Posts Tagged With: Carl Levin

Military Commanders Wake Up To Broad Reach Of Proposed Changes By Civilians To Military Justice Code

Posted on June 10, 2013 by Judge London Steverson

English: General Martin E. Dempsey, USA, 18thChairman of the Joint Chiefs of Staff. (Photo credit: Wikipedia)

English: Kirsten Gillibrand, New York’s junior United States Senator (Photo credit: Wikipedia)

WASHINGTON (AP) — The Uniform Code Of Military Justice (UCMJ) gives American military commanders substantial power to discipline the troops they lead. However an epidemic of sexual assaults in the armed forces has Congress considering changes to that well established authority.

The big question is by how far and how wide?

Army Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, and the four-star officers atop each service are scheduled to testify June 4th at a Senate hearing on congressional proposals to modify theUCMJ with the aim of staunching the escalating number of sexual assaults that have outraged the military and the public.

Dempsey and other military leaders say they are open to legislative solutions to the problem. But, they are deeply concerned that too drastic an overhaul by Congress will lead to unintended and alarming consequences.

Curbing too sharply a commander’s ability to decide how and when to punish or pardon service members will send a message there is lack of faith in the officer corps, and that in turn will undermine the efficiency and effectiveness of the military in peacetime and war, Dempsey warned in a recent letter to Sen. Carl Levin, D-Mich., chairman of the Senate Armed Services Committee.

Paradoxically, the Defense Department’s failure so far to change the military’s male-dominated culture is driving a vocal group of mainly female lawmakers led by Sen. Kirsten Gillibrand, D-N.Y., to advocate aggressive reforms.

Tinkering at the edges, they argue, won’t produce the seismic shift needed to send the message that sexist attitudes and behaviors will no longer be tolerated. Victims need to be confident that if they report a crime their allegations won’t be discounted and they won’t face retaliation.

The latest in a string of allegations came May 31, 2013.

The Pentagon said the U.S. Naval Academy is investigating allegations that three football team members sexually assaulted a female midshipman at an off-campus house more than a year ago, and a lawyer for the woman says she was “ostracized” on campus after she reported it.

The Naval Academy investigation follows several recent arrests: A soldier at the U.S. Military Academy at West Point was charged with secretly photographing women, including in a bathroom. The Air Force officer who led the service’s Sexual Assault Prevention and Response unit was arrested on charges of groping a woman. And the manager of the Army’s sexual assault response program at Fort Campbell, Ky., was relieved of his post after his arrest in a domestic dispute with his ex-wife.

The Pentagon estimated in a report last month that up to 26,000 military members may have been sexually assaulted last year, up from an estimated 19,000 assaults in 2012, based on an anonymous survey of military personnel. While the number of sexual assaults members of the military actually reported rose 6 percent to 3,374 in 2012, thousands of victims are still unwilling to come forward despite new oversight and assistance programs aimed at curbing the crimes, the report said.

Those numbers and outrage over two recent decisions by Air Force generals overturning juries’ guilty verdicts in sexual assault cases are generating support for Gillibrand’s proposal to largely strip commanding officers of the power to toss out a verdict, a change initially recommended in April by Defense Secretary Chuck Hagel and backed by Dempsey, the service chiefs and many members of Congress.

But Gillibrand’s bill goes much farther — too far, according to Dempsey. It would remove commanders from the process of deciding whether serious crimes, including sexual misconduct cases, go to trial. That judgment would rest with seasoned trial counsels who have prosecutorial experience and hold the rank of colonel or above.

Her legislation, which has 18 cosponsors that include four Republicans, also would take away a commander’s authority to convene a court-martial. That responsibility would be given to new and separate offices outside the victim’s chain of command.

“The current system allowing commanders to have sole discretion in the disposition of legal matters is clearly broken and has a chilling effect on reporting,” said Gillibrand, who chairs the Armed Services Committee’s personnel subcommittee. “We must … increase accountability within the system by removing the influence of the chain of command in the prosecution of intolerable crimes.”

In a May 20 letter to Levin, Dempsey said taking away a commander’s ability to convene a court-martial would “radically” alter a principal tenet of military law dating back two centuries and merged more than 60 years ago into a single Uniform Code of Military Justice.

“While Congress has modified the UCMJ from time to time, it has never removed commanders from the military justice system,” Dempsey wrote. “The consequences of such a decision would be far-reaching and extraordinarily damaging to the nation’s security.”

Whether all or parts of Gillibrand’s Military Justice Improvement Act are added to the defense policy bill for the 2014 fiscal year remains to be seen.

