. In addition, Army legal personnel, when deployed,
must be fully competent in a variety of subjects ranging from detainee
operations and foreign claims to interagency collaboration in support
of Rule of Law operations. When they return to home station, the focus
shifts and Judge Advocates are called upon to advise on such diverse
matters as our disability evaluation system, Federal litigation,
environmental law, and civilian personnel law.
To improve the responsiveness of our legal support, Judge Advocates
are now embedded at the Brigade level and, in some instances, at the
Battalion level. They are trusted advisors who proactively address
issues before they become problems. Army Judge Advocates are also
committed members of the Joint Team. There is no doubt in my mind that
we are most effective when serving alongside our colleagues from the
Air Force, Navy, Marine Corps, and Coast Guard, and with our dedicated
civilian attorneys as well.
The Judge Advocate General's Legal Center and School (TJAGLCS)
plays a critical role in preparing Army legal personnel to deliver
competent legal services across the spectrum of Army operations.
TJAGLCS' resident program continues to educate almost 5,000 students
per year and, in combination with non-resident programs, including
distributed learning, and onsite training for Army Reserve component
attorneys, TJAGLCS educates an increasing number of lawyers and legal
paraprofessionals annually, totaling over 18,000 students in fiscal
year 2010. In addition to teaching three Judge Advocate Officer Basic
Courses for new Judge Advocates each year, TJAGLCS conducts the ABA
recognized Graduate Course that awards a Master of Laws degree in
Military Law to career Judge Advocates, and provides continuing legal
education in over 70 functional area courses.
The U.S. Army Litigation Division provides representation to the
Army and Army officials in four areas of civil litigation: Military
Personnel Law, General Litigation, Civilian Personnel Law, and Tort
Litigation. The Army has approximately 925 active civil cases. During
the first 6 months of 2011, Litigation Division received 170 new cases
and successfully closed 162 cases. We continue to see a large number of
cases challenging military personnel decisions, official decisions by
government officials via Bivens suits, and government information
practices. The nature of our practice continues to be highly complex as
we face due process, First Amendment, and equal protection litigation,
frequent filings for information under government information practices
statutes, challenges to the Feres doctrine and the Department of
Defense's Homosexual Conduct Policy, and complicated jury trials in
employment discrimination law.
Army legal assistance services remain in high demand. During fiscal
year 2010, we opened 187,239 cases. Our largest areas of service remain
in the area of Estate Planning (54,078) and Divorce/Separations
(33,671). In assisting our clients, Army legal offices prepared a
significant number of legal documents. Powers of Attorney were the most
frequently prepared document (324,272). In addition, our legal
assistance offices prepared 41,482 wills and 2,969 separation
agreements. They also provided 328,939 notarizations and referred 2,044
clients to civilian attorneys.
Army legal assistance personnel, together with unit tax advisors,
temporary employees, and volunteers prepared and filed 121,834 Federal
and 76,697 State income tax returns during the tax filing season. More
than 90 percent of the Federal income tax returns were filed
electronically. The soldiers, retirees, and family members who visited
our Tax Assistance Centers saved over $32,750,000 in tax preparation
and filing fees last year. Every year, legal assistance services
collectively save our clients substantial fees they would otherwise
incur if purchasing the advice and services. Using average national
costs of selected services provided by the ABA Standing Committee of
Legal Assistance for Military Personnel, legal assistance offices saved
our clients over $86,250,000 in legal fees (including the above
mentioned over $32,750,000 in tax return preparation fees) in fiscal
year 2010.
Enhancing legal support to soldiers processing through the Medical
Disability Evaluation System (DES) remains an important focus area. In
fiscal year 2010, we had 26 counsels serving as Soldier's Physical
Evaluation Board Counsel and 23 serving as Soldier's Medical Evaluation
Board Counsel (SMEBC). They were supported by 36 paralegals. Of these,
27 counsel and 16 paralegals are Reserve component soldiers mobilized
to support this critical mission. The recent establishment of the SMEBC
function has been extremely successful. By providing counsel earlier in
the DES process, we more clearly identify the medical conditions to be
addressed in the process, ensure appropriate documentation of the
conditions, assist Soldiers in better understanding the system and help
them have reasonable expectations of the likely results of their case.
This has resulted in more complete case files moving forward for
adjudication, better results for soldiers and a reduction in the number
of formal Physical Evaluation Boards being requested by soldiers.
The U.S. Army Claims Service (USARCS) and claims offices worldwide
continue to vigorously examine and settle meritorious claims against
the U.S. Army brought under the Federal Tort Claims Act, the Personnel
Claims Act, the Foreign Claims Act, and other statutory authority. In
fiscal year 2010, USARCS oversaw payment of over $8.6 million in claims
to Iraqi civilians under the Foreign Claims Act, a $31 million decrease
from the previous year. In fiscal year 2010, USARCS administered the
payment of over $3.1 million in claims to civilians in Afghanistan
under the Foreign Claims Act, a significant increase from the previous
year when less than half this amount was paid. Also during fiscal year
2010, USARCS paid more than $5 million in household goods claims and
over $21 million in tort claims. Army claims offices also processed a
total of $22.4 million in medical care recovery claims in fiscal year
2010.

MILITARY JUSTICE

Military justice remains our core competency. During fiscal year
2010, there were 620 trials by general court-martial and 454 trials by
special court-martial. In addition, there were 667 trials by summary
court-martial. The number of non-judicial punishments completed during
fiscal year 2010 was 36,624.

----------------------------------------------------------------------------------------------------------------
Fiscal Year
-----------------------------------------------------------
2006 2007 2008 2009 2010
----------------------------------------------------------------------------------------------------------------
General Court-Martial (CM).......................... 750 811 674 631 620
Special CM.......................................... 583 639 488 523 454
Summary CM.......................................... 1,160 1,223 1,279 1,040 667
Total CM............................................ 2,493 2,673 2,441 2,194 1,741
CM Rate Per 1,000 Soldiers (Not incl SCM)........... 2.64 2.78 2.16 2.11 1.90
Nonjudicial Punishment (NJP)........................ 43,813 45,239 46,063 35,210 36,624
NJP Rate Per 1,000 Soldiers......................... 86.69 86.66 85.60 64.37 64.70
Army Active Duty Strength........................... 505,402 522,017 538,128 547,000 566,045
----------------------------------------------------------------------------------------------------------------

Although court-martial rates have remained relatively stable in
recent years, with the exception of Summary Courts-Martial, the
complexity of cases is increasing. We have invested considerable
resources in training our Trial Counsel to better prosecute cases
involving crimes of sexual assault. This has included the appointment
of 15 Special Victim Prosecutors (SVPs), with an additional 8 SVP
positions recently approved, and 5 highly qualified experts. While much
work clearly remains to be done in this area, I firmly believe we are
now on the right track.
I am also committed to improving the training of U.S. Army Trial
Defense Service (TDS) counsel so that our soldiers receive the
effective representation they deserve. Currently, more than 400 Active
and Reserve component attorneys serve in TDS worldwide, to include over
20 in U.S. Central Command deployed to Iraq, Afghanistan and Kuwait and
over 30 mobilized in support of defense operations worldwide. The
Defense Counsel Assistance Program plays a centralized role in ensuring
that defense counsel and paralegals have the necessary skills and
knowledge base to represent their clients in an effective manner.
Finally, our appellate docket is carefully managed to ensure the
timely disposition of courts-martial cases on appeal. The Army Court of
Criminal Appeals post-trial processing systems and those of the
Government and Defense Appellate Divisions are adequate to comply with
the standards contained in the Uniform Code of Military Justice and
applicable case law.

CONTRIBUTIONS OF OTHER MEMBERS OF JAG CORPS TEAM

The success of our legal operations relies heavily on the
outstanding support of our warrant officers and enlisted paralegals.
Their selfless dedication and commitment are truly impressive. I would
also like to highlight the phenomenal work of our civilian attorneys
and legal paraprofessionals who provide essential continuity and
subject matter expertise in our home station legal offices.

CONCLUSION

In conclusion, the state of the Army JAG Corps is strong.
Recruiting and retention are at all-time highs. Diversity is expanding
as more women and minorities serve as Judge Advocates. Morale remains
high in spite of the fact that the Army is now entering its 10th year
at war. Commanders have great confidence in their Judge Advocates and
value the contributions they make to mission accomplishment. We are a
flexible and adaptive Corps. I am confident in our ability to meet the
changing needs and requirements of our Army.
I would like to thank you again for the opportunity to appear
before you today and your continued support for the soldiers and
families of America's Army.

Senator Webb. Admiral Houck, welcome.

STATEMENT OF VADM JAMES W. HOUCK, JAGC, USN, JUDGE ADVOCATE
GENERAL OF THE U.S. NAVY

Admiral Houck. Good afternoon, Mr. Chairman and Senator
Graham, and thank you both for your interest in holding this
hearing and your concern for our uniformed legal communities.
Also thank the members of the 506 panel, Chairman
Dell'Orto, General Osman, and the other members of the panel
who dedicated pro bono hundreds of hours to the project, and we
were very grateful for their support.
I would like to make three points briefly this afternoon.
The first one being, I think it is imperative that we get the
right number of judge advocates in all the Services, but in my
case, in the Navy JAG Corps. I think there are risks if we
don't. There is a risk if we have too many. In this climate
today, I know that our Secretary and our Chief of Naval
Operations (CNO) and many others are working very hard to
reconcile a lot of competing demands.
Having said that, I think there are also risks in having
too few. I think the risks are relatively obvious, and I won't
belabor those. I see my job, as precisely and carefully as I
can, to assess the requirement for judge advocates. Then as
clearly and, when necessary, as forcefully as I can to
articulate that requirement to decisionmakers to make sure that
they are aware of that.
The second area that I think really bears emphasis is not
only the number of judge advocates we have, but the things that
go into making up the health of our community--things like the
recruiting and retention, things like the resources and time
that we have to do education and training for our judge
advocates, and as we in the Department of the Navy and as the
committee may look at various structures for how we address the
authorities and alignment for the provision of our legal
services, that whatever option we adjust, that we make sure
that we maintain a leadership structure in place that is
adequate for a law firm the size and scope of our Navy JAG
Corps.
I think the last thing I would like to touch on is to the
imperative that we account for and adjudicate in a timely way
all our courts-martial cases, from the moment charges are
brought to the very last day of the last appeal. We are doing
that in the Department of the Navy today. We are doing that
through case tracking systems that--I would echo General
Osman's comments--they are working for us today.
There are things we can improve in them, but the
combination of these systems, as well as the focused, hands-on,
eyes-on leadership at senior levels on these cases is--and to
respond to your question, Senator, there is a sense of urgency
to make sure that the debacle which was the Foster case never
happens again.
We have also made great progress in the time in which we
adjudicate cases. There are different metrics to look at this,
but I think one which is significant is that in 2004, which was
right before the Court of Appeals for the Armed Forces decided
the Moreno case, it was taking the Department of the Navy over
800 days from the time somebody was convicted to the time their
appeal was finished. Today, that number is just above 300 days,
and that is against a standard that is close to 700 days--about
690 days as established by the Court of Appeals for the Armed
Forces.
So, from a variety of different ways, we could talk about
the measurements of it. But the point that I want to make is
that we take in the Navy, and I take personally as the JAG of
the Navy, our trusteeship of the military justice system
seriously and personally, and we are very focused on it.
I guess by way of final note and to just respond to a
couple of the questions that you all put to the panel that was
here, I would note that we are looking very carefully at case
tracking systems and have learned a lot from a study that was
done for us by the Center for Naval Analysis. We are in the
process of looking at options right now, but it is very much a
priority for us to get a common case tracking system in the
Department of the Navy. I know the Secretary is committed to
it, and we are looking at it hard and moving forward on that
front.
Our courts-martial rate is obviously the lowest of the
Services. But I think the Foster case taught us, and I agree
with Mr. Dell'Orto on this point, that it doesn't matter what
number of cases that you have, if you don't handle one of them
properly, and Foster is the best object lesson of that that we
have seen, it casts a shadow over the entire military justice
system. So, again, we have taken many steps, which I can
respond to in the questions, to address this issue.
Thank you, Mr. Chairman.
[The prepared statement of Admiral Houck follows:]

