Reuters: U.S. troops battling racism report high barrier to justice
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By PHIL STEWART, M.B. PELL and JOSHUA SCHNEYER
Reuters- September 15, 2020
By the time he saw a swastika scrawled in the bathroom at Barksdale Air Force base in October 2018, Deven Sherk was already disillusioned with how the Air Force handled racism complaints. The Black airman had filed a complaint alleging discrimination that June when a fellow airman, a white man, hung a noose near him on the base.
“I felt that was a direct threat to my life,” said Sherk, who was a staff sergeant specializing in B-52 bomber maintenance at the time.
Along with the noose, he reported seeing a whip on display at the hangar where he worked, with slogans including “Fuckin Attitude Adjuster” written in marker. Sherk says he never felt the Air Force’s Equal Opportunity office took seriously his complaints of racism. So, he decided against filing a formal complaint about the swastika.
By February of 2019, the Air Force said it quietly censured several people over Sherk’s complaint, but the sergeant’s career was over. He says he found himself pushed out of the service with an honorable discharge after suffering depression and anxiety.
“Incidents like these must stop,” an Air Force spokeswoman said of Sherk’s case. “We are committed to ensuring our Air Force is a place of respect, diversity and inclusion.”
As America confronts the question of systemic racial injustice, the U.S. military, which has long promoted itself as an egalitarian system focused on merit and achievement, is undergoing its own moment of reckoning.
Earlier this summer, as the military braced for a deployment amid nationwide protests over police violence against Black Americans, top defense officials acknowledged a lack of diversity among leadership. The Air Force’s newly appointed first Black chief of staff supported these concerns when he shared his own stories of bias during his climb to the top. The Army is grappling with calls to rechristen bases named for Confederate generals. And the Pentagon has launched an initiative to “ensure equal opportunity across all ranks.”
But interviews with dozens of current and former U.S. service members reveal deep skepticism about whether coming forward with concrete allegations of discrimination will be beneficial. Especially daunting, they say, is using the complaint process specifically set up to address concerns from members of the Armed Forces.
So-called Equal Opportunity offices are located on U.S. military bases around the world, established to give troops access to some of the protections against discrimination that American civilians can tap through a separate system, U.S. Equal Employment Opportunity. Troops, who are not considered employees, have the right to seek investigations through EO offices.
But many service members, including Sherk, say the EO process is often a dead end, resulting in little action, or worse, backfiring on the complainant. That’s because filing an EO complaint is often viewed as an act of defiance in the military, they say.
Data obtained by Reuters show that service members rarely file formal EO complaints when compared to their civilian employee counterparts within the Defense Department. The Army, Navy, Air Force and Marines employ some 1.3 million active duty personnel, about double the civilian workforce. But civilians file far more complaints than troops.
Last year, 71 sailors formally complained of discrimination on the basis of race or color, one-sixth as many as the 404 complaints filed by the Navy’s smaller civilian workforce. Navy uniformed personnel filed about 21 complaints per 100,000 personnel while their civilian co-workers filed about 200.
The Army saw 107 formal Equal Opportunity complaints by soldiers involving racial discrimination in 2019, one-fifth the number filed by its civilian workforce. The Air Force reported 92 formal complaints in 2019 involving race and color from a force of 400,000 active duty or reserve airmen. That was a third of the number filed by civilians in the service.
The vast gap between uniformed military complaints and those of their civilian counterparts in the Army, Navy and Air Force has not been previously reported. Few troops’ complaints were substantiated in 2019: 6% in the Navy and 18% and 35%, respectively, in the Air Force and Army. Reuters does not have sufficient data to compare those rates to outcomes of civilian complaints.
“There is a career downside risk to coming forward and rocking the boat,” said Rep. Jackie Speier, a California Democrat who leads the Military Personnel panel on the House Armed Services Committee.
In corporate America, and in government jobs, too, employees can sue their employer over discrimination. Not so for U.S. troops, who enter a process in which the military investigates itself, said Don Christensen, a retired chief prosecutor for the Air Force.
“There’s not much incentive to use the process because it rarely works, and they rarely rule in their favor,” said Christensen, who leads the advocacy group Protect Our Defenders, whose research has drawn attention to racial discrimination in the military.
Informal complaints focus on finding an agreeable resolution and can include mediation. The formal complaints process is the most in-depth form of inquiry.
That system begins when a service member fills out an EO form that kick-starts the process. From there, an investigating officer is appointed by a commander and conducts interviews and collects evidence, from photographs to emails and evaluations, that could indicate racial bias.