But changes are coming. The GOP-led House Armed Services military personnel subcommittee used Hagel’s April recommendation as a starting point and then went further in a bill it approved two weeks ago.

In addition to taking away the authority to reverse courts-martial rulings, the subcommittee voted to establish dismissal or dishonorable discharge as the mandatory minimum sentence under military law for service members found guilty of rape, sexual assault, forcible sodomy or an attempt to commit those offenses. Commanders also would be barred from reducing or commuting the minimum sentence except in situations where the accused substantially aided the government in the investigation or prosecution of another assailant.

The House bill, however, stops short of taking those cases outside the chain of command, as Gillibrand’s bill proposes. Rep. Michael Turner, R-Ohio, who co-chairs the House Military Sexual Assault Prevention Caucus, said the focus should be on preventing sexual assaults, not scrapping central elements of the current military justice system.

The hearing June 4 may indicate how far the Senate Armed Services Committee is willing to go. A final plan will eventually be produced after any differences between the House and Senate are resolved.

Levin has not publicly stated his position on Gillibrand’s proposal but has made clear he is dissatisfied with the Pentagon’s efforts to eradicate what he has described as the “plague of sexual assaults in the military.”

And Sen. Claire McCaskill, D-Mo., an Armed Services Committee member and critic of the Pentagon’s handling of sexual assault cases, isn’t co-sponsoring Gillibrand’s bill, backing instead many of the changes the House panel approved.

McCaskill told reporters last month that she’s not opposed to Gillibrand’s legislation but wants to be sure Congress doesn’t squander a chance to pass a bill because of partisan differences over its scope. “I am tired of trying to legislate around the gridlock in Congress,” she said.

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Categories: Military Justice | Tags: Carl Levin, Chuck Hagel, Kirsten Gillibrand, Martin Dempsey, Uniform Code of Military Justice, United States Military Academy, United States Naval Academy, United States Senate Committee on Armed Services | Leave a comment

Social Security Program Abuses Cited In Senate Committee Report

Posted on September 15, 2012 by Judge London Steverson

Social Security Disability Program Abuses Cited In Senate Committee Report

Senator Tom Coburn, (R-Okla.)

A subcommittee headed by ranking minority member Sen. Tom Coburn, R-Okla., reported findings today on improving benefit award decisions for Social Securitydisability programs.Decisions by ALJs in Social Security disability appeals are riddled with errors and signs of sloppy judgment, according to the report from the Senate Homeland Security and Government Affairs subcommittee on investigations.

More than a quarter of the decisions reviewed by the committee were based on insufficient and often contradictory evidence, according to the report, a finding that is consistent with the Social Security Administration‘s own internal reviews.

“In May 2007, Commissioner Michael Astrue told Congress he would end the growing wait time for an ALJ hearing,” Coburn said. “To reduce this wait time the agency encouraged judges, where appropriate, to consider skipping hearings and write decisions ‘on the record.’

“I think you could flip a coin for anybody who came before the Social Security commission for disability and get it right just as often as the ALJs (administrative law judges) do,” Coburn said.

Coburn said he personally reviewed about 100 of the cases, drawn randomly from counties in Virginia, Alabama and Oklahoma. About 75 percent should not have been approved for benefits, Coburn said. The Oklahoma Republican is a practicing physician.

“One judge we encountered in our investigation played a big role in this effort,” Coburn said. “Between 2007 and 2009, ALJ Howard O’Bryan, from the Oklahoma City office, single-handedly decided 5,401 cases — almost all of them on the record and without a hearing. His decision rate was nearly four times faster than the average judge’s. In terms of cost, Judge Howard O’Bryan alone awarded an estimated $1.62 billion in lifetime benefits to claimants in just three years.

“I was at first astounded that one person could decide 1,800 cases per year – especially since each case is

nearly 500 pages long. On average, he decided five cases per day, 365 days per year. I soon learned, though, that he could move through them so quickly because the quality of his work left so much to be desired.”

Coburn said the Oklahoma judge cut and pasted electronic images of medical evidence into his findings. There were contradictory opinions and findings in the cases, so much so that the agency asked Judge O’Bryan to improve his decision writing.

“But, instead of reducing his caseload to a manageable level, the agency began shipping him cases from around the nation,” Coburn said. “He told us that at one point he was asked to do 500 cases just from Little Rock, Arkansas — an average judge’s caseload for the an entire year. When he finished those, he was sent cases from Atlanta, Houston, Greenville, Des Moines and Yakima, Washington.