Prepared Statement by VADM James W. Houck, JACG, USN

Thank you for inviting me to testify before your committee on the
requirements of the Navy Judge Advocate General's Corps, the status of
implementation of the recommendations of the Independent Review Panel
to Study Judge Advocate Requirements of the Department of the Navy
(``the Panel''), and post-trial review processes within the Department
of the Navy.
Over the past decade, the Navy JAG Corps has experienced an
increased demand for our legal services. I believe this is consistent
with the aggressive operational tempo of our force as well as an
overall increased sensitivity to legal concerns. In the face of this
increasing demand, the Navy must have enough judge advocates to meet
the complete spectrum of legal missions it faces today. Without
sufficient judge advocates, commanders run the risk of failing to have
important legal issues recognized and addressed in a timely manner.
There is also a risk that analysis will lack rigor and ingenuity
because existing assets are spread too thin, and, that judge advocates
will not have sufficient time to continue their education and training.
Based on the Navy JAG Corps' current missions, and, consistent with
my testimony before the Panel last September, I believe the Navy
requires a base force of 821 judge advocates, plus, the judge advocates
necessary to meet the demands posed by assignments to Individual
Augmentee (IA) missions and the Office of Military Commissions (OMC).
Currently, 73 Active component and 31 Reserve component judge advocates
are assigned to IA and OMC missions.
Today, there are 866 judge advocates on active duty. This consists
of 835 Active component judge advocates, plus 31 Reserve component
judge advocates serving under active duty orders in support of IA and
OMC assignments. Under the current Navy program, the Navy budgeted for
801 Active component judge advocates on active duty by the end of the
fiscal year. This is based upon community endstrength as determined by
the Chief of Naval Personnel through the budget process.
The Department of the Navy intends to increase the number of Active
component JAG Corps billets to 821 across the Future Years Defense
Program (FYDP). This increase does not require statutory authority,
only funding. In fiscal year 2011, the Navy's program of record was to
decrease our JAG Corps officers from 801 to 745 by fiscal year 2016.
Navy leadership has now indicated an intent to fund, within the Navy's
baseline budget, an additional 31 JAG Corps billets through fiscal year
2015 which are currently detailed to the OMC at least through the end
of fiscal year 2012, and to provide the additional increases necessary
to fund the 821 JAG Corps officers required to meet baseline
requirements over the FYDP.
I realize that essential JAG Corps growth must be weighed against
other important requirements, especially in the current fiscal
environment. I believe that 821 is the minimum number of officers
needed to meet emerging requirements and mitigate legal risk to the
Navy. We continue to look for internal structure changes that will
allow us to realign resources to meet demand. In addition, we have also
begun to train enlisted members of the Legalman rating to obtain
certification through the American Bar Association as paralegals, which
will gradually ease the administrative burdens currently levied on JAG
Corps officers. To address the expanded rights to legal assistance for
wounded, ill, and injured servicemembers processed through the
Disability Evaluation System, for fiscal year 2012, we are hiring
permanent civilian attorneys to ensure sustained legal support and
assistance to our wounded, ill, and injured sailors. These civilian
attorneys will be augmented by Reserve judge advocates in fiscal year
2012, but we are working to fully civilianize the support over the next
several fiscal years. We are focused on making a smooth transition and
ensuring compliance with the law and Department of Defense direction.
The Panel commented that maintaining a strong judge advocate
community will require continued focus on recruiting; continued support
for Navy Judge Advocate Continuation Pay (JACP); and continued support
for post-graduate education. Even in a challenging budget environment,
Navy leadership has strongly supported all of these important programs.
The JAG Corps received $70,000 in support from Commander, Navy
Recruiting Command in fiscal year 2011 and our applications for
commissions have, since fiscal year 2009, remained at historically high
levels (over 900 annually). I also note that we ask our judge advocates
to devote a considerable amount of time to personally participate in
recruiting activities. Law school administrators--and, more
importantly--law students, tell me our judge advocates are the best
representation of our Corps.
The Chief of Naval Personnel approved funding for JACP at existing
levels through fiscal year 2012. In addition, the Navy will fund
postgraduate education for 25 judge advocates in the 2011-2012 academic
year at the very best law schools in the United States. I testified
before the Panel that increases in JACP and providing postgraduate
education opportunity for 30 judge advocates annually would be optimal.
However, the amount of funding for these programs in fiscal year 2012
is sufficient to meet our immediate requirements. Especially when
viewed in the context of potential future Navy budgets, I believe the
amount that will be funded in fiscal year 2012 represents a strong
commitment from Navy leadership to maintain a first-rate, mission-ready
JAG Corps.
For years, we have stressed the value of obtaining Joint
Professional Military Education (JPME). In the coming months, I intend
to formalize JPME guidance through JAG Corps Instruction, placing
emphasis on and strongly encouraging judge advocates to complete JPME
Phase I as part of JAG Corps training requirements. Our approach will
be geared toward meeting the Chairman's learning objectives as well as
assisting Navy leadership in assessing the desire to formalize judge
advocate participation in the joint officer management program and
joint qualification system.
Our Navy JAG Corps has no more important mission than providing a
fair, effective, and efficient military justice system for our
commanders and personnel. Military justice is our statutory mission. We
are intensely focused on upholding this special trust.
Within the Department of the Navy, effective court-martial post-
trial processing is being fully achieved at the local level in Navy and
Marine Corps legal offices, and at the appellate level in the Navy and
Marine Corps Appellate Review Activity, and the Navy Marine Corps Court
of Criminal Appeals.
Improvements over the course of the last several years in post-
trial and appellate case processing have been institutionalized in
standing. On 25 April 2011, the Secretary of the Navy approved
Secretary of the Navy Instruction 5430.27D, ``Responsibility of the
Judge Advocate General of the Navy and the Staff Judge Advocate to the
Commandant of the Marine Corps for Supervision and Provision of Certain
Legal Services.'' The instruction formalized the requirement for the
Judge Advocate General to provide an annual report to the Secretary of
the Navy, the Chief of Naval Operations and the Commandant of the
Marine Corps on the state of military justice within the Department of
the Navy. This directive also institutionalized the Military Justice
Oversight Council, which we initiated in November 2009. The Council is
chaired and convened by the Judge Advocate General and co-chaired by
the Staff Judge Advocate to the Commandant of the Marine Corps. The
Council meets monthly to evaluate the practice of military justice and
the effectiveness of the military justice system. The Council monitors
individual cases through reports about any case at risk to exceed
processing guidelines promulgated by the Court of Appeals of the Armed
Forces (CAAF). Likewise, we have reinforced this process with a series
of uniform policies and standards to ensure consistency across the
force.
Given the improvements in structure, operating procedures, case
tracking and oversight, I am confident we have a military justice
process that works as intended. The Navy and Marine Corps now
consistently process cases within the CAAF guideline of 150 days from
sentencing to docketing at Navy-Marine Corps Court of Criminal Appeals.
Those few cases that have not met that guideline are individually
tracked and the reasons for delay are documented for consideration by
the appellate courts. At the Navy-Marine Corps Court of Criminal
Appeals, no case in fiscal year 2010 exceeded the 18-month appellate
processing timeline from docketing to decision by that court, and none
of the cases decided or docketed and pending review in this fiscal year
exceed that time.
As a result of the actions we have taken over the past several
years, I am confident we know the status of all Active Navy and Marine
Corps court-martial cases in the trial and post-trial process. We are
successfully tracking all our cases.
The Navy monitors its post-trial process at the local level through
the Case Management Tracking Information System (CMTIS). The Marine
Corps tracks post-trial processing of courts-martial using the Case
Management System (CMS). The processing of appeals is a departmental
mission. Both Navy and Marine Corps cases pending appellate review are
monitored with CMTIS, which tracks each case throughout the appellate
process, from docketing to final disposition. The overlap of CMTIS and
CMS provides the department with visibility over all courts-martial
cases from sentencing to appellate decision, but it is not optimal in
that these systems do not provide a consolidated view of the status of
all cases pending within the department.
The Secretary of the Navy has committed to development of a unified
case-tracking system for the Navy and Marine Corps. A joint effort is
currently underway to formally establish a new acquisition program in
the departmental budget process for a common case-tracking system. On 4
November 2010, the Assistant Secretary of the Navy (Research,
Development and Acquisitions) (ASN (RDA)) assigned the Program
Executive Office for Enterprise Information Systems (PEO EIS) the
program management and acquisition responsibility for development of a
web-based information system that includes a single case tracking
system. ASN (RDA) directed PEO EIS to work with stakeholders within the
Department of the Navy to validate system requirements; establish roles
and responsibilities; develop an acquisition timeline and activities;
conduct market research in support of Business Case Analysis approach;
and prepare the required acquisition documentation in support of the
POM 13 budget cycle. I look forward to working with the Marine Corps
and other stakeholders to achieve the Secretary's goal.
In summary, we need to ensure sufficient numbers and quality of our
judge advocates so that we are able to fulfill all our missions
effectively and efficiently. In particular, we remain steadfastly
committed to ensuring that our military justice system operates to the
highest standards. I thank the committee for its continued interest in
the legal practice within the Department of the Navy, your support of
our men and women in uniform, and I look forward to taking your
questions.

Senator Webb. Thank you, Admiral Houck, and your bold
statement will be entered into the record at this point.
General Harding, welcome.

STATEMENT OF LT. GEN. RICHARD C. HARDING, JAGC, USAF, JUDGE
ADVOCATE GENERAL OF THE U.S. AIR FORCE

General Harding. Thank you, Mr. Chairman.
Mr. Chairman, members of the subcommittee, thank you for
the opportunity of testifying this afternoon.
I am very proud to lead the Air Force JAG's Corps with over
4,000 outstanding judge advocate, civilian attorney, enlisted
and civilian paralegals, and civilian support staff. Our
mission is to deliver professional, candid, and independent
counsel and full-spectrum legal capabilities to the command and
commanders and to the warfighter.
The committee's invitation to testify today asked that I
offer my opinion on the effect of the recent organizational
changes eliminating judge advocate brigadier general officer,
or 0-7, billets in the Air Force. Therefore, I will offer my
personal opinion regarding the 14 March 2011 the Office of the
Secretary of Defense-directed elimination of three of our four
Air Force JAG 0-7 positions.
My opinion is identical to that of my Service's chief of
staff. We both believe that the three 0-7 positions in question
should be held by officers at the grade of brigadier general.
These three general officers support at a corporate
leadership level three centers of gravity for our Air Force--
first, the Air Force's logistics and maintenance complex;
second, its combat air forces; and third, its mobility air
forces. The three general officer positions are staff judge
advocates for Air Force Materiel Command, Air Combat Command,
and Air Mobility Command. Their job descriptions are contained
in my statement, which was previously submitted to the
committee.
These three 0-7s provide more than just routine
administrative legal advice to their major command commanders.
They provide corporate legal advice on weighty issues facing
the Air Force in the three centers of gravity I mentioned
earlier.
Their advice shapes strategy and planning at very high
levels in the Air Force. They sit on their commanders' senior
staffs, joining between 8 and 11 other general officers and
civilian equivalents, depending on the major command, in
corporate leadership settings. Their 0-7 rank assures they have
a seat at the table during sensitive important deliberations of
their commanders' senior staff.
Additionally, the three 0-7 positions provide professional
supervision to over 1,500 JAG Corps personnel, delivering legal
services to 300,000 total force personnel assigned to those
three Air Force centers of gravity.
The effect of the general officer cuts on the Air Force is
significant. Career progression opportunities in the Air Force
JAG's Corps has been significantly degraded by the elimination
of these three 0-7 billets. As a direct consequence, the cuts
will increase attrition among our best retirement-eligible
colonels on whom we must rely to lead significant field legal
operations.
As a result of the elimination of these three 0-7 billets,
Air Force JAG colonels have noted that their chances of making
0-7 have been reduced by 75 percent, leaving behind a single 0-
7 position to be selected every 4 years as the JAG's and the
Deputy JAG's statutory tours end. The incumbent brigadier
general is likely selected for promotion, resulting in a single
brigadier general vacancy.
If not selected for the single 0-7 billet, rather than wait
another 4 years for another opportunity to compete for
promotion, many of our best JAG colonels will elect to retire,
leaving the Air Force without the legal leadership it needs
and, frankly, deserves.
By having only a single brigadier general position
remaining in the Air Force JAG Corps, the incumbent in the
remaining 0-7 billet essentially becomes the TJAG in waiting,
the heir apparent. Optimal force models are structured like a
pyramid. They provide competition----
Senator Webb. General Harding?
General Harding. Yes, sir?
Senator Webb. No offense, but let the record show that you
personally don't like this new policy. Do you have any sort of
official presentation to give us?
General Harding. The official presentation was offered in
my statement earlier, sir.
Senator Webb. All right. Thank you very much.
Your official statement will be entered into the record.
[The prepared statement of General Harding follows:]

