DoD News Briefing: Francis M. Rush, Principal Deputy Assistant Secretary
relate to potential for domestic violence: chaplain services, alcohol counseling and programs, programs on financial management for junior members, and so this, the domestic violence, is an issue that we take very seriously. Having said that, I'll take your questions.
Q: Can you give us an indication as to how many people could be affected by this interim policy?
A: I think the interim policy and the law apply to qualifying misdemeanor domestic-violence convictions. We suspect that that number -- we don't know what the number is. We anticipate that we will find that it is very, very low. We are setting up, as of 1 November, a working group -- I've said this is an interim policy. The working group will look at the issues that we face that may come up in personnel practices and assignment practices and so on and report back on the first of January, at which time we will consider what changes we may need to make to the policy.
Q: When you say that the policy is effective immediately, you give the impression that immediately people will have guns taken away from them who have been convicted of a misdemeanor domestic violence, but that's really not what's happening, is it? Effective immediately, you are going to do what?
A: Effective immediately and direct, the interim policy is conveyed to the services. The interim policy says the services need to take the measures necessary to ensure that the service members do not have a qualifying misdemeanor conviction. And we have included with our letter the implementing directive-type memorandum, a form for the services to use for each member that lays out to the member what the law is, lays out what a qualifying misdemeanor conviction is, and asks them to respond as to whether they do not, they do, or they don't know if they have such a conviction, and then lays out steps to go on from there in the case where a member says, yes, I do, or I don't know if I do.
Q: How long do you anticipate before you will actually know? Is the survey going out today?
A: The form is going out today. The policy is going out today. It will be applied right away by the services as it goes out through their command channels. They know it's coming and have their own measures in place. It won't happen immediately. It won't be in place tomorrow, obviously, but I think it's fair to say in general that the military services know how to do this type of thing, and will do an efficient job of it.
Q: Why do you anticipate that the number will be low? When you check with people who have worked in domestic violence, they say that the overwhelming majority of offenders are young males, which is exactly what the overwhelming majority of the military is. There are literally tens of thousands of cases of spousal abuse in the military.
A: I think that -- and one of the things, as I said, that the Department is concerned with, domestic violence, and we do see domestic violence; but in talking with our Family Advocacy Program folks, here is what they tell me. They say what we see is not severe, it's not chronic, it doesn't involve battering -- not to say that never happens, but that's what they see -- and it's of the push-and-shove type of domestic violence.
Q: Well, push and shove is sufficient, isn't it?
A: Probably push and shove would not be sufficient in most cases to get a civil misdemeanor conviction with counsel and before a jury, which are the main elements under the law for a qualifying misdemeanor conviction.
Q: So when you say "very low," I mean, are you talking a handful, or are you talking -- I mean, we're talking a population of 1.4 million here, so are you talking about a few dozen? Are you talking about several hundred? What are you talking about?
A: I would talk in terms of a very low percentage of the force. I don't know whether it will be a dozen or a hundred. We have no way of knowing. We would expect that it would be low. We would expect that it would be low, one, because when people enter the force, most are young and unmarried and are unlikely to bring such a conviction into the service with them. Our recruiters have told us this is not something that they typically see, but, again, we haven't collected evidence on that; and under the policy we will not waive any such conviction from today forward.
Q: What will actually happen to a soldier once it's found that he or she has a conviction?
A: I'm sorry?
Q: What are the steps involved? What happens once you find that a soldier has a conviction? What happens? They lose their --
A: Once we have a soldier, sailor, Marine, airman with a conviction, we have for those before the 30th of September 1996, if that conviction was before that date, we say to the services, you must ensure that that member does not have access to a weapon that has been issued and that they are advised to turn in any weapon that they personally own, because that is what they must do in order to comply with the law.
Q: And what if the soldier is in a key position of some sort?
A: If he is in a key position, the policy would say for those before 30 September 96, that no adverse action would be taken at that time against a member. If he can't be utilized in that position, then he would be put in a position that he or she could be utilized. Our policy after 30 September 96 would be a more recent qualifying conviction would allow the services some flexibility with respect to adverse action if it were warranted on other grounds other than this particular law. And that's one of the things the working group will be looking at.