EO officials work to ensure that service members understand the process and are kept up to date on developments. But ultimately, military commanders decide whether a complaint is founded and, if so, what punitive action should follow. A military judge advocate can provide input.
“There’s not much incentive to use the process because it rarely works, and they rarely rule in their favor.”
The Pentagon, presented with Reuters’ findings, said survey data show service members prefer to take complaints to their chain of command instead of an EO office. And, the military explicitly encourages troops to first attempt to resolve their cases at the lowest command level before going to an EO officer.
Some say the system is wrought by an inherent conflict of interest. The only way to improve the process “is to completely remove the reporting system from the chain of command,” said Captain Deshauna Barber, a Black officer in the Army Reserve and activist on behalf of women service members.
The end result of fewer complaints, Reuters found, is that the military is likely less aware of discrimination happening day-to-day than it would be if U.S. troops were incentivized to come forward.
The Pentagon said it encourages reporting of “problematic behaviors.” But it acknowledged troops’ concerns about the EO process and said Defense Secretary Mark Esper has directed the military’s independent Inspector Generals to investigate the efficacy of the program.
Disparity at the top
The U.S. armed forces have great racial and gender diversity at lower ranks, but the top brass is predominantly white and male, a fact made plain in a revealing photo last year of President Donald Trump surrounded by American military leaders, with not a single woman or Black officer in sight at the time.
From the halls of the Pentagon to the military academies, minorities who make up more than a third of the armed forces are starting to speak out about a culture that, they say, creates a feeling of exclusion.
After becoming the first Black American to be the top-ranked cadet at West Point in 2018, Army First Lieutenant Simone Askew said in a letter circulated online that she found a photoshopped picture of her, slipped under her door, “with a monkey’s face over my own.”
“More racist caricatures and comments continued to circulate online. One of the popular images even depicted me as Satan himself,” Askew wrote. She declined to comment.
Askew’s testimony was included in a June letter by a group of prominent graduates and cadets at the U.S. Military Academy at West Point that denounced pervasive racism in the Army’s most hallowed institution. It came less than two weeks after President Trump delivered a commencement address there.
“I had a racist roommate that would call me the n-word and spit on me,” said a cadet in another example cited in the letter.
The U.S. Military Academy said it received the letter and that the West Point Inspector General “has begun a comprehensive review of all matters involving race.” A spokesman added, “The Academy expects all Cadets to be treated with dignity and respect.”
Air Force General Charles Brown Jr made history on August 6 by taking over as the first Black chief of a U.S. military service. Before assuming command, Brown candidly recounted in a video his experiences with discrimination during his career.
In one example, he spoke of wearing the same flight suit and wings as his peers “and then being questioned by another military member: ‘Are you a pilot?’”
“I ran into some people that only judged me by the color of my skin, and not by the quality of my work.”
One sailor stationed in Naples, Italy, took the opportunity to address racism in a town hall July 17 with Defense Secretary Esper and General Mark Milley, chairman of the Joint Chiefs of Staff.
“In my experience in the Navy, although it’s been a great one, I ran into some people that only judged me by the color of my skin, and not by the quality of my work,” said Operations Specialist First Class Heandel Pierre. Milley replied that U.S. troops were “willing to die” for core American principles like equality.
U.S. military leaders appear to be listening, taking stands that clashed with Trump after he defended people flying the Confederate flag and threatened to militarize the U.S. response to protests of the May 25 death of George Floyd in Minneapolis.
Esper opposed using active duty troops to quell protests. He also has issued a de facto ban on the flag of the Confederacy, the breakaway Southern states that waged war on the United States to preserve slavery. General Milley, Trump’s top military adviser, has called for a hard look at U.S. military facilities named after Confederate generals.
Milley recalled in July how a Black Army staff sergeant once told him at North Carolina’s Fort Bragg that they “went to work everyday on a base that represented a guy who enslaved his grandparents.” Fort Bragg, one America’s largest military bases, was named after Confederate general Braxton Bragg.
Lieutenant Commander Kimberly Young-McLear said she contemplated suicide in the weeks after announcing her intention to file a formal EO complaint at the Coast Guard Academy in 2016, where she was a professor, alleging workplace bullying tied to her race, gender and sexual orientation.
Young-McLear said she was subjected to degrading comments, her work was undermined and her reputation damaged. As she pressed her accusations, Young-McLear said she was retaliated against with a lower performance evaluation – an allegation confirmed by an inspector general’s investigation.