One 87-year-old judge in Oklahoma City, who averaged about 1,800 disability cases per year between 2007 and 2009, approved between 90 and 100 percent of them annually.

Another judge awarded disability benefits after a hearing that lasted only three minutes.

Among the recommendations in the report is that the Social Security Administration have a representative at appeals hearings to ensure evidence indicating a claimant is not disabled is presented.

The subcommittee questioned top ALJs from the Social Security Administration’s disability office during a hearing on 13 September 2012.

(Read the full story in http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757)

The report was prepared by Republicans on the subcommittee. However, its factual findings are supported by subcommittee chairman Sen. Carl Levin, D-Mich., who did not sign on because of concerns about some of the recommendations, according to a Levin aide.

FINDINGS OF FACT:

A subcommittee headed by ranking minority member Sen. Tom Coburn, R-Okla., reported findings today on improving benefit award decisions for Social Security disability programs.

Based upon its review of the 300 disability case files, the report finds:

•Low Quality Decisions. The investigation’s review of 300 disability case files found more than a quarter of agency decisions failed to properly address insufficient, contradictory, or incomplete evidence. This corroborates a 2011 internal review.

• Insufficient and Contradictory Medical Evidence. In many cases, at the initial and appellate levels of review, the state-based Disability Determination Services examiners and SSA Administrative Law Judges issued decisions approving disability benefits without citing adequate, objective medical evidence to support the finding or at times without explaining contradictory evidence.

• Poor Hearing Practices. There were perfunctory hearings lasting less than 10 minutes, misused testimony provided by vocational or medical experts, and a failure to elicit testimony to resolve conflicting information.

• Late Evidence. Some case files showed disability applicants submitted medical evidence immediately before or on the day of a hearing or after the hearing’s conclusion.

• Inconsistent Use of Consultative Examinations. In many cases, consultative examinations submitted on behalf of either SSA or a claimant were either summarily dismissed or heavily relied upon, with little to no explanation.

• Misuse of Medical Listings. In many case files, opinions failed to demonstrate how a claimant met each of the required criteria in the SSA’s Medical Listing of Impairments to qualify under “Step Three” in the application process. Awards at Step Three are determined to be severe enough to qualify an applicant for benefits.

• Reliance on Medical-Vocational Guidelines. The majority of disability awards reviewed by the Subcommittee utilized SSA medical-vocational grid rules. A recent SSA analysis found that benefit awards were made under these grid rules at a rate of 4 to 1, compared to awards made due to a claimant’s meeting a medical listing. At times, decisions resulted from a claimant’s representative and the Administrative Law Judge negotiating an award of benefits by changing the disability onset date to the claimant’s 50th or 55th birthday.

• Outdated Job List. Some case files showed examiners and ALJs relied on the Department of Labor’s outdated Dictionary of Occupational Titles, to identify jobs open to claimants with limited disabilities. The last major revision to the DOT occurred in 1977.

RECOMMENDATIONS:

The report makes the following recommendations:

• Require Government Representative at Administrative Law Judge Hearings. Including a government representative at the ALJ Level is a recommendation of the Association of Administrative Law Judges and the Social Security Advisory Board. Congress should designate funds for such a program.

• Strengthen Quality Review Process. The review process initiated by the Quality Division of the Office of Appellate Operations should be expanded and strengthened by conducting more reviews and developing metrics to measure the quality of disability decisions, and the information made available to Congress.

• Close the Evidentiary Record. To eliminate confusion, inefficiencies, and abuses, the evidentiary record should close one week prior to a hearing, with exceptions allowed only for significant new evidence.

• Strengthen Use of Medical Listings. Provide additional training to ALJs on the use of SSA Medical Listings, and direct ALJ decisions to identify how a claimant meets each required element of a listing, citing objective medical evidence.

• Expedite Updated Job List. Move more quickly to ensure the Occupational Information System can serve as a usable replacement for the Dictionary of Occupational Titles to identify jobs that claimants with limited disabilities can perform in the national economy.

• Focused Training for ALJs. The Office of Appellate Operations, Quality Division, should provide training to all ALJs regarding adequate articulation in opinions of determinations that involve obesity and drug and alcohol abuse.

• Strengthen Consultative Examinations. Because many disability claimants do not have sufficient funds to obtain detailed medical evidence of their conditions, SSA should determine how to improve the usefulness of agency-funded Consultative Examinations, including requiring an explanation of any significant disparity.

• Reform the Medical-Vocational Guidelines. The medical-vocational guidelines should be reviewed to determine if reforms are needed.

