Military Trials: Demanding Institutional Change to Unchecked Hazing of Minorities

Private Danny Chen was only 19 when he committed suicide nine months after joining the Army.[1] From the beginning of his training, Chen experienced hazing as the only Chinese-American in his unit. He was forced to do excessive physical punishment, called “chink,” “dragon lady,” and other racial slurs, physically abused, and ordered to shout commands in Chinese.[2] Days before his death, Sergeant Adam Holcomb dragged Chen out of bed and across the outpost, an instance of maltreatment that left Chen contemplating suicide.[3] Only hours before his death, Chen was forced to crawl across a rugged terrain while other soldiers threw stones at him.[4] On October 3rd , 2011, Danny Chen was on duty in the guard tower when he took his own life.[5]

The following December, the American military charged Holcomb and seven other white soldiers for crimes related to Chen’s death.[6] Among the charges were negligent homicide, involuntary manslaughter, and assault consummated by battery.[7] Yet all of the serious charges were dropped, and of the eight soldiers, only three served prison time–the longest of which was six months.[8] One soldier took a plea deal and resigned from the Army in order to avoid military court.[9] The military juries that heard the trials of the others consisted of 10 officers, both enlisted and cadet Army officers,[10] and convicted them only of minor charges, with only one charge of dereliction of duty.[11]

Elizabeth OuYang, a professor at Columbia and New York University, was the president of OCA-NY during the Danny Chen case and worked directly with his family and the press to fight for his justice. Present at the military trials, OuYang stated how they differed from civilian trials:

First and foremost the victim, in this case Danny, wasn’t tried by a jury of his peers. They were all officers, whether enlisted officers or academy officers, who served on the jury, or what’s called a ‘military panel.’ There weren’t any privates on that military panel, they were all superiors. And in this case, it was eight superiors who were charged with crimes in connection with Danny’s death.

OuYang also detailed and criticized the use of the good soldier defense, which allows military juries and judges to consider a soldier’s good deeds on the field when analyzing one’s criminality in the court. As OuYang clarified, “In other words, a more ‘decorated’ soldier had more leeway to engage in hazing and maltreatment.” These skewed military trials resulted in “slap-on-the-wrist punishments” for each of the defendants, which “sent another signal that these [hazing] incidents are not taken seriously.” OuYang also criticized how these light punishments forced young soldiers to question why they would even testify if their testimonies had little to no impact on the charged superiors. Overall, the military tribunals illustrated that the Army ultimately valued “service on the battlefield” over rightful “treat[ment] of their own soldiers.”

Chen’s case was not an isolated incident; just months before Chen, Corporal Harry Lew, another Chinese-American, and Private Hamson McPherson, an African-American, both experienced hazing in the Marines and also committed suicide.[12] This reflects a larger pattern of unjust and unchecked hazing of minorities in the military, which have unfortunately resulted in mental health concerns and even death, due to the lack of a “military law that addresses hazing.” During Chen’s case, hazing fell under Army Regulation 600-20, paragraph 4-20, of the Army Command Policy as a “violation of a lawful general regulation.” And while the Army Command Policy had its own definition of hazing in 2012, [13] prior to Chen’s case, “hazing” was not yet defined by the U.S. Uniform Code of Military Justice, nor did systems of anonymously reporting, tracking, and addressing hazing incidents even exist.[14]

Furthermore, OuYang emphasized how outside of the Army Command Policy, there is “no separate hazing statute.” OuYang argued how the lack of legal protections in addition to the culture of “turning a blind eye” to hazing in the Army and “encouraging other recruits not to get involved,” allowed Chen’s case, and other similar cases, to unfold. Hazing is especially prevalent among Asian-Americans and other marginalized groups in the army, for as OuYang notes: “It’s a vicious circle… if you’re fewer in number, you get picked on.”

In response to Chen’s case, Congresswoman Nydia Velázquez drafted an anti-hazing bill that required the Armed Forces to annually report to Congress the measures they have taken to address hazing and included key provisions for immediate transfers for victims of hazing.[15] However, only the “soft” parts of the bill passed as an amendment to the National Defense Authorization Act in May 2012, and President Obama signed the Act into law in January 2013.[16] The Act included anti-hazing measurements such as a data-collection base for hazing reports, including anonymous reports, and improved training for military department Secretaries on how to “recognize, prevent, and respond” to hazing, in addition to the annual reports.[17] However, OuYang argued that these measures were not sufficient to protect minorities against hazing.

