Third Air Force commander Lt. Gen. Craig Franklin, whose controversial decision earlier this year to dismiss a sexual assault conviction sparked changes to the military justice system, decided against pursuing a court-martial in another case recently, prompting Air Force officials to give the case to another commander for a do-over.
Franklin in August declined to court-martial an Aviano airman after an Article 32 probable-cause hearing.
The case involves an Air Force staff sergeant who reported that a subordinate raped her after an evening spent drinking and dancing at a club. The accused airman claimed the sergeant consented.
The case hearing officer recommended against proceeding to court-martial in the case, and Franklin's legal adviser also agreed with Franklin's decision. In most circumstances, that would have been the end of the matter.
Instead, top Air Force officials decided that the case should be re-investigated. In essence, said an official familiar with the case, "Franklin's decision has been second-guessed by the Air Force."
Franklin's spokesman, Lt. Col. Paul Baldwin, said it would be "inappropriate" for Franklin to comment.
In February, Franklin's dismissal of the guilty verdict and sentence in the sexual assault case of Aviano fighter pilot Lt. Col. James Wilkerson brought the Air Force prolonged, unwelcome attention and led members of Congress to demand changes to the military justice system.
Exactly why Air Force Chief of Staff Mark Welsh and then-Acting Secretary of the Air Force Eric Fanning removed the most recent case from Franklin and reassigned it for a second look — a most unusual event — is unclear.
There were irregularities in the new case, according to the official, who was not authorized to discuss the matter and declined to be identified.
Franklin did not consult with the accuser before deciding to drop criminal charges, despite a written request from her to be consulted. Such consultations are encouraged, and some people say that the regulations call for it. Franklin also had been criticized for not informing the victim of his decision to overturn Wilkerson's conviction in February.
The accuser also sent a memo regarding what she said was bias against her in the Aviano hearing by the investigating officer, according to the official.
In the ensuing ruckus over the Wilkerson case and amid high military sexual assault rates, Congress stripped commanders of the authority to overturn jury verdicts along with other measures intended to strengthen victim protections.
Welsh called Franklin to discuss concerns that the new case disposition could cast once more an unflattering light on Franklin and the service, the official said, and talked about how to proceed.
The idea of having Franklin redo the case with a new Article 32 was discarded, the official said, in part because that would seem to constitute unlawful command influence by his superiors. It was decided instead to involve a different convening authority.
The Air Force District of Washington commander, Maj. Gen. Sharon K.G. Dunbar, reviewed the case and preferred charges against the airman. The new Article 32 hearing is to be held late next month at Joint Base Andrews, Md.
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