Conduct unbecoming an officer of the U.S. military was criminalized when Article 133, and the rest of the Uniform Code of Military Justice (UCMJ) was signed into law by President Harry Truman in1950. Up until then, things muddled along, apparently, with a series of attempts beginning with the Second Continental Congress in 1775. But along with the other criminal and punitive portions of the UCMJ was an interesting section that was intended to protect soldiers and officers from prosecution based either on political pressure or ignorance of real life on the battlefield. That is Article 60 (c), which gives a commanding officer authority to modify or set aside the findings and sentence of a court martial.
This piece of military law pops up to my attention because Boston Globe columnist Juliette Kayem wrote an opinion piece about Air Force Lieutenant Colonel James Wilkerson's case. He was court martialled for sexual assault against a female physician assistant last March, 2012. Wilkerson's commanding officer, Lieutenant General Craig Franklin set aside the conviction, against advice of his lawyer, under the authority of UCMJ Article 60. According to Kayem's essay, Franklin did not speak with the victim before his decision. The case is simply the most egregious, most recent and most loudly protested of many sexual assault cases in the military, which has a major problem both with the crime and with addressing the crime.
Newly confirmed Secretary of Defense Chuck Hagel has promised to investigate the issue. The Senate is convening hearings on the issue of sexual assaults in the military, the first in nearly 10 years.
Of the 2,439 formal reports submitted in 2011, only 240 proceeded to trial. Anonymous surveys of military personnel for the same year showed that 19,000 instances of sexual harassment or assault went unreported in 2011.(from the LA Times article on the Senate hearings) Both rape survivors at the Senate hearing and Globe columnist Kayem urge that, while Article 60 provides important protections from political pressure and ignorant interference with battlefield morale, it also has allowed the growth of an "old boys' culture" that allows and even encourages commanding officers to dismiss and ignore reports of sexual assault and sexual harassment. This means that victims have no recourse, and the problem with the culture in the military that allows such hostile behavior will never be addressed.