Prepared Statement by Lt. Gen. Richard C. Harding, JAGC, USAF

I have served as the Air Force's 16th Judge Advocate General since
23 February 2010. I am pleased to report to you today that the state of
the Air Force JAG Corps is strong. This past year has been one of the
most rewarding of my career as I have watched our Corps flourish in the
execution of our mission for the Air Force.
The Air Force JAG Corps is currently comprised of 4,390 total force
personnel. Of this total, 3,126 are either active duty personnel or
full-time civilian personnel. The remaining 1,264 are judge advocate
and paralegal members of the Air Force Reserve and Air National Guard.
The Air Force JAG Corps' mission is to deliver professional,
candid, independent counsel and full spectrum legal capabilities to Air
Force and joint commanders and their staffs. Members of the Air Force
JAG Corps are involved in the full range of operations from peacetime,
through war, to stabilization and reconstruction efforts. Our varied
fields of practice demand that we apply the Air Force's traditional
ability to adapt quickly to changing requirements. Our fields of
practice include military justice, contract law, environmental law,
labor law, Federal administrative law, defense of tort and other civil
suits against the Air Force, legal assistance for airmen and their
families, international law, and operations law to include the law of
air, space and cyberspace.
Today's uncertain international security and evolving legal
environment requires the Air Force JAG Corps adopt a balance-driven
approach. We must overcome today's challenges while simultaneously
preparing for tomorrow's. At present, Air Force judge advocates and
paralegals are deployed all over the world in support of combatant
commanders' requirements. We provide timely, responsive, and thorough
legal advice to Air Force commanders and their airmen whether in
austere conditions half a world away or at their home stations.
The Air Force is organized into functional major commands (MAJCOMs)
led by 0-10 commanders. MAJCOM Staff Judge Advocates (SJAs) serve as
the most senior, ranking attorney on a MAJCOM Commander's staff. They
advise on a myriad of legal issues that face the MAJCOM Commander and
his staff. MAJCOM SJAs are some of our most seasoned legal
professionals, each possessing 20+ years of JAG experience. Three of
our four Air Force JAG 0-7s (brigadier general) serve as SJAs in three
of the Air Force's most vital MAJCOMs: Air Combat Command (our
functional lead command for combat air forces), Air Mobility Command
(our functional lead command for mobility air forces) and Air Force
Materiel Command (our functional lead command for procurement of major
weapons systems, logistics, and sustainment). These SJAs provide
valuable legal advice on the most complex legal issues facing the Air
Force today:
The ACC SJA advises the ACC Commander, who serves as the combat air
forces lead agent for all combat forces across the Air Force. Those
forces are engaged in on-going combat operations; The SJA provides
counsel on such matters as the law of armed conflict, international
agreements, disciplinary matters, contract law, environmental law,
civilian personnel law, and any other legal issue confronting this
vital command, all while providing professional supervision to over 600
JAG Corps personnel, who deliver legal services to over 133,000
personnel assigned to ACC.
The AMC SJA advises the AMC Commander on joint operational and
policy matters such as command responsibilities for developing and
maintaining a national industrial mobilization base for airlift and
aerial refueling. The AMC SJA also serves as legal advisor to the
general officer level Commercial Airlift Review Board, which by statute
is charged with safety oversight and DOD certification of over 150 U.S.
and foreign carriers under contract with the Department of Defense. In
addition, the AMC SJA provides professional supervision to over 465 JAG
Corps personnel, who deliver legal services to over 135,000 personnel
assigned to AMC.
The AFMC SJA serves as legal advisor to the AFMC Commander and
provides legal oversight in the Air Force acquisition process for major
weapons system procurement, sustainment, and research. It is vitally
important that the Air Force maintain the highest scrutiny over our
acquisition processes and programs including international systems
acquisitions. The AFMC SJA is responsible for providing legal advice on
the expenditure of enormous financial resources and assists in the
prevention of fraud, waste, and abuse of resources. In addition, the
AFMC SJA provides professional supervision to over 448 JAG Corps
personnel, who deliver legal services to over 75,000 personnel assigned
to AFMC.
The fourth Air Force JAG 0-7 is the Commander of the Air Force
Legal Operations Agency (AFLOA), a worldwide field operating agency.
AFLOA is comprised of over 800 total force JAG Corps personnel.
Accordingly, AFLOA is the parent command for approximately 24 percent
of our worldwide JAG Corps personnel and is responsible for supervising
the administration of military justice senior trial counsel
(prosecutors), defense counsel, and appellate counsel; 11 field support
centers; civil litigation counsel; the Air Force JAG School; and the
Air Force Legal Information Services Directorate.
The other seven MAJCOM SJAs are senior JAG colonels. Those MAJCOMs
are Air Education and Training Command; Air Force Global Strike
Command, Air Force Reserve Command, Air Force Space Command, Air Force
Special Operations Command, Pacific Air Forces, and U.S. Air Forces in
Europe.
In closing, I would like to emphasize that our Nation has achieved
much success in international armed conflict because we bring four
crucial elements to every conflict. First, we recruit some of our best
citizens into our Armed Forces. Second, we give them the best military
training available anywhere on the planet. Third, we provide them the
best available equipment to win in war. But those are only three legs
of a four-legged table. Without the fourth leg, the table wobbles and
falls. The fourth leg is discipline. Without discipline, great people,
great training, and great equipment are not enough to win in war.
Military discipline is an indispensible element for any effective
fighting force. As the stewards of the Uniform Code of Military
Justice, whose purpose is to protect and enhance good order and
discipline, judge advocates the servicemembers, their training and
their equipment together with military discipline. The Air Force JAG
Corps and the JAG Corps of our fellow Services safeguard good order and
discipline in the U.S. Armed Forces, take care of the legal needs of
airmen, soldiers, sailors, and marines, and ensure that our Services
carry the rule of law with them wherever they deploy. In that very real
sense, we are combat force multipliers, upon whom the Nation's success
in armed conflict relies.
Thank you for the opportunity to appear before you today.

Senator Webb. General Ary, welcome.

STATEMENT OF MAJ. GEN. VAUGHN A. ARY, USMC, STAFF JUDGE
ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS

General Ary. Good afternoon, Mr. Chairman, Senator Graham,
and distinguished members of the subcommittee.
Thank you for the invitation to testify this afternoon. I
am happy to be here representing our corps and the over 1,400
remarkable men and women who make up our Active, Reserve, and
civilian Marine legal community.
In the summer of 2009, Congress expressed serious concerns
about the Navy-Marine Corps legal community, directed the DOD
IG to evaluate our post-trial processes and procedures, and
directed the convening of the independent panel, the 506 panel.
The Marine Corps interpreted your concerns as a call to
action. We immediately began a hard, honest assessment of our
legal community, who we are, how we lead and are organized, and
how we deliver legal services to commanders, marines, sailors,
and families.
Our assessment validated that the most effective legal
model for our corps relies on marine judge advocates and legal
service specialists who are marines first, fully integrated
into the marine ethos and culture. Our basic model for the
provision of legal support is strong, but we identified
challenges that needed to be addressed.
We continue to believe in a command-driven system, but
recognized that complete decentralization poses unacceptable
risk. To reduce that risk, we need unified direction for our
practice, striking a balance between uniformity of policies and
procedures and decentralized execution. We have chosen to
emphasize efficiency, with a focus on institutional processes
and supervision that will produce enduring results.
To accomplish this, we also needed to adapt our
organizational leadership model. We accepted responsibility for
what the DOD IG found to be ``failures in leadership,
supervision, and oversight at all organizational levels.''
For the Marine Corps, the Staff Judge Advocates (SJA) to
Commandant, U.S. Marine Corps (CMC) could no longer act simply
as a staff judge advocate to a Service Chief. The billet had to
take on a greater role leading the Marine legal community.
As part of assuming that role, my office published a
strategic action plan in July 2010, setting a course to elevate
the practice of law throughout the Marine Corps. We set five
strategic goals: set standards, train to those standards,
inspect to those standards, examine and adapt the force to
achieve those standards, and memorialize what we have learned
in doctrine.
Our goals were designed to achieve our essential mandate--
to provide quality legal services to every commander, marine,
sailor, and family member and, in particular, to ensure that
every marine who enters our military justice system receives
the due process to which they are entitled.
Over the past 18 months, the Marine Corps has implemented a
number of initiatives that are designed to accomplish these
five goals. There are four that best illustrate our direction:
our case management system, an enhanced inspection program, a
military justice counsel assistance program, and doctrine
development.
We first set out to guarantee accountability for each
military justice case. We developed a case management system
over the course of 6 months, at a cost of roughly $60,000. We
implemented it Marine Corps wide in February 2010.
Our case management system provides a secure, Web-based,
real-time case tracking database that has produced immediate
results by providing a common operating picture, with complete
visibility over every case at every stage of the service level
process and by eliminating gaps previously caused by a variety
of incompatible systems.
To enhance transparency and accountability, we created a
more robust inspections regime. We developed more exacting
Article 6 inspection requirements, and for the first time, we
instituted a legal office inspection program into the
Commanding General's Inspection Program (CGIP).
The CGIP inspections, conducted by subject matter experts,
provide commanders and their staff judge advocates metrics by
which to gauge the performance of their legal organizations. By
the end of this year, I will have personally inspected almost
every Marine legal office worldwide.
We focused another initiative on strengthening our courts-
martial practice in our primary statutory mission. Declining
numbers of special courts-martial and competing operational
demands have degraded this core competency as the complexity of
the cases we are trying continues to increase.
Our chief defense counsel responded to this trend by
leveraging technology to establish a worldwide virtual law firm
and create a community of practice that has elevated the
defense organization.
On the prosecution side, we followed suit, and by using the
Army's TCAP as a guide, we stood up a Trial Counsel Assistance
Program. Our TCAP provides training and resources to assist
Marine prosecutors using a number of tools, including onsite
training, video teleconferencing, and a SharePoint litigation
support Web site.
Lastly, to ensure that we institutionalize the lessons
learned and best practices in all legal services areas, we
began the process of updating our doctrine for the provision of
legal services in the Marine Corps. Concurrent with our
assessment of legal services, we continued to assess our
manpower requirements, including realigning and increasing
structure and shaping and increasing inventory.
The independent panel recommended a target total Active
component inventory of 550 judge advocates. That includes both
certified judge advocates and our student judge advocates.
Today, our total Active component inventory of certified
and student judge advocates exceeds the panel's recommended
target and includes 508 certified judge advocates, the largest
number we have ever had.
We have taken the initiative within the Service to address
deficiencies that required immediate attention. If these and
other initiatives are to endure, I believe there must be
institutional reform.
In the future, it should be clear who is accountable for
supervising the provision of legal support in the U.S. Marine
Corps, and the accountable officer should be the SJA to CMC.
This billet must be clearly assigned responsibility and
authority for supervising the service legal mission.
In closing, I would say that the future of our Marine legal
community is bright. The current generation of judge advocates
and legal service specialists is uniformly better qualified
than we were a generation ago.
I believe we owe it to them to maintain a professional
legal community dedicated to meeting the high standards of our
corps with strong, enduring mechanisms for responsibility and
accountability. Moreover, we owe our commanders and marines the
best possible advice, representation, and legal services.
Based on the direction we are taking, I am firmly convinced
that we are positioning ourselves to best serve the Marine
Corps, the Department of the Navy, and DOD.
I have submitted a more detailed statement for the record,
and I look forward to any questions that you might have.
Senator Webb. Thank you very much, General. Your full
written statement will be entered into the record at this
point.
[The prepared statement of General Ary follows:]

EXECUTIVE SUMMARY

A Call to Action
In August 2009, Congress's direction to convene an Independent
Panel to Review Judge Advocate Requirements in the Department of the
Navy (``506 Panel'') and a contemporaneous Department of Defense (DOD)
Inspector General's (IG) inquiry served as a clear call to action for
the Marine Corps. In response, we conducted a comprehensive study of
the provision of legal support within the Service, leading to several
overarching conclusions.
First, the Marine Corps needs command-oriented, organic legal
support, provided by Marine judge advocates, who are integrated,
unrestricted Marine Air-Ground Task Force officers. As uniformed legal
support requirements are command-driven, and execution is command-
oriented, there is an inherent, intangible benefit to having a legal
organization of Marines providing legal support that is responsive to
the Service's unique history, leadership philosophy, and operational
characteristics. Second, over the past two decades our legal mission
has evolved in scope, intensity, and complexity. Legacy structure and
doctrine, a philosophy of maximum decentralization, and a limited role
for the Staff Judge Advocates (SJA) to Commandant, U.S. Marine Corps
(CMC) have limited our ability to adapt and respond to evolving
requirements. Third, to meet the challenges of a more complex, future
legal environment, we need to develop higher levels of individual
proficiency and organizational efficiency, which in turn requires a
greater degree of supervision, centralization and uniformity.
The conclusions of our assessment are captured in our July 2010
Strategic Action Plan, which establishes a series of initiatives to
accomplish five overarching goals: (1) set standards, (2) train to
those standards, (3) inspect to those standards, (4) examine and adapt
the force to achieve those standards, and (5) memorialize what we have
learned in doctrine.

THE 506 PANEL REPORT

The conclusions in the 506 Panel's report of 22 February 2011 are
largely consistent with our own determinations. To the extent the Panel
recommended action at the Service level, the recommended reforms are
underway in the Marine Corps. Implementation of the remaining
recommendations require Departmental action.

