Book Review
Slowing Our Thinking
An Institutional Response to Racial Disparities in Military Justice
Reviewed by Janet K. Mansfield
Daniel Kahneman’s 2011 seminal work on individual judgment and decision-making, Thinking, Fast and Slow,1 provides a useful framework for shaping an institutional response to the persistent existence of racial disparities in our military justice system.
Kahneman argues that human decision-making can be categorized into two separate systems. System 1 “operates automatically and quickly, with little or no effort, and no sense of voluntary control.”2 System 1, however, by necessity, utilizes shortcuts: “systematic errors that it is prone to make in specified circumstances,” and, as System 1 operates unconsciously, it cannot be turned off.3 In contrast, “System 2 allocates attention to the effortful mental activities that demand it, including complex computations.”4
Examination of military justice data, through Kahneman’s lens of System 1 and System 2 thinking, can help identify specific military justice processes that risk System 1 thinking, where unconscious bias and other heuristics that Kahneman describes can unintentionally result in disparate treatment. Within these specific processes, identifying common factors or themes can provide the Army with the opportunity to implement policies and training that encourage the “System 2” or “Slow Thinking” analysis that Kahneman posits will reduce the role of unconscious bias in disciplinary decision-making and thereby reduce disparities in our system.
Pending recommendations from the Internal Review Team (IRT) on Racial Disparities in the Investigative and Military Justice Systems5—emphasizing additional due process, oversight, and training—offer initial policy and process changes that impose guardrails to protect against the fast thinking Kahneman describes and provide a path forward to address the disparities that erode trust in our system.
The Challenge: Racial Disparities in the Military Justice System
Statistical racial disparities have been documented in the military justice system in studies dating back to 1972.6 More recently, the murder of George Floyd and the subsequent nationwide interest in racial issues in law enforcement and civilian judicial systems brought a renewed focus on racial disparities in the military justice system. A series of new reports, detailed below, provide more data and analysis that allow the Army to focus its efforts on specific stages of the military justice system and to develop institutional strategies and policy to reduce disparities where they persist.
2019 Government Accountability Office Report
In a House report accompanying the National Defense Authorization Act for Fiscal Year 2018, Congress tasked the Government Accountability Office (GAO) with assessing the Military Services’ ability to collect race and ethnicity data in investigations and disciplinary actions and determine whether or not disparities exist in the military justice system.7 The resulting GAO report, Military Justice: [DoD] and the Coast Guard Need to Improve Their Capabilities to Assess Racial and Gender Disparities,8 included a multi-variate analysis of military law enforcement and judicial data. The GAO looked at four specific data points: subjects in recorded law enforcement investigations, referral to general and special courts-martial, findings at court-martial, and the severity of sentences (measured by punitive discharge and more than one year in confinement).9 The investigation found that, across the Department of Defense (DoD), Black, Hispanic, and male Service members were more likely than White or female Service members to be subjects in law enforcement investigation and to be tried in general and special courts-martial when controlling for sex, race, rank, and education.10 However, race was not a statistically significant factor in the likelihood of conviction.11 Minority members were also either less likely to receive a more severe punishment than White members or there was no difference among racial groups.12 The GAO concluded that “disparities may be limited to particular stages of the process,”13 specifically the accusatory and initial adjudicative stages.14
United States Army Holistic Evaluation and Assessment of Racial Disparities in the Military Justice System
Following the release of the GAO report and a June 2020 congressional hearing before the House Armed Services Military Personnel Subcommittee on racial disparities in the military justice system, the Secretary of the Army directed The Judge Advocate General and the Provost Marshal General to complete a holistic assessment of racial disparity in the Army’s investigative and disciplinary systems.15
The resulting Holistic Evaluation and Assessment of Racial Disparities in the Military Justice System (HEARD) attempted a more expansive view than the GAO study.16 The evaluation and assessment looked at fifteen data points across a very broadly defined military justice timeline to determine where disparities exist, where they are exacerbated, and where they are alleviated.17
