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March 15, 2013The Air Force has come under fire from lawmakers over its latest controversy related to sexual misconduct.

The backlash stems from a late-February decision by 3rd Air Force Commander Lt. Gen. Craig Franklin to overturn the conviction of Lt. Col. James Wilkerson, former 31st Fighter Wing inspector general at Aviano AB, Italy.

A military jury had found Wilkerson guilty of several violations of the Uniform Code of Military Justice, including abusive sexual contact and aggravated sexual assault against a female civilian base employee, but Franklin overturned the conviction after ruling there was not enough evidence.

Article 60 of the Uniform Code of Military Justice gives Franklin the right as convening authority for the court-martial to overrule the jury. However, his decision has infuriated both Republicans and Democrats in Congress who contend that it sets bad precedence and will discourage victims of sexual assault from coming forward.

During a day-long hearing of the Senate Armed Services Committee's personnel panel on March 13, legislators debated the merits of changing the UCMJ to take away such power from the chain of command and place it instead in the hands prosecutors.

One day later, the House Armed Services Committee posted a letter to Defense Secretary Chuck Hagel at its website. The letter, signed by a bipartisan group of committee members, including Rep. Buck McKeon (R-Calif.), HASC chairman, and Rep. Adam Smith (D-Wash.), ranking member, questioned the validity of the military law.

"How is a convening authority's ability to overturn the adjudged sexual assault conviction and sentence of a general court-martial, as in the case of Lt. Col. James Wilkerson . . . appropriate and consistent with justice, good order, and discipline, and the department's policy of zero tolerance for sexual assault?" asked the lawmakers.

US Air Forces in Europe-Air Forces Africa spokesman Lt. Col. Paul Baldwin told the Daily Report on March 14 that Franklin "is not currently doing interviews" or providing a statement. However, Baldwin said last week that Franklin made his decision "after a careful, lengthy, and thorough deliberation."

"Lieutenant General Franklin concluded the evidence presented at trial did not amount to proof beyond a reasonable doubt, and he declined to approve the conviction," explained Baldwin.

Franklin, continued Baldwin, "acted within his authority in deciding the conviction should not stand. Under these circumstances, Lieutenant General Franklin would not have performed his duties had he taken any other course of action."

Air Force Judge Advocate General Lt. Gen. Richard Harding told Senate legislators on March 13 that both the military jury that convicted Wilkerson and Franklin, who overturned the conviction, successfully "did their duty" despite reaching opposing decisions.

"I'm not going to conclude that justice was or was not done. What I will conclude is that all parties did their job. From my review, all parties did what they were asked to do by the law," said Harding.

He also argued that Article 60 of the UCMJ remains a critical tool for commanders charged with maintaining a disciplined force.

"A convening authority's ability to exercise some accountability on every aspect of an airman's, soldier's, sailor's, marine's behavior is incredibly important [in] creating a responsive, disciplined force," said Harding.

Overturning convictions through clemency is extremely rare, according to data that the Air Force provided. In the last five years, Air Force convening authorities "disapproved" or amended the sentence in just five of 327 sexual assault cases, including Wilkerson's, Air Force spokeswoman Lt. Col. Laurel Tingley told the Daily Report on March 14.

Sen. Kirsten Gillibrand (D-N.Y.), chairwoman of the SASC's personnel panel, said, "Congress would be derelict in its duty of oversight if we just shrugged our shoulders" at the estimated 19,000 sexual assaults that occurred across the Defense Department in 2011. She questioned the military's prosecution rate, saying a system where "less than one out of 10 reported perpetrators are taken to trial" clearly is not working.

Tingley said there is no "national clearinghouse" that allows for an easy comparison of civilian versus military convictions rates in sexual assault cases. However, the Rape, Abuse, and Incest National Network offers the closest comparison, she said.

According to various RAINN sources, only 46 out of every 100 alleged rapes are reported to police. Of those, "12 lead to an arrest, nine get prosecuted, and five lead to a felony conviction," said Tingley. That is roughly a 26 percent prosecution rate and a 56 percent conviction rate (five out of nine prosecutions).

That closely aligns with the Air Force's 22 percent prosecution rate (79 preferrals out of 362 reported cases) and 48 percent conviction rate (21 convictions out of 44 prosecutions), she said.

"It is important to note that RAINN data [are] based upon reported rapes, whereas in the Air Force, sexual assault is a broad description of all unwanted sexual contact," wrote Tingley in an e-mailed response to questions.

The Fiscal 2013 defense authorization act required the Defense Department to conduct an independent review and assessment of the way it investigates, prosecutes, and adjudicates crimes involving adult sexual assaults and related offenses.

As part of its duties, the Response Systems Panel is tasked with comparing civilian and military conviction rates, said Tingley.

Hagel and the SASC and HASC chairmen and ranking members will appoint the nine-member panel, which then has 18 months from date of appointment to deliver a report.

In addition, the Defense Secretary has directed the Joint Services Committee on Military Justice to conduct a similar review.

"Although overlapping the [authorization act] study, the JCS will conduct its study as planned, comparing our prosecution and conviction rates with those of a local jurisdiction," said Tingley.

Those results are due by April 30.

"This localized study will identify comparable data, suggest standardized questions for the RSP military advisors, and submit lessons learned to [the Defense Secretary.] The JSC study will also allow the military to respond to other studies and litigation this year, while the RSP has the time to conduct a more comprehensive review," she added.