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DOD moves to take sex assault convictions out of commanders' hands

Defense Secretary Chuck Hagel on Monday ordered the Pentagon's General Counsel to take the necessary steps to end the authority of commanding generals to overturn military court convictions.

The Pentagon will seek legislation from Congress that would remove that authority under the Uniform Code of Military Justice (UCMJ).

Hagel ordered the review after Air Force Lt. General Craig Franklin overturned the sexual assault conviction of Air Force Lt. Col. James Wilkerson.

Wilkerson was court martialed and convicted by a military jury in the sexual assault of a civilian woman at the US Air Base in Aviano Italy. He was sentenced to one year in prison and dismissed from the Air Force.

But under the existing authority under the UCMJ, Franklin overturned the conviction for apparent lack of evidence. 

In a written statement released Monday, Hagel said he is seeking to eliminate the ability of commanders who are the convening authority to overturn convictions for sexual assault or other serious crimes.

Hagel points out that defendants still have the right to appeal convictions through the military judicial system. He also wants to require the convening authority to state in writing any changes they may make in sentencing for major offenses, or any changes that may involve minor sentences.

Under UCMJ, Hagel and Congress are powerless to change Franklin's decision to overturn the conviction of Lt. Col. Wilkerson.

"The Department of Defense has effectively acknowledged that commanders currently have undue influence on post-trial decision-making," Anu Bhagwati, executive director of Service Women's Action Network and a former Marine Corps captain, said in response to the DOD announcement.  "However, post-trial review is only one component of the command-driven system that currently governs how military crimes are handled.

"Unless pre-trial decision-making around investigation and prosecution of offenses is also removed from the hands of commanders and given to impartial prosecutors, military criminal justice will remain a lesser form of justice, both for victims and defendents," Bhagwati said.

Last month, senators on Capitol Hill heard testimony from three ex-service members who were sexually assaulted while on duty.

The push for an overhall in how the military handles reported rapes in its ranks was repeatedly underscored during the hearing by references to Franklin’s decision.

The ruling — which set aside the one-year brig sentence for the convicted rapist — is “yet another example of an abuse of authority taken by a commander that will have a chilling effect on military judges, prosecutors, and juries and inhibit victims from coming forward,” testified Brian Lewis, a former Navy petty officer, who was raped in 2000 by a senior non-commissioned officer service. Lewis became the first male rape survivor ever to testify before Congress about such an assault.

“The epidemic has not been successfully addressed in decades of review and reform by the Department of Defense or by Congress … (There is) inherent bias and conflict of interest present in a broken military justice system,” Lewis testified. “The reporting, investigation, prosecution and adjudication of sexual assault must be taken out of the chain of command and (placed) into an independent office with professional, military and civilian oversight. (The current system) … is another way that the Department of Defense fails us.”

The hearing also marked the first Senate attention to military sexual assault in nearly 10 years.

NBC News’ Bill Briggs contributed to this report.

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