Q: So if tomorrow a soldier in Bosnia said to his commanding officer that I was convicted of domestic violence, what would happen to that soldier?
A: If tomorrow he is so certified, he would be no longer issued a weapon, and he would be advised to turn any weapon that he had, which is his or her responsibility, and the commanding officer would take the appropriate action with respect to that individual. Now, again, we don't anticipate that that's going to be many people, whether it's in Bosnia or in California.
Q: Are there any combat exemptions? For instance, a fighter pilot who does not normally carry a sidearm, but when he goes over enemy territory does in the event that he is shot down? What would happen to that fighter pilot?
A: In terms of our policy does not apply to crew-served weapons. It doesn't apply to tanks, and it doesn't apply to fighter aircraft.
Q: No, but what about the sidearm the pilot carries?
A: If the pilot was in a place where he was issued a sidearm, as a routine part of his mission, that sidearm would be withdrawn, the commander would have to make a judgment as to the utilization of that pilot. Once again, I would be surprised if that were a case that we would see or certainly not see very often.
Q: This law was passed a year ago. What took so long? What held up the implementation, the formulation and implementation of this law?
A: We wanted to make sure that we -- first, it applies to almost everyone who wears a uniform. Secondly, we wanted to make sure that, after consulting with Treasury that has responsibility for the implementation of the Act and the Department of Justice, that we could implement it fully and fairly and reasonably within the context of the military services and consistently across the services.
Q: If when the questionnaire arrives in a soldier's mail box, that soldier says either falsely says, I have never been convicted, or says, I refuse to answer this because it's an invasion of my privacy, what happens in those instances?
A: In those cases, they will be dealt with on an individual case if the individual either says I don't know or does not so certify. The responsibility is with the service member.
Q: What incentive do the service members have to turn themselves in? I mean, if --
A: There is a responsibility under the law on the individual to not possess a firearm, so the individual has the potential, if they don't follow the law themselves, if they don't tell us, if they don't turn in their weapons, then they are facing, as I understand it, a felony conviction under the law. So what we will do is notify the individual, and that's part of what's on the form, is explaining what's the law and how it applies to the individual as well.
Q: Can I back you up on that, just to make sure I understand you? If a service member refuses to fill out this form because it's voluntary, but then you subsequently find out somehow that he had been convicted of domestic violence, he would be committing a crime by continuing to have carried that gun, not for having withheld the fact by not filling out the form.
A: I wouldn't expect many service members to refuse to fill out the form. Service members, in my experience, do fill out the forms that they are asked to fill out.
Q: Do you have any means on checking on that, checking?
A: In terms of checking, if someone says, "I don't know," the way to do that, I think, in most cases -- and let me say again that's one of the reasons this is an interim policy; so should any of these things, even though we don't anticipate, come up, then we can have a reasonable way for the services to deal with those issues.
Q: Why are you not granting discharge authority for people convicted before September 30th? Are you seeking exemptions, pending further guidance on discharge?
A: I think that service members are held to a high standard, and the individual who gets into trouble on any line with civilian law or with military law is unlikely to be able to make it through the system and continue to serve to be reenlisted, and so on. So that is basically a look-back provision saying, until the first of January, when we've got your feedback on what's happening, that we will not take adverse action against a service member.
Q: Except to reassign them to a job.
A: Except to reassign them or to utilize them temporarily in a different place and to do what we need to do to comply with the law.
Q: What about an infantryman who uses a weapon basically every day? They would be reassigned to administrative duties or something else?
A: In the same way that they would be treated if they broke their leg.
Q: And you say the policy is effective immediately, and I guess there is some ambiguity in that. If I am a soldier, I know I've been convicted of spousal abuse in some court, and I am carrying a weapon tomorrow or the next day, am I in violation of the law? Have I already committed a felony?