Specifically, HEARD looked at baseline race and ethnicity data (as compared to end-strength or Army-wide rates) for: accessions waivers for misconduct; random drug testing and referrals to substance abuse programs; Family Advocacy Program substantiation rates for child and spouse abuse; sexual assault and sexual harassment reporting; subjects in law enforcement reports for all offenses and five specific offenses that reflect the spectrum of law enforcement officer discretion; involuntary administrative separations for misconduct, unsatisfactory performance, substance abuse, and entry-level performance and conduct; nonjudicial punishment at the accusatory and findings stages; nonjudicial punishments for Articles 8918 (Disrespect) and 9119 (Insubordinate Conduct) of the Uniform Code of Military Justice; courts-martial at arraignment, findings, and sentencing; Defense Appellate Division issue identification; appellate relief at the Army Court of Criminal Appeals; professional responsibility complaints against judge advocates (JAs) alleging bias; Army Corrections Command disciplinary proceedings; and Army Clemency and Parole Board proceedings.20 For every data point, HEARD identified discretionary actors in the process who were making recommendations or findings—with varying degrees of training, oversight, and due process—that affected the Soldier’s continued interaction with disciplinary systems.21
While comparison of baseline rates without multi-variate analysis that considers and controls for individual demographic characteristics does not establish a statistical likelihood of a different outcome based on race, every over-representation in the process should be seen as a red flag that the process or policy should face additional scrutiny. While HEARD sets forth findings for each racial group, and White Soldiers comprise the majority of subjects across the military justice timeline, the most consistently troubling findings are for Black Soldiers.22 Black Soldiers are over-represented, as compared to end-strength baseline or Army-wide rates, for ten of the fifteen data points.23
For Black Soldiers, disparities exist throughout the timeline. The disparities begin with the accessions process and continue through Army intervention programs and throughout the disposition process.24 There is no single actor or process the removal of which would explain or resolve the disparities. Instead, HEARD identifies discretionary actors for each data point—including recruiters, first-line supervisors, commanders, social workers, substance abuse counselors, law enforcement personnel, and JAs—who are making recommendations or adjudications that will impact the trajectory of a Soldier’s career and interactions with the military investigative and judicial system.25
As in the GAO study, a deeper dive into the data indicates that disparities are substantially reduced as due process and oversight increase in a process. For example, as with GAO, disparities that exist at court-martial arraignment are substantially reduced or eliminated at findings and sentencing.26 The HEARD data also illustrates a similar reduction in disparities from the first reading of nonjudicial punishment to findings or adjudication by commanders.27 Additionally, along the broadly defined timeline of military justice, disparities begin in Army intervention programs and administrative actions in which due process is limited and discretionary actors, including first-line supervisors, lack legal training. Conversely, disparities are alleviated in processes with significant due process and oversight, such as appellate court relief.
Center for Naval Analyses
The Office of the Executive Director for Force Resiliency within the Office of the Under Secretary of Defense for Personnel and Readiness contracted with the Center for Naval Analyses (CNA), a federally funded research and development center, to fulfill the National Defense Authorization Act for Fiscal Year 2020’s requirement to issue guidance that establishes criteria to assess racial disparities and to evaluate their potential causes.28 The contract provided CNA with full access to the Service personnel, law enforcement, and judicial databases.29
While much of the resulting report, Exploring Racial, Ethnic, and Gender Disparities in the Military Justice System,30 is focused on data collection and recommended courses of action for periodic assessments, CNA did conduct a multi-variate analysis of courts-martial referrals and findings, controlling for thirteen variables.31 Replicating both GAO and HEARD, CNA found that while Black Service members were nearly twice as likely to have charges referred to a general court-martial, Black Service members were convicted at lower rates.32 This data allows for two inferences, both of which can be true at the same time: that Black Service members are more likely to be accused of an offense when there was insufficient evidence to establish their guilt, and that the level of due process provided in a court-martial can work to reduce that disparity.
