Service members at odds over Indiana National Guard court-martial bill

Timothy Sproles

Editor’s note: This article was first published in the Indiana Capital Chronicle.

A proposal stripping Indiana National Guard members of the right to refuse non-judicial punishment and demand a trial by court-martial is drawing outrage from some veterans, even as guard leaders say it’ll ensure good order and discipline.

The controversy has caused the American Legion of Indiana to withdraw from The Big Four — a coalition of veterans service organizations that usually work together.

“The decision to leave did not come lightly; Indiana Legion believes that all voices within the Big 4 should be heard and given the opportunity to vote on our position before testifying to committees,” a Legion email said. “This has not been the case, and since we believe it is important to represent all Hoosier veterans and active military members, we have decided to separate.”

The Big Four include the American Legion, Veterans of Foreign Wars, Disabled American Veterans, and National Guard Association of Indiana, representing a combined 135,000 Hoosier veterans.

No military trials happening now

Twin legislation from the House and the Senate would make three changes to the state’s military justice system — only one of them controversial.

House Bill 1076 and Senate Bill 279 would let the guard’s leader, Adjutant General and Major General Dale Lyles, convene trials in military courts, also known as courts-martial. They’re typically reserved for more serious alleged offenses.

Right now, only Gov. Eric Holcomb has right to convene courts-martial — but Lyles told lawmakers at a hearing Tuesday that Holcomb had called none in at least the last three years.

And Lyles acknowledged there had been cases during that time period that should have used courts-martial. Col. Tim Baldwin, a judge advocate with the guard, said the organization had removed four people from its ranks in the last year on accusations of sexual assault.

But administrative separations don’t go on permanent records. Court-martial convictions do.

The provision expanding the power to convene gained near-universal support in public testimony. But a second didn’t.

The Indiana National Guard uses non-judicial punishments for minor offenses. Commanders notify the Guard members involved, consider the evidence presented and decide if the members committed the alleged offenses.

But members also have the right, upon notification, to demand trials by courts-martial. Commanders cannot deny those requests — they can only refer requests higher up the chain of command.

The bills would eliminate that right.

And in exchange, Guard leaders said, the bills would block commanders from incarcerating members as part of non-judicial punishments.

Lyles argued that those provisions allow for “the swift administration of non-judicial punishment in cases involving minor offenses.”

“The main theme of this bill is efficiency,” said Judy King of the Veterans of Foreign Wars.

“Others may say this bill takes away the due process rights,” she said. “I disagree. This bill allows for to process at every level.”

King emphasized the guard members are notified of proceedings, have access to free counsel or can hire their own lawyers, can present evidence, and can appeal the results.

But bill opponents argue that commanders are not independent arbiters, as a judge would be in a court-martial.

“It’s not necessarily removing the due process rights of our men and women who volunteer in the [Indiana] National Guard,” said Lisa Wilken, an Air Force veteran and board member for the Indiana Veterans Support Council. “What it’s actually doing is taking away their right to say to the government, ‘prove it.’”

“Everybody has their opinion,” Richard Caldwell, an American veterans representative on the Indiana Veterans Affairs Commission, told the Capital Chronicle. Caldwell said that over his 32-year-career, he served on a court-martial in Iraq and oversaw numerous non-judicial punishments.

“I’ve been involved in one [non-judicial punishment] where the commander couldn’t stand the kid,” he said. “He was a young kid, didn’t have great parental guidance. He was just always getting in trouble. And the commander didn’t like him. He wanted to throw the book at him.”

Caldwell said that he advocated for a less-harsh punishment aimed at rehabilitation, but concluded,” Not every commander likes everybody.”

Baldwin pushed back on the idea that commanders can’t be fair.

“To suggest that these commanders have already made up their mind, I find that offensive to the organization that I’m in,” he said at a hearing last week in response to an opponent’s argument that the proposal would render members “guilty until proven innocent.”

System problems?

Bill proponents and detractors both said the guard’s current system, in which it’s difficult to convene a court-martial, isn’t working. But they had different takes on the proposed solutions.

“As a practical matter, these soldiers know if they refuse an [non-judicial punishment] and demand a court-martial that we’re not going to give them a court-martial,” said Baldwin, the guard judge advocate, at a House hearing last week. He emphasized the time and expenses involved.

“So in effect, they either get almost nothing — a memorandum of reprimand — or we go to separation procedures and they’re out of the [Indiana] National Guard,” Baldwin added.

Army veteran Rep. Renee Pack, D-Indianapolis, called the status quo a “system problem,” during third reading for House Bill 1076 on Monday. She had previously offered an unsuccessful amendment deleting the court-martial proposal.

“We have our enlisted guardsmen paying the price for that system problem, losing their rights because of a system issue,” she told lawmakers. “And I still stand to say it is not fair — it is not right — to those men and women who have volunteered not only to help and defend this state but defend this country.”

“Government inefficiency should not be an excuse for overreaching,” she added in a passionate speech.

The House legislation passed out of the House on Monday mostly along party lines, 74-24. It will now go to the Senate for consideration.

Its Senate twin, 279, passed out of committee Tuesday, along party lines of 6-2. But some Republicans expressed reservations with the court-martial proposal even as they voted yes.

Sen. Jim Buck, R-Kokomo, said he wanted to see the bill move out of committee, but that he wanted some concerns “addressed.”

Sen. Blake Doriot, R-Goshen, also said he voted yes to “move this along,” but said, “I’ll be looking for some answers.”

Leslie Bonilla Muñiz graduated from Northwestern University in March 2021, and has reported for the Chicago Tribune, Voice of America and student publications in Evanston, Illinois, Washington, D.C., and Doha, Qatar.