While the Obama Administration began touching the surface of the military’s hazing issue, OuYang criticized that there are still more measures needed to fix the injustice, such as “immediate transfers of [soldiers upon] hazings occuring” and the “elimination of the good soldier defense in hazing incidents,” as well as changes to the system to address the “lack of discipline, oversight, and provisions.” As a result, the hazing culture of the military and army has not changed, with the suicide of Raheel Siddiqui, a Muslim recruit hazed in the Marines, in March 2016.[18] Two months later, Congress passed the Harry Lew Military Hazing Accountability and Prevention Act, introduced by Lew’s aunt Congressman Judy Chu, which requires annual reporting on hazing from every military department, not just the Army.[19]

Today, beyond its implications on military hazing, OuYang hopes for Asian-Americans to understand why Chen’s case was so significant. “We’re always plagued with the stereotype of being the ‘foreigner,’ the ‘yellow peril,’ and now even ‘terrorist,’” OuYang said, yet “the ultimate sacrifice anyone can give for their country is to serve in the military, and here was an American-born Asian soldier serving the United States, protecting the United States, and this was the way he was treated.” It’s important for Asian-Americans, and all minorities to realize that “if someone who is serving their country can be treated this way, what could happen to those civilians who are not risking our lives? How much more vulnerable are we?” OuYang concludes that Danny Chen’s case is “a wake up call to our community to become politically active and civically engaged… We can’t just passively let these things happen… we have to demand institutional change.”

[1] Gonnerman, Jennifer. "Pvt. Danny Chen, 1992–-2011," New York Magazine, January 6, 2012. Accessed April 11, 2018. http://nymag.com/news/features/danny-chen-2012-1/.

[2] to id 1.

[3] Semple, Kirk. "Sergeant Acquitted of Driving a Suicide," New York Times, July 30, 2012. Accessed April 11, 2018. https://www.nytimes.com/2012/07/31/nyregion/army-jury-acquits-sergeant-of-driving-pvt-

Danny-chen-to-suicide-in-afghanistan.html.

[4] Zucchino, David. "Witness: Danny Chen Was Forced to Crawl on Day He Shot Himself." Los Angeles Times, July 27, 2012. Accessed April 11, 2018. http://articles.latimes.com/2012/jul/27/nation/la-na-nn-danny-chen-suicide-testimony-20120727.

[5] to id 4.

[6] Semple, Kirk. "Army Charges 8 in Wake of Death of a Fellow G.I." The New York Times. December 21, 2011. Accessed April 11, 2018. https://www.nytimes.com/2011/12/22/us/8-

charged-in-death-of-fellow-soldier-us-army-says.html.

[7] to id 6.

[8] OuYang, Elizabeth. "Can Military Courts Deliver Justice to a Subordinate Hazed by Superiors." Asian American Policy Review, 2012-2013, XXIII:81-85.

[9] to id 10.

[10] to id 6.

[11] to id 10.

[12] to id 10.

[13] Headquarters Department of the Army. "Army Regulation 600–20 Army Command Policy." March 18, 2008. Accessed April 17, 2018. https://www.nrc.gov/docs/ML1411/ML14113A075.pdf.

[14] to id 10.

[15] to id 10.

[16] to id 10.

[17] National Defense Authorization Act for Fiscal Year 2017, 114th Congress. https://www.congress.gov/114/plaws/publ328/PLAW-114publ328.pdf.

[18] Reitman, Janet. "How the Death of a Muslim Recruit Revealed a Culture of Brutality in the Marines." The New York Times Magazine. July 6, 2017. Accessed April 11, 2018. https://www.

nytimes.com/2017/07/06/magazine/how-the-death-of-a-muslim-recruit-revealed-a-culture-of-brutality-in-the-marines.html.

[19] H.R. 5060, 114th Cong. (2016) (enacted).