Internal Review Team on Racial Disparity in Military Justice
In May 2022, the Deputy Secretary of Defense directed a ninety-day IRT on Racial Disparities in the Investigative and Military Justice Systems.33 Cognizant of all the preceding studies that have consistently replicated disparities, the IRT did not concentrate on additional data collection or analysis. With access to all Service personnel, law enforcement, and judicial databases, however, the IRT did examine one additional data point that adds to a fuller understanding of the impact of due process and discretion on disparities.
While HEARD looked at baseline race and ethnicity for involuntary administrative separations, the IRT took that a step further and examined characterizations of service in involuntary separations. As Figure 3 below illustrates, while Black Service members comprise 17 percent of the total DoD population and 18 percent of total discharges, Black Service members are overrepresented as 32 percent of general discharges and over 20 percent of other than honorable discharges. Notably, statutory and service regulations provide significantly less due process for Service members with less than six years of service being administratively separated with a general, under honorable conditions discharge than separations with an other than honorable discharge.34
Identifying Common Factors That Alleviate or Exacerbate Disparities
With the benefit of the prior studies and data analysis, the IRT was able to identify three characteristics that appear to impact disparities: due process, oversight, and levels of training for discretionary actors.
Due Process. Data replicated in the GAO, HEARD, and CNA studies indicate that initial racial disparities in courts-martial are reduced, or even eliminated, through the adjudication process. The HEARD report suggests that the same finding applies in nonjudicial punishments, as disparities are reduced between the first reading and adjudication by the commander.35 Similarly, the IRT data on service characterization suggests that additional due process provided in involuntary administrative separations also works to reduce disparities.36 Data can never provide us with the “why” or a qualitative understanding of the causes of disparities, but this data does suggest what should be intuitive to most practitioners: when there is additional due process provided to accused Service members—involvement of counsel and rules that govern evidence and process—disparities will be reduced. However, no system should rely solely on due process in the adjudication of allegations to reduce disparities. As every practitioner would acknowledge, simply being put through a disciplinary process such as court-martial, nonjudicial punishment, or involuntary separation, even if that process results in an acquittal or retention, can have lasting negative effects on a Service member.
Oversight and Discretion. Intertwined with due process, the levels of discretion and oversight afforded to decision-makers in a process can also impact disparities, but at an earlier stage of the process. As the IRT states, “The greatest disparities exist along the continuum where there is significant discretion and limited oversight or procedural protections.”37 While external observers addressing racial disparities in military justice have typically targeted the role of commanders with court-martial convening authority, the IRT rightly focused on the role of first-line supervisors, senior enlisted leaders, and junior officers.38 These more immediate supervisors not only train and develop new Service members but “also help shape how a commanding officer receives information and recommendations for action. It is often these early discretionary decisions made by these junior leaders that move a young Service member from the training and development phase of military service into the investigative and military justice systems.”39
This dynamic should feel familiar to every military justice practitioner who has reviewed a command packet for an involuntary separation or nonjudicial punishment for minor misconduct or unsatisfactory performance. Counseling statements that squad leaders draft, supported by platoon-level leadership, build the case for disciplinary action as opposed to rehabilitation. Standard counseling forms routinely include pre-printed “magic language” intended to comply with regulatory requirements to warn Soldiers of the sometimes seemingly inevitable road to formal disciplinary actions while also sending a clear message to Soldiers that their path has already been determined. Judge advocates risk falling into the same pattern, reviewing routine actions purely for legal sufficiency without questioning whether unconscious bias and other heuristics or inexperience has played a role in determining a Service member’s fate.