Manpower Requirements
The 506 Panel concluded that ``[t]he Marine Corps' programmed
target inventory of approximately 550 judge advocates over the next 5
years will be sufficient to fulfill the legal requirements of the
Marine Corps, as well as to preserve the ability of Marine judge
advocates to serve in non-legal billets, maintaining their role as
well-rounded Marine Air-Ground Task Force officers and contributing to
the broader Marine Corps mission.''

JAG Authority over USMC Manpower Policies and Assignments
The Marine Corps concurs with the 506 Panel's recommendation
against providing additional authority for the JAG over manpower
policies and assignments of judge advocates in the Marine Corps.

Court-Martial Case Tracking System
The DOD IG and the 506 Panel each concluded that the DoN should
employ a single case tracking system that can track cases from the
preferral of charges or imposition of pretrial restraint through
appellate review. The Marine Corps currently has a single, Service-wide
case tracking system that effectively accomplishes its singular goal--
to protect the due process rights of every accused Marine through
accurate and reliable case tracking. Although currently limited to
Marine Corps cases (75 percent of DON total), the Marine Corps Case
Management System (CMS) could be adapted to track all DON cases through
completion of appellate review. CMS was developed in 6 months and
implemented at a total cost of $60,000. Its use was mandated Service-
wide on 1 February 2010 CMS effectively and efficiently accomplishes
the purpose for which it was designed. Since implementation, the
average processing time for Marine Corps cases from date of sentencing
to receipt of the record of trial by the appellate court has gone from
119 days to 87 days, and the number of cases in the post-trial process
that exceeded 120 days from the completion of trial to convening
authority's action has dropped from 41 cases in February 2010 to less
than a handful today.

Military Justice Oversight
The Secretary of the Navy signed SECNAVINST 5430.27D on 25 April
2011 institutionalizing the annual military justice report requirement
and the Military Justice Oversight Council, consistent with the 506
Panel's recommendation.

Requirements for Complex Cases
The Marine Corps stood up the Trial Counsel Assistance Program
(TCAP) in May 2010, and has since sponsored three regional TCAP
Training Conferences. Since fiscal year 2010, the SJA to CMC has
sponsored an annual Victim-Witness Assistance Program (VWAP) Training
Conference, attended by VWAP representatives from every Marine Corps
base. JAD is actively involved in developing policy and advising and
training judge advocates with respect to the prevention of and response
to allegations of sexual assault.

Operational Law Requirements
The 506 Panel concluded that operational law requirements can be
expected to double over the next decade, and recommended that the
Marine Corps consider measures to expand opportunities for senior
Marine judge advocates to compete for senior legal positions within the
joint community. The SJA to CMC is proposing measures within the Marine
Corps to enhance the joint experience base and, thus, create greater
opportunities for senior Marine judge advocates to compete for senior-
level joint billets.
Support to the Office of Military Commissions
The Deputy Secretary of Defense directed the extension of Office of
Military Commissions (OMC) manning requirements through the end of
fiscal year 2015. By September 2011, there will be 13 Active and
Reserve Marine Corps judge advocates at the OMC, including one of our
most experienced colonels who is serving as the Chief Defense Counsel
for OMC.

Support to the Disability Evaluation System
The Marine Corps has mobilized eight Reserve component Marine judge
advocates to support Disability Evaluation System (DES). In conjunction
with Navy JAG, we are currently examining a long-term plan for
providing DES support. The Navy JAG anticipates hiring civilian
Informal Physical Evaluation Board attorneys. Additionally, the SJA to
CMC is proposing the addition of five permanent structured billets at
wounded warrior regiments.

Clarifying and Strengthening the Role of the SJA to CMC
The 506 Panel recommended providing the SJA to CMC ``authority to
supervise the administration of military justice and the delivery of
legal assistance services within the Marine Corps''; providing the SJA
to CMC ``authority to exercise professional and technical supervision
over all Marine judge advocates''; and establishing a ``direct
relationship between the SJA to CMC and the SECNAV.''
The 506 Panel concluded that these measures ``will improve the
delivery of legal services within the Marine Corps, and in particular
post-trial processing at the Service level, by institutionalizing clear
lines of authority and accountability.'' The 506 Panel recommended a
dual statutory and regulatory approach, noting that ``legislation would
provide the more enduring, institutional basis for clarifying and
strengthening the role of the SJA to CMC.''
The challenges in accomplishing the DON's legal mission are about
far more than the number of judge advocates. The greatest obstacles are
decades-old systemic lack of Service-level leadership and supervision,
as well as deficiencies in Departmental oversight, which stem from gaps
inherent in the DON's unique uniformed legal organization.
By positioning the respective Judge Advocate Generals (JAGs) within
the Service military staffs, Congress provided the Army and Air Force
with Service-level legal leadership positions with commensurate
supervision authority and accountability. Congress simultaneously
provided for a direct relationship between the Service JAGs and the
Department Secretaries. The dual-Service DON does not readily lend
itself to the efficient construction of the Army and Air Force. A
single JAG was placed at the Department level, presumably to provide
for efficiency and integration. To this end, Congress legislated that
the DON JAG and DJAG would be selected from officers of both the Navy
and Marine Corps, and provided for two AJAGs--one Navy, one Marine
Corps. While this statutory construct accounted for the requirement for
Departmental oversight, it did not provide for the requisite Service-
level leadership position and authorities.
As recommended by the DOD IG and the 506 Panel, and as articulated
by the Secretary of the Navy, strengthening and clarifying the role of
the SJA to CMC will provide this requisite Service-level leadership.

Assistant Judge Advocate Generals
The 506 Panel recommended that two of the Department's four
Assistant Judge Advocate General (AJAG) positions be filled by marines
and two be filled by the U.S. Navy. We have recommended that the AJAG
billets be re-examined, and in the interim, the existing regulatory
AJAG billets be filled in a manner that ensures departmental balance
and integration.
______

Prepared Statement by Maj. Gen. Vaughn A. Ary, USMC

INTRODUCTION

Thank you for the opportunity to speak with you today about the
requirements for your Marine Corps' uniformed legal mission. I would
like to first take this opportunity to recognize the many men and women
wearing the eagle, globe, and anchor today performing that mission.
Currently we have 508 active duty Marine judge advocates serving around
the globe; the largest number we have ever had. In addition, there are
19 legal administration officers and 542 enlisted legal services
specialists in the Active component, and another 328 Marine judge
advocates and 167 enlisted legal services specialists in the Reserve
component. They have responded to the increased demand for legal
services across the spectrum of traditional and nontraditional legal
missions. We are extremely proud of the job they are doing for our
Corps and our Nation.
We believe in command-oriented, organic legal support, provided by
Marine judge advocates, who are integrated, unrestricted Marine Air
Ground Task Force (MAGTF) officers. There is an inherent, intangible
benefit of providing legal support that is responsive to the Service's
unique history, leadership philosophy, and operational characteristics.
These strengths are indispensible to our continued success.
We recognize, however, that some characteristics of our model
(e.g., legacy organizational structures and legal services doctrine, a
philosophy of maximum decentralization, and a limited role for the
Staff Judge Advocate to the Commandant) have limited our ability to
respond to the evolving requirements of our legal mission. Over the
past 20 years, and more acutely in this past decade of war, our legal
mission has evolved in scope, intensity, and complexity. If we are to
effectively address challenges associated with increased courts-martial
complexity, post-trial processing of courts-martial, and sustained
levels of deployments, we need higher levels of individual proficiency
and organizational efficiency, which in turn require a greater degree
of supervision, centralization and uniformity.

A CALL TO ACTION

In August 2009, Congress directed the convening of the Independent
Panel to Review Judge Advocate Requirements in the Department of the
Navy (hereinafter ``506 Panel'') and a contemporaneous Department of
Defense (DOD) Inspector General's (IG) inquiry. These Congressional
directives were the result of appellate court decisions addressing
delays in post-trial processing. In directing these inquiries, Congress
expressed a concern that:

. . . cognizant legal authorities in the Department of the Navy
have not taken necessary and appropriate steps to ensure that
the resources, command attention, and necessary supervision
have been devoted to the task of ensuring that the Navy and
Marine Corps post-trial military justice system functions
properly in all cases.

These congressional directives served as a clear call to action for
the senior leadership within Headquarters, Marine Corps. I want to
assure this subcommittee that the Commandant and the rest of the senior
leadership in our Corps have heard this call, and have moved forward
with genuine resolve to address the challenges you have identified.
In late 2009, the Marine Corps began addressing these challenges by
conducting a comprehensive study of the provision of legal support
within the Service (e.g., training, organization, leadership,
authorities, et cetera). Our study led us to two overarching
conclusions.
First, we concluded that aspects of our historical approach to
providing legal support, including a philosophy of maximum
decentralization and a limited role for the Staff Judge Advocate (SJA)
to the Commandant, U.S. Marine Corps (CMC), had created gaps in our
practice and degraded unity of effort. Over time, outdated doctrine, a
lack of policy and procedural guidance, and limited professional
supervision had rendered performance standards unclear or unenforced.
Simply stated, we did not have the accountability to ensure proficiency
in our core legal competencies.
Second, we concluded that to meet the ever-increasing scope,
intensity, and complexity of the legal mission, the philosophy of
maximum decentralization had to evolve, in a reasonable and balanced
way, to greater supervision and uniformity in policies, practices, and
processes. In a word, we needed to establish relevant common standards
of practice, ensure all of our marines were trained and equipped to
those standards, and then inspect and enforce those common standards.
This would ensure:

effective professional supervision,
transparency and accountability,
unity of effort,
training efficiencies, and
proper apportionment of resources.

We remained acutely aware that uniformed legal support requirements
are largely command-driven, and execution is largely command-oriented.
Therefore, centralized solutions must remain responsive and relevant to
the particular needs of the individual commands, and should reflect the
history, leadership philosophy, and operational characteristics of the
Service. Accordingly, the Marine Corps determined that any such
solutions require supervision by a Service-level senior officer who is
best positioned to provide efficient and responsive leadership, has
authority commensurate with his responsibility, and who can be held
accountable for the performance of the legal mission.
Thus, while proceeding to address the deficiencies in our approach
to the supervision of the administration of military justice and the
delivery of legal services, we decided to seek specific responsibility
and authority for the SJA to CMC for those functions. We recognized
that this would dictate changes in the Department of the Navy's (DON)
unique legal organization, which invests the specific responsibility
and authorities for supervising the legal mission in a single
Department-level Judge Advocate General (JAG), rather than in a
Service-level officer as in the Army and the Air Force. While seeking
this responsibility and authority, we stepped out, relying on de facto
responsibility.
The conclusions of our study, and our way ahead, are captured in
our Strategic Action Plan (SAP) 2010-2015. Published in July 2010, the
SAP establishes five overarching goals, and describes specific Service-
wide initiatives intended to implement these goals. Although they are
addressed more robustly in the SAP report itself, the goals can be
distilled down to the following five principles:

(1) set standards,
(2) train to those standards,
(3) inspect to those standards,
(4) examine and adapt the force to achieve those standards, and
(5) memorialize what we have learned in doctrine.

Over the past year, we have focused on addressing those goals and
creating new initiatives. We continue to use these five principles to
ensure that we are directing our resources and energy precisely to the
requirements identified in the SAP.

THE DOD IG AND 506 PANEL REPORTS

The findings, conclusions, and recommendations in the DOD IG Report
of 10 December 2010 and the 506 Panel Report of 22 February 2011 were
largely consistent with our own determinations. These reports tended to
validate that the Marine Corps was moving in the right direction with
appropriate alacrity.
The DOD IG report, released in December 2010, found:

There have been consistent failures in leadership,
supervision and oversight at all organizational levels,
impacting military justice in both the Navy and Marine Corps.
The failures resulted in inadequate institutional vigilance to
ensure process health and, in many instances, failures to
exercise the diligence and competence required of legal
professionals. Serious post-trial processing problems persisted
for at least the last two decades.

The 506 Panel's final report included over forty separate
conclusions and recommendations. Addressing its primary statutory
mandate--manpower requirements--the Panel favorably noted the Marine
Corps' efforts to increase judge advocate structure and inventory. The
Panel opined that the Marine Corps' bottom-up, top-down, requirements-
driven manpower determinations were realistic and useful, and agreed
that a target inventory of 550 judge advocates over the next 5 years
was sufficient.
Moving beyond manpower requirements, the 506 Panel found it
necessary to focus primarily on senior-level leadership, authority, and
oversight within the DON`s uniformed legal communities. Notably, the
506 Panel echoed findings contained in the DOD IG Report, opining that:

. . . the challenge presented to the leaders of the Navy and
Marine judge advocate communities, with respect to their core
military justice function, has as much to do with ensuring
engaged leadership and effective oversight as it does with
numbers of judge advocates.

