INDIANAPOLIS — Military groups in Indiana say a bill on its way to the Governor’s desk will take away a fundamental right from National Guard men and women.
The Indiana National Guard is called to service in times of crisis, and they are held to a higher standard. When they break military rules, they are disciplined. That discipline is called a non-judicial punishment.
"A non-judicial punishment is an administrative action. It doesn't require rules of evidentiary procedure,” Dugan Julian, Marine Corp veteran who spent almost a decade working in the legal department, said. “No one has to prove that you did or didn't do what you are accused of doing or not doing at all.”
If a service member doesn't agree with the accusation, they can challenge it by requesting a court martial.
"The accused has the chance to confront witnesses and have a defense attorney, all of the things that we associate with good and the legal system, " Julian said.
House Enrolled Act 1076 would change that. The legislation would no longer allow active National Guard members to call a court martial if they don't agree with their commanding officers accusations.
"This would be like removing the HR department from a massive corporation and telling employees if you have a problem with your boss, too bad they get to do what they want," Julian said.
However, the author of the bill says there are other safeguards in place to make sure National Guard members still have due process.
"You have the right to present evidence in mitigation, the right to call witnesses, the right to have someone from your unit speak on your behalf. You have the right to appear personally before the commander, you have the right to appeal his or her decision to the next superior commander or to a disinterested commander,” Rep. Chris Jeter, the author of the bill and a Republican representing District 88, said. “There's not many places I know that you get those rights if your employers want to write you up. "
Representative Jeter feels this bill will help the National Guard function more efficiently.
"The goal, at the end of the day, is to maintain a National Guard that is ready, disciplined and is the best of the best people that want to be there. These tools help commanders get there without unnecessarily elevating these issues," Jeter said.
Non-judicial punishments are disciplinary actions for minor offenses. For issues like sexual assault or other serious crimes, a court martial would still be held.
WRTV reached out to the highest-ranking officer of the National Guard for a comment, and they sent us the following reply.
The Indiana National Guard has not requested Gov. Holcomb to convene a General Court Martial since he took office in 2017. The proposed bill represents the informed decision by the senior leadership of the Indiana National Guard that this is the best way to ensure and maintain the good order and discipline of the organization while protecting the rights of all Guardsmen.
This bill aligns with the American Bar Association's Model State Code, which provides no right to trial by court martial when correctional custody is not an option. A majority of states have adopted a similar provision through state code or regulation.
This bill maintains fundamental due process for Guardsmen, including notice of the action, an opportunity to be heard, and a decision by a neutral decisionmaker. It does not impact due process because it removes correctional custody as a punishment.
The Indiana National Guard, with more than 12,000 uniformed members, has more than 100 company-level units spread throughout the state. Offenses can include but are not limited to misconduct, insubordination, tardiness, and absence without leave. Since 2022 there have only been seven Article 15s issued. This is due, in part, to commanders not pursuing Article 15s because Guardsmen exercise their right to refuse non-judicial punishment. When a Guardsman refuses non-judicial punishment, it drives the convening of a court martial. The commanders know a court martial should not and likely will not be convened for these minor offenses. The change in legislation is to streamline and modernize non-judicial punishment to give commanders a better tool to maintain good order and discipline throughout the ranks.
Last year, the Indiana National Guard separated four Guardsmen for sexual assault offenses through administrative separation boards. Charges were not filed by any of the county prosecutors on those cases for various reasons.