Training For Discretionary Actors. Again, intertwined with a lack of oversight for discretionary actors early in the process is the sufficiency of training for personnel making discretionary decisions. The IRT found that “Service members, particularly junior leaders, have not received sufficient training and education to execute their roles in the investigative and military justice systems.”40Senior commanders with convening authority responsibilities have been the primary recipients of legal training that includes the role of unconscious bias in decision-making. However, by the time senior commanders become involved or are asked to make critical legal decisions, subordinates and other discretionary actors in Army intervention programs, such as Family Advocacy or the Substance Abuse Disorder Clinical Care Program, who are not afforded the same level of training, may have established an inevitable path toward formal disciplinary consequences.
Thinking, Fast and Slow provides example after example of how the unconscious mind utilizes shortcuts, heuristics, and cognitive bias to process information and arrive at judgments.
The Response: Finding a Framework in Thinking, Fast and Slow
Thinking, Fast and Slowprovides example after example of how the unconscious mind utilizes shortcuts, heuristics, and cognitive bias to process information and arrive at judgments. Kahneman’s examples will sound familiar to many practitioners, either from an introspective assessment of our own work or in discussing investigations and potential disciplinary actions with law enforcement personnel, Army Regulation 15-6 investigating officers, Army intervention personnel, and members of the chain of command.
Throughout the book, Kahneman presents research on numerous heuristics that System 1 thinking uses to find, more simply, answers to hard questions. Some of these thinking traps are relevant to evidentiary review and advice on disciplinary actions. For example, the halo effect describes when the brain uses a small amount of information to form broader conclusions.41 The priming effect occurs when exposure to an idea, theme, or location causes your brain to pull related associations more readily.42 Cognitive illusions describe the mistaken idea that a poor judgment or decision that happened to turn out well was a well-thought-out judgment,43 which can lead to overconfidence in decision-making.44
Viewing the IRT findings regarding the outsized role of first-line supervisors and junior leaders through the lens of Thinking, Fast and Slow, three heuristics seem particularly applicable to the JA’s role in reviewing actions and advising commanders. Kahneman uses the acronym WYSIATI (what you see is all there is) to name the tendency to use the information at hand as if it were the only or complete information.45 Similarly, Kahneman describes “theory induced blindness” as the concept that once an individual has accepted a theory or judgment, flaws in that theory become harder to recognize,46 and “sunk cost fallacy” to describe the unconscious tendency to continue with a path after investing substantial time and effort, even in the face of contrary evidence.47 Mindful of these three related heuristics, practitioners should view every administrative or nonjudicial punishment action with an eye toward understanding what information is not there and the role of early decision-makers in the pending action.
Understanding the thinking traps in our System 1 thinking can serve two purposes. First, as a check on our work, merely being aware of the thinking traps can allow practitioners to slow their process, question their initial judgments, request additional information, seek input from alternative viewpoints, use checklists, and apply additional levels of independent review. Second, acknowledging the unavoidable nature of System 1 thinking traps should spur policymakers to implement processes and new tools that both encourage System 2 slow thinking and allow discretionary actors, including commanders and JAs, to track the demographics of disciplinary actions and identify trends or red flags.
While Kahneman focuses nearly exclusively on the role of heuristics and biases in individual decision-making, at the close of the book, he turns to where our focus and effort can begin: the role of organizations. As Kahneman writes:
Organizations are better than individuals when it comes to avoiding errors, because they naturally think more slowly and have the power to impose orderly procedures. Organizations can institute and enforce the application of useful checklists, as well as more elaborate exercises, such as reference-class forecasting and the premortem. At least in part by providing a distinctive vocabulary, organizations can also encourage a culture in which people watch out for one another as they approach minefields. Whatever else it produces, an organization is a factory that manufactures judgments and decisions. Every factory must have ways to ensure the quality of its products in the initial design, in fabrication, and in final inspections. The corresponding stages in the production of decisions are the framing of the problem that is to be solved, the collection of relevant information leading to a decision, and reflection and review.48
An Institutional Response to Slow Our Thinking: IRT Recommendations
The IRT, focused on the common themes of due process, oversight and transparency, and training and education, all derived from data and qualitative research, proposed seventeen recommendations,49 which Kahneman would no doubt agree are examples of the “orderly procedures” and concrete actions that the institution can impose to reduce individual fast thinking and the resulting cognitive errors and biases.