The 506 Panel's conclusions and recommendations also addressed
operational law support, support to the Disability Evaluation System
and the Office of Military Commissions, community health, and the
assignment of Marine judge advocates to non-legal billets.
To the extent the 506 Panel recommended action at the Service
level, the recommended reforms are underway in the Marine Corps. These
include a deliberate and responsible realignment and increase in judge
advocate force structure and inventory, the institution of a cost-
effective, rapidly-fielded, and proven case tracking system, and the
establishment of a Corps-wide inspection standard for the delivery of
legal services. These and other Service-level initiatives are discussed
in greater detail below. Implementation of the remaining
recommendations, the most important of which would address the lack of
Service-level supervision and accountability, would require
departmental action, including legislative proposals and implementing
regulations. Increased personnel inventories and focused initiatives
are partial, often temporary solutions. Enduring solutions require an
institutional mechanism for holding leaders accountable for the
mission.
Below I will discuss the major areas of concern from both the DOD
IG report and the 506 Panel's report, and how the Marine Corps is
seeking to address them.

Military Justice Requirements
Court-Martial Case Tracking System
The DOD IG recommended that ``the Department of the Navy develop
and field a single Navy and Marine Corps military justice case
processing and tracking system that satisfies user requirements and
achieves system-wide visibility over the entire court-martial process,
including capability for an accused to monitor his/her appellate case
status directly through web access.''
The 506 Panel noted recent significant improvements in post-trial
processing of courts-martial within the DON, and concluded that for
such improvements to continue ``it is critical that the DON employ a
single case tracking system.'' The requirement for any system, as
identified by the 506 Panel, is to ``track cases from the preferral of
charges or imposition of pretrial restraint at the Service level
through the appellate review at the Department level.''
The Marine Corps currently has a single, Service-wide case tracking
system that effectively accomplishes its primary goal: to achieve
complete and expeditious processing of every Marine Corps case from a
command's Request for Legal Services to arrival at the appellate courts
in order to ensure the due process rights of each and every Marine.
Although limited to those cases referred to courts-martial by Marine
Corps commands, those cases represent 75 percent of all courts-martial
processed by the Navy and Marine Corps Trial Judiciary in fiscal year
2010. The Marine Corps Case Management System (CMS) could be adapted to
track the remaining 25 percent of cases originating within the U.S.
Navy, as well as tracking all cases through completion of appellate
review at little cost and without significant delay.
Development. Conceptually, a single DON-wide case tracking system
is an attractive goal. As yet, a single system has not been fielded or
developed. Recognizing the urgency identified by the appellate courts,
and that the Marine Corps' then existing methodology for courts-martial
tracking was inadequate, the SJA to CMC began identifying the
requirements for an effective case tracking and management system
within the Marine Corps in the summer of 2009.\1\ With the singular
goal of ensuring the due process rights of every accused Marine through
accurate and reliable case tracking, SJA to CMC sought a case
management system that would:
---------------------------------------------------------------------------
\1\ To minimize the demands on the case management system, SJA to
CMC chose to use SharePoint for the Marine legal community's knowledge
management platform, simplifying the evaluation criteria for potential
case management systems.

provide a cradle-to-grave common operating picture for
military justice practitioners and supervisors to manage and
oversee case processing at all levels of the Marine Corps;
provide easy, non-redundant data entry, retrieval, and
report generation capability for military justice clerks;
generate multiple views and reports;
use affordable, off-the-shelf technology supportable
by Marine Corps IT systems;
allow expeditious implementation throughout the Marine
Corps;
provide total visibility of inbound cases from the
Marine Corps to the Navy and Marine Corps Appellate Review
Activity (NAMARA);
accommodate expanding requirements; and
provide up-to-date real-time data for commanders and
legal leadership to identify trends.

Several systems were evaluated, including the Federal Case
Management/Electronic Case Filing system (CM/ECF) and the Navy JAG
Corps' Case Management, Tracking and Information System (CMTIS). CMS, a
Lotus Notes-based, web-enabled software application, was ultimately
selected.\2\
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\2\ Lotus Notes is the same software application the Army uses to
track its military justice and administrative law matters.
---------------------------------------------------------------------------
After successfully testing CMS at various Marine legal offices, the
SJA to CMC mandated its use in MARADMIN 062/10 of 1 February 2010. The
implementation of a common, integrated, real-time case tracking
database produced immediate results by providing complete visibility
over every case at every stage of the Service-level process and
eliminating gaps caused by a variety of incompatible systems throughout
the Marine Corps. CMS is currently being expanded to provide a separate
module for administrative law (i.e. review of administrative
separations and command investigations) and legal assistance (i.e. case
management and client conflict checks).
Notably, CMS went from development to Marine Corps-wide
implementation in 6 months (August 2009-February 2010) at a total cost
of $48,480. (contracted database development and training). Since
February 2010, the Marine Corps has spent approximately $10,250 on CMS
training ($5,250 on technical support training for personnel of the
Judge Advocate Division, Headquarters Marine Corps (JAD) and
approximately $5,000 on fleet-wide user training conducted by JAD
personnel). There are two full-time DOD civilian IT professionals and
one Marine Staff Sergeant (MOS 4421) currently administering all legal
IT requirements for the Marine Legal Community, including centralized
administration of CMS.
The DOD IG Report noted:

The recently-fielded Marine Corps CMS appears to have
substantially greater potential than the Navy CMTIS.
Specifically, CMS appears to offer better and more complete
capability for management to maintain visibility over
individual case processing and status in the field, including
post-trial processing in the field. However, CMS is still new,
relatively untested and has yet to develop all the needed
capabilities.

Effective vs. Exquisite. It is worth noting the DOD IG Report was
issued in December 2010 and based on evaluations of CMS the previous
May. Since then, JAD has made significant upgrades and revisions to
CMS, such as the addition of data fields, validation of required
fields, capturing VWAP information, and updating reports and views. The
majority of these upgrades were based on user feedback. Admittedly, CMS
reflects the austere and expeditionary character of the Marine Corps.
It lacks the appearance and feel of a more expensive software solution
that one might associate with, say, an ``iPad.'' CMS also does not
track cases from the inception of a command or law enforcement
investigation. However, such capabilities do little to ensure effective
courts-martial processing, and ultimately only serve to add cost,
complexity, and delay in delivery of any case tracking system.
Initial Results. CMS effectively and efficiently accomplishes the
purpose for which it was designed. United States v. Moreno \3\
established a presumption of unreasonable delay where the convening
authority's action is not taken within 120 days of the completion of
trial or when the record of trial is not docketed by the Service Court
of Criminal Appeals within 30 days of convening authority's action.
This presumption may be rebutted by the government with evidence
showing the delay was reasonable under the circumstances. As depicted
in the graph below, since the implementation of CMS the average
processing time for Marine Corps cases from date of sentencing to
receipt of the record of trial by NAMARA has gone from 119 days in
fiscal year 2009 to 83 days in fiscal year 2010 and is currently 78
days for fiscal year 2011.\4\
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\3\ U.S. v. Moreno, 63 M.J. 129, 142 (2006).
\4\ Receipt by NAMARA marks the conclusion of the service-level
post-trial processing mission. On average, those cases that are
ultimately docketed with NMCCA, are docketed 1-3 days from the date
NAMARA receives the record.
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In addition, on 24 February 2010, 1 week after the effective date
of implementation of CMS, 41 of the 121 total cases in the post-trial
process exceeded 120 days from the date of trial (sentencing) to
convening authority's action. As depicted in the graph below, on 12
July 2011 none of the 175 total Marine Corps cases in the post-trial
process violate the presumption of delay standards created in Moreno.

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The institutionalization of active monitoring at all supervisory
levels, through a single database real-time tracking system ensures
that every law center, LSSS, and SJA office consistently meets timely
post-trial processing requirements. The decrease in post-trial cases
over the Moreno time limit is largely the result of this increased
oversight. Cases that are over 90 days are flagged on CMS via an
automatic alert system and reported to the SJA to CMC. Because CMS is a
real-time case tracker, JAD is able to identify issues as they occur
and to offer assistance as the need arises.

Military Justice Oversight Council and Annual Military Justice
Report
The 506 Panel recommended that the current annual military justice
report requirement and the Military Justice Oversight Council (MJOC),
created in 2010, be institutionalized in a Secretary of the Navy
Instruction. This was accomplished in SECNAVINST 5430.27D, signed by
Secretary of the Navy on 25 April 2011.
In making this recommendation, the 506 Panel noted that the
military justice mission remained the core statutory mission for the
uniformed legal community, and that the requirement for this mission is
not just about numbers of judge advocates. The 506 Panel stated `` . .
. more accurately, engaged leadership and effective oversight are the
keys . . . .''
Case Load
As depicted below, over the past decade there has been a
significant decline in general and special courts-martials from 1,802
total cases tried in fiscal year 2000 to 846 total cases tried in
fiscal year 2010. The majority of the decline is attributable to a
reduction in the number of special courts-martial, from 1,626 in fiscal
year 2000 to 649 in fiscal year 2010. The general courts-martial
caseload has remained more constant, from 176 cases tried in fiscal
year 2000 to 197 in fiscal year 2010. As of 12 July 2011, the Marine
Corps has tried 129 general courts-martial and 355 special courts-
martial this current fiscal year. At the current rate, the Marine Corps
is on pace to try approximately 600 total cases in fiscal year 2011,
with the general courts-martial numbers again remaining steady and
another decrease in the total number of special courts-martial cases.

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Although the number of courts-martial has continued to decline, the
demand for military justice support has not declined. Allegations of
misconduct have remained steady, with an average of approximately
12,000 allegations reported annually from fiscal year 2000 through
fiscal year 2008, reflecting a continued trend in the disposition
philosophy of our commanders to dispose of less serious misconduct at
alternative forums (e.g. summary courts-martial, nonjudicial
punishment, et cetera). Historical data and local assessments indicate
that the court-martial caseload is sufficient to provide Marine judge
advocates and support personnel the opportunity to gain proficiency and
build an experience base for the development of a professional military
justice practice.
Requirements for Complex Cases
Trial Counsel Assistance Program. The increasing complexity of
courts-martial requires today's judge advocates to have a greater
breadth and depth of knowledge while still remaining proficient in the
basics. Based on the success of the Defense Counsel Organization
supervised by the Chief Defense Counsel of the Marine Corps, the Marine
Corps stood up the Trial Counsel Assistance Program (TCAP) in May 2010
within Judge Advocate Division. The TCAP is comprised of one field
grade officer and one company grade officer. The TCAP provides training
and resources to assist Marine prosecutors using a number of tools,
including onsite training, video teleconferencing, and the TCAP
SharePoint litigation support Web site that contains practice
advisories, a military justice blog, a motions bank, and other useful
documents and links. In fiscal year 2011, the SJA to CMC sponsored
three regional TCAP Training Conferences at Camp LeJeune, Camp
Pendleton, and Kaneohe Bay.
Victim Witness Assistance Program. The Military Justice Branch
(JAM) within JAD oversees the Victim Witness Assistance Program (VWAP)
for the SJA to CMC in his role as the Marine Corps' responsible
official for VWAP. Beginning in fiscal year 2010, the SJA to CMC
sponsors an annual VWAP Training Conference, hosted by JAM and attended
by VWAP representatives from every Marine Corps base. The training is
tailored to provide the base program managers (Victim Witness Liaison
Officers) with the tools to manage their respective programs and
provide local training to their installation VWAP personnel. The
conferences featured briefs from nationally recognized victim
assistance and advocacy trainers, DON and Marine Corps agency heads,
Naval Criminal Investigative Service agents, Family Advocacy Program
victim advocates, and law enforcement and corrections personnel.
Sexual Assault Prevention and Response Program. JAM continues to be
actively involved in assisting Headquarters Marine Corps in developing
policy and advising and training judge advocates with respect to the
prevention of and response to allegations of sexual assault. The policy
focuses primarily on providing a robust support system for victims of
sexual assault. JAM is responsible for ensuring that all judge
advocates receive initial and periodic refresher training on sexual
assault response policies, victim rights, victimology, sex offenders,
current scientific standards for evidence, recantations and false
information, and deployment issues, including remote location
assistance.

Overall Number Of Judge Advocates Required
The 506 Panel concluded that ``[t]he Marine Corps' programmed
target inventory of approximately 550 judge advocates over the next 5
years will be sufficient to fulfill the legal requirements of the
Marine Corps, as well as to preserve the ability of Marine judge
advocates to serve in non-legal billets, maintaining their role as
well-rounded MAGTF officers and contributing to the broader Marine
Corps mission.''
The Marine Corps will continue to ensure that judge advocate
structure, inventory and assignments are effectively managed to meet
evolving mission requirements. As the 506 Panel noted:

A review of internal Marine Corps studies, as well as a CNA
study of Marine Corps manpower systems, reflects favorably on
the Marine Corps' efforts to actively manage legal
requirements, including: its use of a ``bottom-up'' structure
review, careful assessment of increasing demands from
operations and force growth, effective incorporation of the SJA
to CMC as the Occupational Field Manager into the manpower
process, and building active-duty judge advocate inventory in
support of approved structure increases.
. . .