Even after being vindicated, she worries that little has changed. “Either people are too afraid to report because they don’t trust the system because of retaliation, or if it is reported, it gets immediately swept under the rug,” she said.
A June report by the Department of Homeland Security’s Inspector General found repeated failures in the Coast Guard Academy’s response to discrimination complaints. Many cadets surveyed said they understood how to report harassment, “but may not do so out of fear of negative consequences,” the report said.
The Coast Guard told Reuters it was working on improvements and that it recognized “there are members that still experience discrimination, bullying and harassment.”
Many service members conclude they’d gain little by filing formal complaints. “If you want to progress, you don’t make a whole lot of waves, do you? There’s no great incentive to come forward,” said Vincent Stewart, a retired Marine three star general.
Lessons from sexual assault
The full extent of discrimination in the military is unclear. The latest publicly available Pentagon data dates to a 2013 survey, which said some 16% of minorities in the active duty force experienced harassment, discrimination or both because of their race or ethnicity.
A higher percentage, 39%, of minorities reported potentially discriminatory behavior prohibited by Pentagon policy, anything from racist jokes to offensive remarks about their accents or language skills. Thirty percent said they considered leaving the military. Still, the vast majority didn’t report the issues to anyone.
Advocates say the military’s handling of sexual assaults provides additional clues that the problem is greater than the number of EO complaints would indicate.
In the latest Defense Department survey, in 2018, nearly one out of every four female service members indicated experiencing behavior consistent with sexual harassment. That would suggest over 50,000 women. But the actual number of formal harassment complaints was 1,021 last year. Advocates see a parallel with racial bias concerns.
Maryland Rep. Anthony Brown, a retired Army Reserve colonel and the only member of the Congressional Black Caucus on the House Armed Services Committee, secured House passage of an amendment that would require more regular surveys on racism and white supremacy. The aim is to create a consistent set of data on racism that’s closer to what is available on sexual assault and harassment.
Disciplinary data and reports by government agencies and nonprofit advocates reveal racial disparities in the military’s rate of investigations and punishments.
A 2019 report by the congressional watchdog U.S. Government Accountability Office said Black service members were more than twice as likely as whites to face judicial investigations in the Coast Guard, Army, Navy and Marine Corps from 2013-2017.
Blacks were also about twice as likely to be tried in courts-martial in the Army, Navy and Marines, the GAO found. In the Air Force, Blacks were about 1.5 times more likely to face a court martial.
Supreme Court challenge
In the regimented world of the U.S military, service members accept that they cannot exercise all the liberties enjoyed by civilians. They do not have the same freedoms of speech, are not free to leave their jobs whenever they choose and can be court martialed if they attempt to do so. Given the risk of death or injury in war, under longstanding legal precedent they cannot sue if killed in combat, by accident, or even from medical malpractice.
One former service member is trying to get the U.S. Supreme Court to weigh in on troops’ inability to sue over racial discrimination.
Gary Jackson, who was discharged from the Marine Corps nearly three decades ago, is trying to sue the Navy, alleging discrimination that ultimately cut short his career. He said a supervisor transferred him at a Marine base in Arlington, Virginia, and then said, “That’s one less Black Staff Sergeant,” according to a written statement by a witness submitted in the case.
If Jackson prevailed, troops could seek legal recourse under Civil Rights Act protections against workplace discrimination. But legal experts are unsure whether the Supreme Court will agree later this year to take up the issue, seeing the case as a longshot after lower courts ruled against him.
In an amicus brief in support of Jackson’s motion, Protect Our Defenders and another advocacy group, the Black Veterans Project, called the EO process a “woefully inadequate system for addressing racial bias or discrimination.”
Sherk, the airman shown the noose, said his final months in uniform left their mark. Before leaving the service in 2019, he was accused of dereliction of duty involving an unattended aircraft. Sherk fought the charge, saying the incident at the Louisiana military base was not his fault, and in a court martial hearing was found not guilty. The Air Force declined comment on his case.
Asked about Sherk’s reports about the noose and other allegations, the Air Force said several service members faced administrative action, which can include a censure, but did not elaborate.
Reuters saw a single letter of reprimand given to an airman over the noose incident, which Sherk obtained through a Freedom of Information Act request. In the letter, the Air Force wrote, “a noose represents lynching; a historic act used to traumatize African Americans into obedience and segregation.”
These days, Sherk said he is piecing his life back together after the loss of his military career, selling used cars in Detroit.
“I feel cheated,” Sherk said. “This is not what I imagined myself doing.”