Training and Education
The IRT’s first set of four recommendations50 focus on the role of training, particularly for populations who have not traditionally received education on their legal roles and responsibilities or the impact their discretionary decisions can have in predicting a Service member’s involvement in future disciplinary actions. The force must be educated on the broad continuum of military justice, with an understanding of both the System 1 cognitive biases we all share and the effect that early decisions have on a Service member’s career trajectory. In hindsight, it is easy to trace an inevitable path to punitive measures from an initial counseling to reactionary measures that reinforce or reaffirm an existing impression.
While the first two IRT recommendations relate to standardizing and improving equal opportunity and leadership training and education across the DoD, two additional recommendations directly target three groups of discretionary actors: first-line supervisors, military police investigators, and officers tasked with command-directed investigations.51 The IRT notes that these actors’ “decisions early in the process have a significant cascading effect that can set the Service member on an irreversible path, either toward improvement and inclusion or discipline and discharge.”52 Recommended training for first-line supervisors is modeled on the Senior Officer Legal Orientation, a best practice provided at The Judge Advocate General’s Legal Center and School for officers assuming convening authority duties.53 The Judge Advocate General embraced this recommendation in 2022, directing the development of a professional military education curriculum for junior noncommissioned officers and officers. Similarly, the Provost Marshal General has already instituted culturally competent policing training at the U.S. Army Military Police School. Additionally, the IRT recommended enhancing and standardizing the training for investigating officers.
Service Member Protections: Due Process
The IRT’s next set of eight recommendations54 addresses additional due process protections and is aimed directly at the underlying data that illustrates the role of due process in reducing disparities. Recommendations standardize rights to consult with counsel for nonjudicial punishment, particularly in the sea Services, and full representation at summary courts-martial.55
While the Army already provides many of these protections, two recommendations have potential to reduce disparities in processes that may lack sufficient safeguards: first, criminal titling, indexing, and expungement from law enforcement databases and second, legal reviews of all involuntary administrative separations.56 Higher standards of proof for indexing—an independent legal review by an attorney outside the prosecution team—and an enhanced, independent process for expungements would provide better protections commensurate with civilian practice at a stage in the process in which disparities are pronounced. While Army attorneys typically conduct a legal sufficiency review for involuntary administrative separation actions, the IRT recommendation would implement into policy a more comprehensive review that requires both JAs and commanders to address issues Service members raise and to consider the impacts of service characterization. The institution, as Kahneman would recommend, can put in place policy and process that force slow thinking and avoid the pitfalls Kahneman would see stakeholders fall into while reviewing their own work.
Oversight and Transparency
The final five IRT recommendations57 focus primarily on data collection and analysis and transparency. These recommendations would standardize the collected data, provide for collection of additional data items such as administrative investigations, and provide data analysis to commanders and JAs (including defense counsel) in a timely manner. Our ability to see ourselves clearly depends on accurate, consistent data collected over time to identify trends. While many JAs have reported anecdotal examples of what they perceived to be different outcomes for Soldiers with similar offenses, others have gone further and pulled data from memorandums of reprimand, administrative separations, and nonjudicial punishments to educate not only themselves but also the chain of command they are advising. At the Pre-Command Course at Fort Leavenworth, Kansas, Judge Advocate General’s Corps leadership encourages incoming brigade and battalion commanders to request demographic data on disciplinary actions from staff judge advocates, which allows commanders to see themselves and self-correct, or self-reflect, accordingly.
Conclusion
After reading Thinking, Fast and Slow, one could conclude/despair that there is no way to untrain our brains from eliminating System 1 thinking in our individual or collective decision-making across the military justice timeline. This despair is heightened when we acknowledge the persistence of statistical racial disparities in the judicial system despite sustained focus on achieving diversity, equity, and inclusion and a better understanding and acceptance of the neuroscience underlying unconscious bias.
