Commander’s Indiscretion, Incompetence, and a Failure of Accountability: Why Congress Must Relieve Commanding Officers of UCMJ Authority

The 2020 murder of U.S. Army Specialist Vanessa Guillén did more than thrust the incompetence and corruption of certain military leaders into the national spotlight. Guillén’s preventable death exposed a longstanding systemic injustice—known as “commander’s discretion”—that has enabled unprincipled military commanders to undermine the pursuit of justice, evade personal accountability, and conceal unlawful conduct. In Guillén’s case, as in many others, she reported on multiple occasions that she was sexually harassed by one of her supervisors, yet her chain of command failed to act. Under the Uniform Code of Military Justice, commander’s discretion allows military commanders to investigate, prosecute, and adjudicate alleged criminal and non-criminal offenses within their own units. Military commanders, however, are not subject to prosecutorial ethics or the rules of professional conduct for lawyers, and most of them lack the legal education and training to bring criminal charges against any person. Furthermore, commander’s discretion poses a conflict of interest: commanders could be implicated in the alleged criminal or non-criminal offense. Thus, commanders are incentivized to protect themselves and their careers instead of administering fair and equal justice. This Note proposes three reforms to remediate these issues. First, prosecutorial discretion for all alleged crimes must reside exclusively with each military service branch’s Office of Special Trial Counsel. Second, Congress must create an independent commission to supervise, review, and adjudicate equal opportunity and inspector general complaints and investigations, and must grant servicemembers the right to sue their commanders under the Federal Tort Claims Act for resulting damages. Third, a commander’s use of nonjudicial punishment and administrative reprimands must be recorded and publicized to ensure uniform treatment of all servicemembers within the commander’s own unit.