[The] Marine Corps has an effective manpower management
system that deliberately and systematically identifies legal
requirements within the organizational structure of the Marine
Corps, then funds and builds an active duty inventory to
support those requirements.

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Operational Law Requirements
The 506 Panel concluded that ``permanent operational law billets
can be expected to approximately double over the next decade for the
Navy and Marine Corps, and there will likely be continued growth in the
demand signal for judge advocates in contingency operations.'' The 506
Panel recommended that the Marine Corps consider measures to expand
opportunities for senior Marine judge advocates to compete for senior
legal positions within the joint community.
Permanent Operational Law Assignments. Within the Marine Corps,
operational law advice and services have been, and continue to be,
provided primarily by SJAs permanently assigned to the command elements
of the MAGTFs and the headquarters of the Marine Forces component
commands (e.g., Marine Forces Europe, South, Central, et cetera).\5\
Additionally, there are structured requirements for Marine judge
advocates to be permanently assigned to operational law billets at
service headquarters,\6\ Office of the Judge Advocate General
(OJAG),\7\ Joint Staff,\8\ and training commands.\9\ Marine judge
advocates also compete for permanent assignment to joint operational
law billets on the staff of the combatant commands that are not
structured and aligned to be filled by any particular Service. The
requirements for permanently assigned judge advocates to provide
operational law support has steadily increased over the years, rising
135 percent from 2000 through 2012, as portrayed below.
---------------------------------------------------------------------------
\5\ The MAGTF is the Marine Corps' principle organization for all
missions across the range of military operations. MAGTFs are general
purpose combined arms units that can be tailored (task-organized) to
the requirements of a specific situation. Regardless of size or
mission, each MAGTF has four core elements: a command element (i.e.,
headquarters), ground combat element (e.g., units of infantry,
artillery, or tanks), aviation combat element, and logistics support
element. The command element provides the command and control for
planning and executing all military operations, and as such serves as
the headquarters. Id. There are both standing MAGTFs (e.g., Marine
Expeditionary Units (MEU) and Marine Expeditionary Forces (MEFs)) and
mission-specific, contingency MAGTFs (e.g., Marine Expeditionary
Brigade-Afghanistan (MEB-A)). There are three standing MEFs (I, II, and
III MEF), and seven standing MEUs (11, 13, 15, 22, 24, 26, and 31st
MEU).
\6\ E.g., Branch Head, Operational and International Law Branch
(Code JAO), Judge Advocate Division (JAD), Headquarters, Marine Corps.
\7\ E.g., International Law Officer, Code 10, Office of the Judge
Advocate General.
\8\ E.g., Non-Proliferation Planner, Office of Legal Counsel,
Chairman of the Joint Chiefs of Staff.
\9\ E.g., Instructor/Trainer/Advisor at Naval War College, Marine
Corps University, The Army Judge Advocate General's Legal Center and
School (TJAGLCS), and Marine Air Ground Combat Center (MCAGCC),
Twentynine Palms.
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These numbers include seven Marine judge advocates assigned to
Marine Expeditionary Units. These rotational units have traditionally
served as the ``first responders'' to regional crises, such as aviation
support to combat operations in Libya and humanitarian assistance to
Pakistan. Further, our judge advocates serving at Marine Forces
component commands, which are assigned to the geographic and functional
combatant commands, provide the most senior Marine operational
commanders with legal advice concerning international agreements,
security cooperation, and contingency operations. We are proposing
measures within the Marine Corps to enhance the joint experience base
and, thus, create greater opportunities for senior Marine judge
advocates to compete for senior-level joint billets.
Marine Judge Advocate Support to Deployed Marine Units. In addition
to the judge advocates permanently assigned to deploying Marine Corps
units, there is a significant requirement to temporarily augment these
units with additional judge advocates for deployments. There are
currently 39 Active and 8 Reserve Marine judge advocates forward
deployed with Marine units in support of combat and other contingency
operations around the world. These deployed judge advocates provide
critical operational legal advice to commanders. While future manning
requirements for judge advocates assigned to our traditional legal
functions, such as military justice and legal assistance, are more
easily projected, aligning our judge advocate manning requirements to
support contingency operations is more complicated due to the
unpredictable nature of global crises.

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Marine Judge Advocate Support to Joint Task Forces. There are
requirements for individual augments (IA) to provide legal services to
various Joint and Combined Task Forces, Joint forces and NATO commands.
Marine Corps judge advocates currently serve as IAs with NATO's
International Security Assistance Command-Afghanistan, U.S. Forces-
Afghanistan, Combined Joint Interagency Task Force - 435 in
Afghanistan, Combined Joint Task Force-Horn of Africa in Djibouti, and
Joint Task Force Guantanamo Bay. One high-profile example of the
importance of IAs was the selection of a Marine colonel to serve as the
senior legal advisor to General Petraeus in Afghanistan. While there
has been no shortage of active duty volunteers, IA billets are also
being filled with volunteers from the Marine Corps Reserve. Currently
there are four Active component, and three Reserve component judge
advocates serving in IA billets.
Support to the Office of Military Commissions (OMC)
The 506 Panel noted the requirement for support to the OMC. This
requirement was formally revalidated by the Deputy Secretary of Defense
in April 2011. Specifically, the Deputy Secretary of Defense directed
the extension of OMC manning requirements through the end of fiscal
year 2015. The 506 Panel also anticipated that if the majority of
pending cases are referred to military commissions, the OMC would
request more experienced and accomplished litigators.
By September 2011, there will be 13 Active and Reserve Marine Corps
judge advocates at the OMC, including one of our most experienced
colonels who is serving as the Chief Defense Counsel for OMC. Each
judge advocate at OMC is screened on the basis of their military
justice skills and experience prior to being assigned to the OMC.
Support to the Disability Evaluation System (DES)
The Wounded Warrior Act of 2008 and the DOD implementing memorandum
provide that government legal counsel shall be made available:

on a discretionary basis prior to the servicemember's
receipt of the decision of an Informal Physical Evaluation
Board (IPEB),
on a mandatory basis, to consult about rights and
elections, after receipt of the decision of the IPEB, and
on a mandatory basis, for full representation at the
Formal Physical Evaluation Board (FPEB).

The 506 Panel noted that the Services differ in exercising the
discretion to provide legal counsel to wounded, ill, and injured (WII)
servicemembers prior to the decision of the IPEB. The 506 Panel
recommended that this difference in approach be examined by the DOD and
DON.
IPEB Representation. Currently, Reserve Navy JAG attorneys provide
IPEB legal advice to WII sailors and marines at the following
locations: Bethesda, Norfolk, Jacksonville, Pensacola, San Diego,
Bremerton, and Great Lakes. The Marine Corps has mobilized five Reserve
judge advocates to support both mandatory and discretionary IPEB
counseling requirements. Three are located on the East coast (Camp
Lejeune and Bethesda Naval Hospital/MCB Quantico) and two are on the
west coast (Camp Pendleton and Naval Hospital San Diego), fully devoted
to pre and post-IPEB consultations.
FPEB Representation. An additional two mobilized Marine judge
advocates are representing both marines and sailors at the FPEBs
alongside their Navy JAG counterparts. They are operationally assigned
to the Navy Legal Services Office-North Central (NLSO-NC). NLSO-NC is
tasked with all Navy FPEB representation. The need for these additional
judge advocates became apparent when in March 2011 the Navy's Physical
Evaluation Board (PEB) increased the number of scheduled weekly formal
PEB (FPEB) hearings from 16 to 24. Continued funding for all seven
(IPEB and FPEB counsel) Marine Reserve mobilizations is expected
through fiscal year 2012 and is likely to be continued through fiscal
year 2013.
Long-Term Solution. In conjunction with Navy JAG, we are currently
examining the DES architecture, including civilian and military
counsel, to develop a way ahead on providing legal counsel to our WII
marines and sailors. An additional Marine Reserve judge advocate serves
within the JAD's Legal Assistance Branch to supervise Marine IPEB
counsel and coordinate with OJAG (Code 16) in developing the
Department's DES program. The Navy JAG anticipates hiring civilian IPEB
attorneys to provide a long-term solution for representation to the
WII. Additional civilian IPEB counsel are contemplated to ultimately
replace the mobilized Reserve judge advocates by fall of 2013. As part
of the FSRG, the SJA to CMC is proposing the addition of five permanent
structured billets at wounded warrior regiments. The requested
structure includes one Major (O-4) and one Captain (O-3) on each coast,
with another Captain in the National Capital Region. The proposal is
based on IPEB counsel field experience, which continues to demonstrate
that the provision of legal counsel earlier in the process than the
release of a member's IPEB results reduces processing time, produces
more accurate IPEB results, and then reduces the number of formal
hearings.
JAG Authority over USMC Manpower Policies and Assignments.
The Marine Corps concurs with the 506 Panel's recommendation
against providing additional authority for the JAG over manpower
policies and assignments of judge advocates in the Marine Corps, and
agrees with the 506 Panel that additional authority is neither
``necessary nor warranted.'' The 506 Panel provided several compelling
bases for their recommendation, stating:

[t]he Commandant, with the assistance of the SJA to CMC, is
effectively managing judge advocate manpower (i.e., structure,
inventory, and assignments) to meet Service, Departmental, and
joint legal requirements; and to ensure community health (i.e.,
recruiting, retention, and education) and proper career
progression (i.e., promotions) for Marine judge advocates.
Moreover, the JAG is not in the best position to exercise
additional authority in these areas within the Marine Corps,
given the Marine Corps' unique requirements for community
health and career progression of Marine judge advocates.
Lastly, transferring authority from the Commandant to the JAG
could marginalize the SJA to CMC as a legal voice within his
Service, contrary to the 506 Panel's view that the role of the
SJA to CMC needs to be clarified and strengthened.
Enduring Institutional Accountability
The DOD IG Report of 10 December 2010 concluded that:

Longstanding process failures stemmed from inadequate
leadership, supervision and oversight in organizations
suffering from many policy and structural impediments . . . .
Overall, the Navy JAG and senior leadership did not
satisfactorily identify, address, or fix the severe post-trial
processing problems that recurred over two decades despite many
warnings and trouble signs.

The DOD IG Report recommended the SJA to CMC be given greater
authority to conduct Article 6, UCMJ, inspections and to exercise
professional supervision over Marine judge advocates. The 506 Panel
echoed findings contained in the DOD IG Report, opining that:

the challenge presented to the leaders of the Navy and Marine
judge advocate communities, with respect to their core military
justice function, has as much to do with ensuring engaged
leadership and effective oversight as it does with numbers of
judge advocates.

The 506 Panel recommended clarifying and strengthening the role of
the SJA to CMC, by:

providing the SJA to CMC ``authority to supervise the
administration of military justice and the delivery of legal
assistance services within the Marine Corps'',
providing the SJA to CMC ``authority to exercise
professional and technical supervision over all Marine judge
advocates'', and
establishing a ``direct relationship between the SJA
to CMC and the SECNAV.''

The 506 Panel concluded that these measures ``will improve the
delivery of legal services within the Marine Corps, and in particular
post-trial processing at the Service level, by institutionalizing clear
lines of authority and accountability.'' The 506 Panel recommended a
dual statutory and regulatory approach, noting that ``legislation would
provide the more enduring, institutional basis for clarifying and
strengthening the role of the SJA to CMC.''
Both the DOD IG and the 506 Panel reports, as well as our internal
study, suggest that the challenges facing the DON in the delivery of
uniformed legal support are about far more than the number of judge
advocates in the Navy and Marine Corps. Their conclusions suggest that
the greatest obstacles to accomplishing the DON's legal mission are
decades-old systemic lack of Service-level leadership and supervision,
as well as deficiencies in Departmental oversight.
Over the past few decades, several JAGs have implemented measures
and dedicated precious time and resources to address these unique DON
challenges. However, as the DOD IG noted, ``[w]hen curative measures
were taken, they were often short-lived or insufficiently
institutionalized to endure past the incumbency of individuals who
resolved problems at the time.'' This suggests that systemic
deficiencies stem not from personal leadership failures but rather from
gaps inherent in the DON's unique uniformed legal organization.
By positioning the respective Judge Advocate Generals within the
Service military staffs, Congress provided the Army and Air Force with
Service-level legal leadership positions with commensurate supervision
authority and accountability. Congress provided for a direct
relationship between the Service JAGs and the Department Secretaries.
In a single-Service Department, the JAGs can seamlessly provide
Service-level leadership and supervision while remaining accountable to
their Secretaries to facilitate Departmental oversight.
The dual-Service Department of the Navy does not readily lend
itself to the efficient construction of the Army and Air Force. A
single JAG was placed at the Department level, presumably to provide
for efficiency and integration. To this end, Congress legislated that
the DON JAG and DJAG would be selected from officers of both the Navy
and Marine Corps, and provided for two AJAGs--one Navy, one Marine
Corps. While this statutory construct accounted for the requirement for
Departmental oversight, it did not provide for a Service-level officer
within each of the naval Services to exercise responsive Service-level
leadership and supervision.
As recommended by the DOD IG and the 506 Panel, and as articulated
by the Secretary of the Navy, strengthening and clarifying the role of
the SJA to CMC will provide this requisite Service-level leadership.
In the meantime, we have begun providing Service-level leadership
and supervision based on de facto responsibility. We have used the
authority vested in the SJA to CMC through the Commandant of the Marine
Corps to reorganize and reorient the Judge Advocate Division to
effectively lead and supervise our legal community. That orientation is
illustrated in the changes depicted below.