However, Kahneman’s decades of research and enduring influence offer our institution a way forward to continue to directly impact the factors that force individual System 2 slow thinking and reduce the risk of disparities: due process, oversight, and training aimed at all discretionary actors. While study after study has verified statistical disparities, the IRT is the first attempt to look deeper and identify factors that can chip away at those disparities, which undermine trust and readiness and cause real harm to Service members.
The Army should not pause at this moment. Recognizing our opportunity to push forward, policymakers can continue to develop initiatives—such as further limiting discretion in adverse administrative actions and involuntary separations or providing additional and elevated levels of review—that complement or even extend the IRT recommendations. In addition, the Army should explore avenues to address past disparities. For example, Army leadership could consider the feasibility and advisability of issuing a Kurta-like memorandum, similar to guidance on sexual assault and mental health conditions, which could allow the Army Board for Correction of Military Records to liberally consider discharge upgrade requests from applicants who present evidence of disparate treatment based on race in the discharge process.58 At its core, all of our ongoing and future efforts to address racial disparities in our system embody two principles and fundamental elements of leadership we have always valued: seeing ourselves clearly and taking care of people. TAL
Ms. Mansfield is an attorney in the Criminal Law Division, Office of The Judge Advocate General at the Pentagon.
Notes
1. Daniel Kahneman, Thinking, Fast and Slow (2011).
2. Id. at 105.
3. Id. at 25.
4. Id. at 21.
5. See Memorandum from Deputy Sec’y of Def. to Senior Pentagon Leadership et al., subject: Internal Review Team on Racial Disparities in the Investigative and Military Justice Systems (3 May 2022).
6. See 1 U.S. Dep’t of Def., Task Force on the Administration of Military Justice in the Armed Forces (1972).
7. H.R. Rep. No. 115-200, at 126-27 (2017).
8. U.S. Gov’t Accountability Off., GAO-19-344, Military Justice: [DoD] and the Coast Guard Need to Improve Their Capabilities to Assess Racial and Gender Disparities (2019) [hereinafter GAO-19-344].
9. Id.
10. Id. at 38.
11. Id. at 38-39.
12. Id.
13. Id. at 67-68.
14. See id. at 67.
15. Racial Disparity in the Military Justice System – How to Fix the Culture, Hearing Before the H. Armed Servs. Comm. Subcomm. on Mil. Pers. 116th Cong. 2-3 (2020) (statement of Lieutenant Gen. Charles N. Pede, Judge Advoc. Gen., U.S. Army); Midyear 2021: How U.S. Military Is Driving Criminal Justice Reform, ABA (Feb. 17, 2021), https://www.americanbar.org/news/abanews/aba-news-archives/2021/02/midyear-2021—how-u-s—military-is-driving-criminal-justice-refo.
16. U.S. Dep’t of Army, Holistic Evaluation and Assessment of Racial Disparity in Military Justice (2022) [hereinafter HEARD Report].
17. See id. at iii.
18. UCMJ art. 89 (2021).
19. UCMJ art. 91 (2022).
20. See id. at vii.
21. Id. at iv.
22. Id. at v.
23. Id. at v.
Black Soldiers had the highest percentage of drug and alcohol accessions waivers and are overrepresented as compared to their baseline end strength as: substantiated incidents of family abuse by the Family Advocacy Program; illicit drug positives on random urinalysis results; drug and alcohol clinical referrals; as subjects and victims in unrestricted reports of sexual assault; as subjects in law enforcement reports (regardless of the degree of discretion given to law enforcement officers); as recipients of administrative separations in lieu of court-martial and for misconduct; as recipients of nonjudicial punishment; as recipients of nonjudicial punishment for military discipline offenses; and as Soldiers arraigned at a court-martial.
Id.