Categories: Social Security Judges | Tags: Administrative law judge, Carl Levin, Coburn, Commissioner Mike Astrue, Oklahoma, Republicans, Social Security, Social Security Administration, socialNsecurity, Tom Coburn | 3 Comments

Social Security Judges Are “Paying-Down” The Back Log.

Posted on September 14, 2012 by Judge London Steverson

Seal of the United States Social Security Administration. It appears on Social Security cards. (Photo credit: Wikipedia)

The below Atlanta Journal-Constitution article of 13 Sept 2012 reminds one of the police chief’s statement in the movie ‘Casablanca’. “Frankly, Rick, I am surprised to find there is gambling in this club. Are those my winnings?”

Report: Social Security lax on disability claims

WASHINGTON —Social Security is so overwhelmed by disability claims that some officials are awarding benefits without adequately reviewing applications, potentially adding to the program’s financial problems as it edges closer to the brink of insolvency, congressional investigators say in a new report.

In more than a quarter of the 300 cases reviewed by congressional staff, decisions to award benefits “failed to properly address insufficient, contradictory or incomplete evidence.” In many cases, officials approved disability benefits without citing adequate medical evidence or without explaining the medical basis for the decision, according to the report by the Republican staff of the Senate Permanent Subcommittee on Investigations.

In some cases, it appeared that administrative law judges (ALJ) struggling to reduce backlogs didn’t take the time to review all the evidence, the report said. The judges are expected to rule on at least 500 cases a year, with one judge deciding an average of 1,800 cases a year for three straight years, the report said.

“The administrative law judges are not looking at the cases because the pressure from Social Security is to get the cases out,” said Sen. Tom Coburn of Oklahoma, the top Republican on the subcommittee. “I think you could flip a coin for anybody that came before the Social Security commission for disability and get it right just as often as the (judges) do.”

Social Security has been working for years to reduce a huge backlog of disability claims.

“We share the subcommittee’s concern that a small number of judges have failed our expectations with regard to a balanced application of the law, proper documentation, proper hearings and proper judicial conduct,” said Social Security spokesman Mark Hinkle. “We have undertaken a vigorous set of quality initiatives since the time most of these cases were filed about five years ago and data indicates that we have made substantial progress.”

Hinkle added, “We recognize the need for further improvement and are working hard toward that goal.”

At a subcommittee hearing Thursday, Chief Administrative Law Judge Debra Bice said the Social Security Administration has raised hiring standards for judges in the past several years. She said the agency doesn’t hesitate to hold judges accountable, where the law permits. But, Bice said, the law limits the agency’s authority over judges to ensure that they are impartial in deciding cases.

Disability claims typically increase in a bad economy because many people who worked despite their disabilities get laid off and apply for benefits. The recent recession was no exception, with a flood of applications straining the disability program’s already troubled finances.

Without congressional action, Social Security’s disability trust fund will run out of money in 2016, leaving the program unable to pay full benefits, according to the trustees who oversee the program. The trustees have urged Congress to shore up the disability system by reallocating money from the retirement program, just as lawmakers did in 1994. That fix, however, would further weaken the retirement system, which has its own long-term financial problems.

About 11 million people receive disability benefits from Social Security, an increase of more than 23 percent over the past five years. Benefits average a little less than $1,000 a month.

About 8.2 million people receive Supplemental Security Income, a disability program for poor people who don’t have substantial work histories. SSI benefits average a little more than $500 a month.

Coburn said he called for the investigation after he learned that a man he had hired to cut down trees in the yard of his home was also collecting Social Security disability. Coburn said he wanted to learn how widespread cheating was in the system, though the report doesn’t determine whether undeserving people are getting benefits. Instead, the report is limited to whether officials followed proper procedures.

The subcommittee’s staff asked the Social Security Administration to randomly select 100 cases apiece from counties in three states — Virginia, Alabama and Oklahoma. The cases were limited to those in which benefits were awarded.

The investigation was done by both Republican and Democratic staff members. However, subcommittee Chairman Sen. Carl Levin, D-Mich., did not sign off on the final report because he disagreed with some of its recommendations.

The report acknowledged that the findings may not be representative of the entire country. However, it said, “The same types of issues affected decisions across all three counties, suggesting they may be a factor elsewhere in the nation.”

(By STEPHEN OHLEMACHER, AP)

Categories: Social Security Judges | Tags: Administrative law judge, Carl Levin, Disability, Mark Hinkle, Social Security, Social Security Administration, socialNsecurity, Supplemental Security Income, Tom Coburn | Leave a comment