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Assistant Judge Advocate Generals (AJAGs). The 506 Panel recognized
that, while the statutory scheme provided for only two AJAG positions,
to be balanced with one position filled by a U.S. Navy JAGC officer and
the other a Marine judge advocate, the regulatory scheme provides for
four AJAGs, with three positions filled by U.S. Navy JAGC officers and
one filled by a Marine judge advocate. As a result, the current
regulatory scheme only allows for one Marine to serve among the six
Departmental JAG-related flag and general officer positions. The 506
Panel recommended that two of the Department's four AJAG positions be
filled by Marine judge advocates and two be filled by U.S. Navy judge
advocates, using the rotational process now being used by the U.S. Navy
so that the four regulatory AJAG positions rotate through the two
statutory positions.
We have recommended to the Secretary of the Navy that the AJAG
billets and their responsibilities and authorities be re-examined. In
the interim, I have recommended to the Secretary that the existing
regulatory AJAG billets be filled in a manner that ensures departmental
balance and integration as recommended by the 506 Panel.

CONCLUSION

Again, I would like to thank Congress for its interest in the
health and well-being of our mission. Congress's interest in our
mission was received as a call to action by our community and the
leadership within our Corps and I am proud of our response. More
importantly, as I travel around to our bases and stations visiting and
inspecting our legal services community, the officers and Marines, both
senior and junior, are excited about the direction in which our legal
community is headed.
The future of our Marine judge advocate community is bright.
Recruiting trends indicate that incoming judge advocates and legal
service specialists are uniformly better qualified than we were a
generation ago. I believe we owe it to them to maintain a professional
legal community dedicated to meeting the high standards of our Corps,
with strong, enduring mechanisms for responsibility and accountability.
Moreover, we owe it to our commanders and individual marines to ensure
they continue to receive the best possible advice, representation, and
legal services.
Based on the direction we are taking in our SAP and in response to
the DOD IG Report and the 506 Panel, I am firmly convinced that we are
positioning ourselves to best serve the Marine Corps, the Department of
the Navy, and DOD.

Senator Webb. I appreciate all of your testimony.
General Ary, let me just start by asking if you could give
us a rundown on this Foster case, I mean, the chronology of it,
how it got so out of synch.
General Ary. I would say that it is hard to assess one
single event. In most of these things, it is a cascade of
events, and it usually starts with leadership and ends with
leadership.
I can tell you that the U.S. Marine Corps, the service-
level mission, from date of trial and the post-trial processing
until arrival at the court, took 739 days, a completely
unacceptable length of time.
Today, we are tracking 164 cases. We have total visibility
of them in the post-trial process. There are 25 over 90 days,
and none of those have exceeded 120-day timeline of the Moreno
standard.
We also provide the Navy and Marine Corps appellate review
activity with an account receivable of cases that are inbound
to that court. They have total visibility of cases from date of
trial. So it is a push-pull system in the Department of the
Navy, as far as the Marine Corps side in our case management
system.
This is not hard, but it requires an attention to detail
that just did not exist at the time Foster occurred.
Senator Webb. I am going to just ask you as a former
Marine. How did something like that get lost for 9 years? At
least that is the word that we have here, that it languished
for 9 years.
Was this systemic? Was it somebody sticking it in a drawer?
I just don't understand it.
General Ary. I would not say that it was unique, sir. I
would say that there was an institutional--I think the DOD IG
was right on when they talked about failure of oversight at all
levels, about lack of proper visibility and case tracking
systems.
We just lost sight of the accountability that we needed,
and it was inexcusable, sir.
Admiral Houck. Sir, if I may join General Ary, because this
wasn't an exclusively Marine Corps problem. This was a Navy and
Marine Corps problem.
The problem, as he alluded to, started at the Service level
in the Marine Corps, but it continued when it reached the Navy-
Marine Corps Court of Appeals.
I agree with General Ary. First and foremost, I think it
was a management-leadership issue. I also think it was a
resourcing issue. I think that the court was not adequately
resourced at the time, and I think the people that were on the
court did a poor job of managing the resources that they had.
We have today, as I mentioned earlier, by any measure, by
several different measures, most of which are set by the Court
of Appeals of the Armed Forces, we are meeting their gates and
then some. We have done that, I think, through three ways.
We have, first of all, it starts with the two of us. We are
personally focused on this problem. We meet in a military
justice oversight council once a month. The two of us are
always there and with several of our assistants to talk about
case tracking in the department.
We have also put good qualified, motivated military justice
people on our courts and within the system, I mean, from the
appellate court to the trial level. The judiciary is no longer
a place, as it was sometimes in the past the Navy and the
Marine Corps, where people go because there is no other good
place for them to go. We have a judicial screening board, and
we don't pick everybody that applies to be a judge these days.
We, because of our small number of cases in the Navy, have
set up a military justice career track, which is designed to
ensure that for the cases that we have, that we get our
experienced prosecutors and defense counsel on those cases, and
that they continue to work cases so they can build their
experience within the caseload that we have.
So there are a number of people in JAG Corps alumni that
said we would never do that and never make that work, and it is
working today. It is fully populated and operational.
So I think the third thing that General Ary has alluded to
are systems that we have in place that we did not have and
weren't overseeing adequately back in the day. So I just wanted
to join in.
Senator Webb. I thank both of you. It is refreshing to see
people just kind of step up and accept responsibility. I think
the numbers that you both gave in terms of where you are now on
timelines is really encouraging. So I thank you for that.
Senator Graham.
Senator Graham. Mr. Chairman, I want to thank you for
having the hearing because let it be said that Congress cares.
We watch. We follow, and the Foster case was the reason for us
to have the independent panel review.
We now have a better understanding of what the many
requirements are for the Navy and the Marine Corps, and I think
we have two people in positions of leadership for the Navy and
Marines that are not going to let this ever happen again. For
that, I thank you.
From the Army's point of view, Lieutenant General Chipman,
what happens? We are trying to figure out what force we need,
what we can afford, and how the Defense Department fits in the
overall budget woes of the country.
If we reduce the Army by 49,000 people, how does that
affect the JAG Corps? Do you have any idea how this will affect
your ability to perform?
General Chipman. Senator Graham, I think it would affect us
in a couple of different ways that I can identify in
particular. First, many of our judge advocates now are embedded
in the units they advise. For example, to the extent that we
take down 49,000 soldiers in force structure, we will lose the
corresponding judge advocate billets that accompany those
formations.
We have two judge advocates assigned to every brigade in
the Army. When they deploy, typically, there is a third judge
advocate because of the need to conduct rule of law operations,
as you saw in your own deployments at U.S. Central Command
(CENTCOM).
Second, if we take down 49,000 soldiers overall, I see more
focus on the headquarters-level functions to deal with how do
we respond to surge requirements that may accompany different
and evolving missions. BRAC has increased our legal workload.
That turbulence in taking 49,000 soldiers out of our inventory,
I can imagine, will generate another set of legal issues, as we
figure out the authorities and the personnel actions needed to
effect that reduction.
Senator Graham. So we just need to know that as you draw
down the Army, your workload probably goes up.
General Chipman. Senator, I think that is an accurate
statement.
Senator Graham. Now, Admiral, I am very confident after
this hearing, that you have a grip on what needs to happen in
terms of monitoring military justice activity, particularly
appellate review. The 950 number, is that the right number, and
are you going to get the people?
Admiral Houck. Sir, the way that I arrived at my estimate
for--I think it is the right number. It is close to the right
number.
The way I arrived at my assessment last year before the 506
panel met was very simply to look at what I believe to be the
needs of our base force for judge advocates would be, and that
would be the people to do the traditional things that judge
advocates do.
I also recognize that we have the missions right now of
individual augmentees in the global war on terror that you
spoke of earlier, as well as the Office of Military
Commissions.
Senator Graham. Do you know how many Navy personnel have
been assigned to Iraq or Afghanistan as individual augmentees
(IA)?
Admiral Houck. It is close to 500 judge advocates, Active
and Reserve. Our Reserve component has been spectacular in
helping us meet these demands.
I looked at our base force, did a lot of shoe leather, a
lot of phone calls, a lot of travel, a lot of discussions, and
came to a number. Then adding on top of that base force number,
which I judged to be and still judge to be about 820 judge
advocates in the Active component, add to that number those
necessary to fulfill the IA and Office of Military Commission
numbers.
Today, July 20, that number adds up to be 925 people, by
coincidence, as it was about a year ago. The Navy program for
this year has us at 801. That delta between 925 and 801 is
mitigated by a couple of things.
The first one is we are being allowed to over execute,
which is to say we probably will carry about 30 extra attorneys
beyond that 801 number by the end of the fiscal year. We have
done that 13 out of the past 20 years.
The second thing is our Reserve component, reservists that
are mobilized, where they have come on for Active Duty for
special work. That is about another 60 attorneys. So that
begins to close that gap. To be precise, it is 895 today versus
what I believe is a requirement of 925.
Is there some risk that is still in that delta? I think
there is. But I think it is----
Senator Graham. My question is, is it going to close?
Admiral Houck. Judging by the Navy program, the Navy
program is designed to get lower over the next couple of years
and then to build back up toward that number across the Future
Years Defense Program of 821. I think the delta is going to
depend a lot on what we see real time in the demand for the IA
mission and the Office of Military Commissions.
Senator Graham. Okay.
Admiral Houck. It is difficult for me to predict what that
is going to be going forward.
Senator Graham. Okay. Lieutenant General Harding, can you
tell us what effect being a three-star has had in terms of your
ability to do your job versus two stars?
General Harding. Yes, sir. It has had a huge effect. Again,
it is all about a seat at the table, and it has produced a seat
at the table.
Now, I had not served earlier as a two-star, had served as
a one-star and was promoted to three. I will tell you the
difference between those two worlds is huge. It is galactic,
and as is the difference between serving as a one-star and a
colonel.
Progressively, you are in a situation, certainly as a judge
advocate, where you can hear planning and strategizing ongoing.
If legal advice is required--and you may be the only one in the
room that understands that there is a legal issue that has now
been raised--you are present to do so.
So it is awfully important to have a seat at those tables.
Senator Graham. If we have too many generals, I want to
know about it. I want to make the Pentagon more efficient.
Mr. Chairman, the reason I wanted to have this hearing not
only because of the Navy-Marine Corps problem, it is because I
have been in the Air Force, and consider my interest parochial,
I can't imagine combat commanders at the level we are talking
about not having access to general officer legal advice. I
mean, it is just not the Air Force that I know.
I guess I maybe am biased here. I just know what rank means
when it comes to having entre. I just wanted the committee to
understand that this is a major change. I mean, this is a
fundamental, seismic change in terms how the Air Force delivers
legal advice.
I have a letter from the Air Force Chief of Staff who
recommended not to go this way when it came to replacing these
three stars. I would like to introduce that in the record.
I just appreciate my colleagues listening. With that, I
will turn it over to anyone else.
Senator Webb. Your letter will be put in the record at this
point.
[The information referred to follows:]

[GRAPHIC(S)] [NOT AVAILABLE IN TIFF FORMAT]