24. See id.
25. See, e.g., id. at 8 (describing the discretionary actors in the drug testing process).
26. See id. at 58-67.
27. Id. at 44-47.
28. National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, sec. 540I, 133 Stat. 1198, 1370 (2019).
29. Amanda Kraus et al., CNA, Exploring Racial, Ethnic, and Gender Disparities in the Military Justice System, at i (2023).
30. Id.
31. Id. at ii. The CNA study controlled for ethnicity, gender, fiscal year, marital and parental status, home of record, education level, UIC location, paygrade/rank and over age status, DoD occupation, enlistment waiver indicator, prior court-martial or nonjudicial punishment indicator, offense type indicators, and offense counts. Id. at 33-35.
32. Id. at iii.
33. Memorandum from Deputy Sec’y of Def. to Senior Pentagon Leadership et al., subject: Internal Review Team on Racial Disparities in the Investigative and Military Justice Systems (3 May 2022).
34. See generally U.S. Dep’t of Army, Reg. 635-200, Active Duty Enlisted Administrative Separations (28 June 2021) (prescribing policies and standards for Soldier administrative separations).
35. See HEARD Report, supra note 16, at 44-47.
36. See supra figure titled “DoD-Wide.”
37. U.S. Dep’t of Def., Internal Review Team on Racial Disparities in the Investigative and Military Justice Systems 20 (2022) [hereinafter IRT Report].
38. Id. at 21.
39. Id. at 21-22.
40. Id. at 22.
41. Kahneman, supra note 1, at 82-83.
42. Id. at 55-57.
43. Id. at 27.
44. See id. pt. III.
45. Id. at 86-88.
46. Id. at 277.
47. Id. at 345-46.
48. Id. at 417-18.
49. IRT Report, supra note 37, at 23-33.
50. Id. at 22-26 (recommending to: 1) develop core competencies for training across the DoD; 2) train leaders on talent management; 3) enhance legal training for all discretionary actors, with focus on first-line supervisors; and 4) train all military police investigators and officers who conduct command-directed investigations).
51. See id.
52. Id. at 25.
53. See JA Professional Military Education / Command Courses: Senior Officer Legal Orientation (SOLO), Judge Advoc. Gen.’s Legal Ctr. & Sch., https://tjaglcs.army.mil/en/pmecourses (last visited Oct. 19, 2023).
54. IRT Report, supra note 37, at 26-31 (recommending to: 5) adopt modern policing practices including body-worn cameras and recording suspect interviews; 6) provide right to counsel prior to nonjudicial punishment proceedings and appeal; 7) restrict the use of “vessel exception” for nonjudicial punishment to operationally necessary circumstances; 8) provide right to representation at summary courts-martial; 9) prohibit accused’s commanding officer from serving as summary court-martial officer; 10) include additional due process in administrative separation proceedings for Service members not otherwise entitled to a separation board; 11) provide additional due process for titling, indexing, and expunging data in Federal criminal databases; and, 12) increase compliance with Article 137, Uniform Code of Military Justice for training on punitive articles).
55. See id.
56. See id. at 29-30.
57. See id. at 31-33 (recommending to: 13) improve and standardize data collection across all stages of investigative, administrative, and military justice systems; 14) develop processes and policy to timely analyze and report data to commanders and key stakeholders; 15) provide commanders with “detection tools” to address potential areas of disparity; 16) establish a principal staff assistant for law enforcement at the Office of the Secretary of Defense level, and; 17) institute appropriate oversight mechanisms to assess the impact of actions taken to address disparities).
58. See Memorandum from Acting Under Sec’y of Def. for Pers. and Readiness, to Sec’ies of the Mil. Dep’ts, subject: Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment (25 Aug. 2017), https://dod.defense.gov/Portals/1/Documents/pubs/Clarifying-Guidance-to-Military-Discharge-Review-Boards.pdf; see also Memorandum from Sec’y of Def. to Sec’ies of the Mil. Dep’ts, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder (3 Sept. 2014); https://www.secnav.navy.mil/mra/bcnr/Documents/HagelMemo.pdf.