A: I think it's likely. I wouldn't answer that one definitively. That's one of the things I would turn back to counsel, but I think that the member must have received that notice first, would be my guess, and that would simply be a guess.
Q: There is a reference in something in here in the blue-top with a memo about seeking regulatory or legislative changes or consider the need for legislative and regulatory changes. The implication is, or at least to me, is that the reason this is an interim policy is you're going to try and get out from under it.
A: I wouldn't read that implication into the law. We have not tried to get out from under it; we have tried to implement it fully and fairly, but I think it's prudent to, as we implement it, to see what happens and leave options open; but that's not the intent.
Q: When the law, the amendment was first coming around, didn't you try and get the military exempted from it?
A: When the law came around, it did not exempt the military; and we, to my knowledge, made no efforts to try to do that.
Q: In this same paragraph it talks about the line between September 30th, before and after, it says after September 30th. Convictions after that date, you could be discharged or separated if a basis for discharge or separation exists. Can you give us some examples of what are you talking about there, "the basis exists"?
A: If there were another basis perhaps in conjunction with the Lautenberg, that we would indicate to the service, if the individual had done something we were aware of, that act brought the viability of that individual for continued military service into question, we would not preclude the services from taking the type of action that they would take, they would have taken a year ago or two years ago to separate an individual who did commit that act.
Q: When will you know definitively, months or a year, how large a body of people that you're dealing with? When will your questionnaires be back to a sufficient point?
A: We have asked the services' inspector general to report back to us at the first of the year, and we expect that they will be able to do that. So, in terms of the numbers, I guess we will be able to tell you that after the new year.
Q: Are these convictions only in civilian courts, or are there court-martials for this or Article 15's?
A: Here is my understanding. I've used the word "qualifying misdemeanor," and I think that there is some indication of that in the packet that you have explaining what that is. In the military system, among the factors that make it a qualifying is that you have counsel and that you have an opportunity for a jury trial. That is not something that happens in Article 15's, nonjudicial punishment. It is not something that happens in summary court-martials; and, therefore, it is most likely if the individual is still serving, that we will find that it was a civilian court conviction.
Q: What if an individual many years ago, and this happened many years ago, because you didn't have domestic violence cases, per se, but there was a criminal record of an assault case? Does that apply in this case?
A: I think you would have to -- the law is fairly clear on what a qualifying misdemeanor conviction is for domestic violence. There may be cases where there is a gray area. Again, as we implement the policy, we will see if such cases are there.
Q: Do the chairman have to take this questionnaire also?
A: It applies to all military personnel.
Q: You said earlier that under this policy, you will no longer waive conviction from today forward. Do you have, I guess, for entry members?
A: For an entry member, that's right.
Q: Do you have any sense of how many people have been waived for this in the past, a percentage, some idea?
A: That is not data that we keep with respect to waivers for this particular matter. In talking with the recruiters and the recruiting officers, we believe that to be a small number.
Q: Do you know what the rate of domestic violence convictions is in the general population, and do you believe the military would reflect the general population?
A: I think two things. We don't know what that rate is. There is not a good number, to our understanding, of these specific types of convictions nationwide. The military is clearly a reflection of the society at large. We have our problems, as does the society at large. In general, we hold military members to a high standard. It is a high standard to get in. It's a high standard to stay in. My sense is we would probably be better; we wouldn't be worse.
Q: Can I try and clarify once more? If you have a conviction after September 30th, you are not allowed to be issued a weapon or use a weapon, but you are not necessarily facing a forced discharge. Is that correct?
A: You could have that, that situation, that you could not -- and, again, that's one of the reasons --
Q: They could, like the other people, be reassigned to administrative duties.
A: They could be, at least during the interim policy.
Q: But it's more likely you would be discharged -- right? -- or is it completely up to -- in this year interim?
A: During the period of the interim policy, if you have an older conviction, we've asked that the services, yeah.
Q: But for the people who may have done it in the last 12 months, they may or may not be discharged.
A: Depending upon whether they have been discharged prior to the policy, basically.
MODERATOR: Thank you very much.