Senator Webb. I, also for purposes of objectivity here,
would like to emphasize the chart that we showed at the
beginning of this hearing. If you look at the Army with 569,000
Active Duty people, they have a total of 6 JAG general
officers.
The Navy has 328,700. They have a total of two.
The Marine Corps has 202,000 people. They have one and he
is sitting at our table.
The Air Force has 332,000 people, and they have 6.
So, General, I appreciate your adamant belief in this
point. But at the same time, I think there is a decision that
has been made over in DOD, and at least from my perspective, it
will take a lot to turn it around.
General Harding. Yes, sir. May I comment about the chart,
sir?
Senator Webb. Is this your personal opinion again?
General Harding. No, sir. This is, I think, documented in
the 506 panel as well. I know for a fact it is.
Senator Webb. All right. By all means.
General Harding. To a degree, to ensure that we are
comparing apples to apples, I think it is important to take a
look at the various mission sets of those three JAG Corps. They
are not coterminous. They are not equal.
For example, in the 506 panel, they depict the Senior
Executive Services (SES) billets for the Army Materiel Command,
which is separate and apart from the Army JAG Corps. In the Air
Force, the Air Force Materiel Command is supported legally with
one of those one-stars that we are talking about today.
If you take a look at the Navy side, you will see that
their model is very different, far afield from the Army's and
the Air Force's model. Their Navy Legal Services largely is run
by their Navy general counsel. In fact, there are 22 SES
equivalent positions there.
So I think it is important to look at mission as well as--
--
Senator Webb. General, I take your point. I am sorry to
interrupt, but you have taken a lot of time on this.
For the record, let me just say I grew up in the Air Force.
I know where you are coming from here.
Senator Hagan.
Senator Hagan. Thank you, Mr. Chairman.
I think this is very interesting, and I appreciate you all
having this hearing today.
I just wanted to talk a little bit about the expansion of
services. As many of our troops are returning home after
deployment, after a year's deployment, they are welcomed home
to a life they didn't leave, that is very different from the
year prior before they left.
Some of them are facing divorce. Some of them are facing
custodial battles. Some are challenged by financial issues,
such as bankruptcy. These legal issues can also be the cause of
so much stress and financial complications, which ultimately
will be distracting to their ability to perform their mission.
Although military members can receive legal assistance on
post, many military attorneys, from what I understand, are
recent law school graduates who are licensed in States other
than where they actually are assigned for duty. Understandably,
the JAG Corps is not equipped to handle the scope and the
breadth of attention for each of these personal matters.
I am from North Carolina, and our State bar association has
a standing committee on legal assistance for military
personnel, whose Web site, it is actually North Carolina Legal
Assistance for Military Personnel (NCLAMP). They have valuable
legal information available for military servicemembers.
This initiative provides a network of legal assistance
attorneys to provide prompt and professional advice. Since
1983, they have also produced handouts to educate clients and
military legal assistance teams on the relevant areas of law,
of North Carolina law. The committee also keeps tracks of
unique problems that are primarily military in nature to inform
the North Carolina bar about these particular issues.
I believe this initiative offers a template for a
successful integration between local and State communities
around military installations, and I understand that many
States have similar programs like this NCLAMP for military
personnel.
Do you know if any evaluation has been done to look at
formal partnerships at the local and State levels to complement
gaps in legal care for our servicemembers?
General Chipman. Senator, I would like to start with that
question.
Senator Hagan. Okay.
General Chipman. But first, I would like to say that Mark
Sullivan is not just a North Carolina asset. He is a national
asset, and he has greatly affected our legal practice
nationwide with his devotion to legal assistance needs of our
servicemembers.
There are, in fact, partnerships. There are places where we
have what is called an expanded legal assistance program.
Georgia comes to mind. Texas, in particular, is very aggressive
in supporting soldier and veterans' needs for legal assistance
services.
I don't know of any formal institutional framework by which
those have been pursued. But I can say that I and my colleagues
will be in Toronto in a couple of weeks for the American Bar
Association (ABA) convention, and it is certainly a topic we
could raise with the LAMP Committee, as well as the Standing
Committee on Armed Forces Law. I think that would be a great
topic to look at their expertise in.
Senator Hagan. Great. Anybody else?
Admiral?
Admiral Houck. No, ma'am. I was just going to make the ABA
point before General Chipman did. They have taken a pretty
active role in the pro bono business and in trying to get us
linked up with local bar associations and pro bono efforts.
General Harding. I would throw my hat in the ring with the
ABA. They have done superb work, and we have supported them
wherever we can. They don't supplement, they augment what we do
in our legal assistance program. So it is important that that
program remain.
To the extent that we can expand legal assistance with our
meager resources, we would. But, frankly, we are a little
resource constrained on legal assistance.
General Ary. I might add that legal assistance has always
sort of been viewed as a luxury, that that is where you put
your excess capacity. Our Commandant has a priority that we
keep faith with all marines. He has made that a priority and
that is the piece, the one piece, that we are concerned about.
I know we have spent a lot of time talking about military
justice, but we look at the legal community as an area in which
we need balanced excellence across all of the areas. It is a
bit of a challenge, especially when you have new missions, like
the disability evaluation system. But it is something that we
have to position the legal communities across the board to
cover those and make sure that we execute in a proper manner.
So, thank you.
Senator Hagan. Thank you.
Senator Webb. Thank you, Senator Hagan.
Senator Brown.
Senator Brown. Thank you, Mr. Chairman.
General Chipman, as the Army actually draws down, I agree
the workload will definitely increase. The Guard seems to be a
unique investment in today's force. Do you think the Guard will
play an expanded role in helping reduce the actual workload?
General Chipman. Senator, I do. We have actually recently
resourced a Guard trial defense service initiative. It is in
its first year of operation. We have about 100--in excess of
100 National Guard judge advocates performing trial defense
service in support of that new team.
But we have more than 50 National Guard judge advocates
mobilized right now in support of various requirements and have
had that number over the last several years. In fact, we have
nearly 5,000 individual augmentee and unit mobilizations since
September 11. So we have gotten great support from both the
Army Reserve and National Guard.
I certainly see the Guard assisting as we transition--
whatever change we effect within the Army, I see the Guard
playing an integral role there and not the least of which is
their role in our civil support operations, which we have so
many guardsmen mobilized right now with the Southwest border
mission and with natural disaster response.
Senator Brown. Do you think that we have enough
commissioned officers in the Guard who are qualified in the
legal profession? Do you think there is a breakdown there at
all?
General Chipman. Senator, that is an interesting question,
because I look at the relative size of our two components. For
an Army Reserve of roughly 205,000, we have about 1,800 judge
advocates. For a National Guard of about 360,000 or a little
bit more than that, we have around 800 National Guard judge
advocates.
So I think there is perhaps some room to grow our Guard
legal capacity more.
Senator Brown. General Harding, do you have any thoughts on
that?
General Harding. We are 80 percent manned in our Reserve
category B, those are our individual mobilization augmentees.
We try mightily to get closer to 100 percent, but I think the
economy has driven some of the folks to kind of stay at home.
Having said that, the rest of our Air Reserve component is
very strong. In fact, they are taking a substantial part of the
burden of deployment for JAG billets in the CENTCOM area of
responsibility off the shoulders of their Active Duty brethren.
They are backfilling the home station and by way of home
station support those that do deploy forward.
As a matter of fact, one of our brigadier generals is
deployed forward in Afghanistan right now, has been there for
almost a year, and backfilled with an Air Force reservist. So
we rely on them heavily.
Senator Brown. Thank you.
Admiral, I am just trying to kind of wrestle a little bit
with the report that was made about the number and then, the
fact that you are not near that number. I understand you are
talking about augmenting, and I am still not quite there,
though, as to seeing if the Navy actually has enough folks to
cover their needs.
Can you just talk a little bit more about that? I am not
quite clear on it.
Admiral Houck. Yes, sir. I think two points to start with.
My estimate, as I said earlier, is that we need about 925 judge
advocates right now. I mean, I can't sit here and tell you that
I have a computer or a calculator that gives me that number. It
is my best estimate.
Senator Brown. Right. But you only have 800 and something.
Admiral Houck. Yes, sir, 895 today.
Senator Brown. So what is the plan, I guess, to get up to
that number?
By that I mean to say are you planning on getting up to
that number?
Admiral Houck. The Navy's plan would be to--and going back
to my description of our base force, about 820, which is what I
need steady state right now, given our force. The Navy's plan
reaches that, but reaches it in--at the end of the 5-year
defense plan.
Senator Brown. So, in the interim, you are going to be
basically down a fair amount of JAGs?
Admiral Houck. Yes, sir. The question going forward, I
think, real time will be how much of that difference I make up
through over execution, being allowed to keep more people on
Active Duty than the plan calls for, as well as to augment it
with reservists, to your earlier point.
If I was in an ideal world, I would have 925 full-time,
steady-state, Active Duty judge advocates to meet that demand
signal. I can't say otherwise.
Senator Brown. I guess my next question would be then, that
being said, I think the other question you need to ask yourself
is, if you don't have a JAG when you need one, are you prepared
to take the consequences of a poor decision by one of the
combat commanders?
I guess that is the balancing act that you have to do, it
is not dissimilar than our State district attorneys when they
are understaffed or police forces back home who are being
reduced and cut. At what point is it hurtful, potentially, to
the mission and to the safety and security of our soldiers and
also the political/legal ramifications of that?
I know you are wrestling with that. Certainly, if there is
something that we can do in this committee to--is it a resource
issue? I mean, do you need additional billets?
I mean, we are not just here to kind of throw bombs, I
don't think, or get answers. We are here to find out how we can
help, too, I think. Especially, you have two JAGs right here
who kind of get it.
Admiral Houck. I think for our leadership, they are--to
state the obvious, they are trying to reconcile many demands.
The Secretary of the Navy is a lawyer.
Senator Brown. So that is the problem. [Laughter.]
Admiral Houck. So he understands the value of legal
services.
The CNO has served with lawyers at all levels of command,
and I have met with him many occasions. I have complete access
to him, and he understands the value of legal services.
I think all that I can say is that I see my job is to
assess the requirement and then tell them what I think it is.
Then they have to reconcile and make the decisions based on the
larger picture that they have.
I think that in 99 percent of cases, we will provide a
legal answer. I don't think having--I don't think we will not
provide a legal answer.
I think the risks are a little more subtle. I think they go
toward the amount of time we are able to devote toward
maintaining and attending to some of the legal program
administrative requirements that come up. I think it goes to
the amount of time we have to devote to education and training.
Those are more subtle, but I think those are some areas where
risk comes into not having enough people.
Senator Brown. Just a final thought, do you anticipate in
this shortfall you are going to have of making the requirements
cross-branch requirements, so the Army or Air Force, and
getting that type of assistance? Is that something that happens
at all?
Admiral Houck. We do some of that. My colleagues may want
to comment on it--but we do it, particularly, obviously, with
the Marine Corps. Less so with the Army and the Air Force. We
do it. We have some joint basing initiatives where we work
together.
Senator Brown. I would think, especially on the Services in
CONUS, obviously, when you are dealing with just legal
assistance issues, I mean, those are pretty standard
throughout. Take that pressure off.
I agree with you. Some of the most important and helpful
cases I have worked on have been in the legal assistance field
because that is when things are most dire.
A husband and wife getting divorced. There is so much
pressure. That is the pressure point, and that is the morale
issue, quite frankly.
Take shift resources on those lower type of really not
high-end appeal cases and technical cases. Just grind them out.
Get them done.
Admiral Houck. We routinely see servicemembers from the
other Services, and I know they do for ours as well. So that is
a big area of cooperation for us.
Senator Brown. Well, I can just make one final conclusion.
One of the biggest challenges that many guardsmen have is the
length of deployment, in that there are many soldiers in the
Guard who would be happy to do backfill tours of 3 to 6 months
voluntarily.
Is there any effort in that, to reach out to do those types
of tours and say, ``Hey, listen, we have a guy who has been
deployed. He needs a break, and he needs 3 months.''
Do you send those feelers out--because we don't get them
too much, I know, in our unit. Anybody can comment on that.
General Harding. We have done that before, daisy-chaining a
deployment link to send somebody over there for 90 days, in a
succession of 90 days.
Senator Brown. Even in CONUS, just to backfill here.
General Harding. Certainly, yes, Senator, we do bring folks
in, as I say, home station support to support legal offices
that are a little shy because they have some folks down range.
But certainly. Certainly.
For adjustable periods of time so they can certainly find a
spot that is right for their employer as well. So we have done
that.
Senator Brown. Great. Thank you all.
Thank you, Mr. Chairman.
Senator Webb. Thank you, Senator Brown.
I would like to express my appreciation to Senator Brown
and Senator Graham for their continued service in uniform, as
well as here in the Senate, and Senator Graham for having
recommended this hearing.
He is one of the great lawyers up here in the Senate. There
is nobody up here who is better on law of war and those sorts
of issues. Tremendous admiration and respect for Senator
Graham, and it is a great pleasure to work with him.
Senator Graham. Thank you, Mr. Chairman.
You have been terrific. It has been one of the few
bipartisan areas left in the Senate, if I could put it that
way. [Laughter.]
Senator Webb. I would like to again thank all of you for
your testimony today and for your continued service to our
country. Again, I appreciate your having had the patience to
wait for us, as we got a little bit of a late start.
But thanks again. This is very valuable testimony not only
for the Senators who were here, but a lot of staff work goes
into this, a lot of thought goes in from digesting what came
out of this testimony. So it has been very valuable to this
committee, and I thank all of you.
This hearing is adjourned.
[Whereupon, at 4:00 p.m., the subcommittee adjourned.]

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