The National Association of Black Military Women and left-leaning legal organizations have weighed in on the lawsuits against the U.S. Military Academy and the Naval Academy, filing briefs in defense of the academies’ use of race as a factor in admissions decisions, often known as affirmative action.

In June, the Supreme Court decided 6-3 that affirmative action in higher education violated the clause of the Constitution guaranteeing equal protection under the law. But Chief Justice John Roberts wrote in a footnote that the decision didn’t apply to the military’s service academies, which presented “potentially distinct interests.”

The footnote left the door open for litigation seeking to ban affirmative action in those military institutions.

A group opposed to affirmative action has walked through that door, suing two service academies for considering race as an admissions factor, arguing the policy is unfair and illegal. The National Association of Black Military Women’s recent briefs defend the policy, making the case that racism still exists in the military and racially diverse leaders can ameliorate it.

“For people to think that there is no racism in the military, that’s a false narrative,” retired Army Col. Irma Cooper, the association’s vice president for operations, said on Friday.

In the fall, Students for Fair Admissions, the same anti-affirmative-action advocacy group that successfully challenged affirmative action in civilian universities, turned its attention to the service academies. It filed lawsuits against the Army’s U.S. Military Academy in West Point, New York, and the Naval Academy in Annapolis, Maryland, for what it characterized as unlawful racial discrimination.

The National Association of Black Military Women, the American Civil Liberties Union, the New York Civil Liberties Union and the NAACP Legal Defense Fund argued in a friend-of-the court brief filed Nov. 29 that affirmative action at the U.S. Military Academy, which educates future Army officers, was “critical to the success of Black women in the military and to the military’s success.”

Friend-of-the-court briefs, also known as amicus briefs, are filed by entities that aren’t directly involved in a case but share their insight or expertise.

Nearly the same set of groups, with the difference being the addition of the ACLU Foundation of Maryland and the subtraction of the New York Civil Liberties Union, on Dec. 6 filed a similar brief in the case against the Naval Academy. That academy educates future officers for the Navy and Marine Corps.

The use of race in admissions

In arguing that affirmative action is necessary, the amicus briefs point to the low number of Black and Hispanic officers relative to Black and Hispanic enlisted troops.

Black troops made up 19% of enlisted active-duty service members in 2022 but only 9% of officers, according to data from the Pentagon.

The briefs quote service members of color recounting instances of racism they say they experienced, including offensive language and apparently disparate treatment in the military justice system.

Retired Army Col. Annette Tucker Osborne, president of the National Association of Black Military Women, says in the briefs that when her new commander on a deployment to Kuwait met her for the first time, he looked at her and back at her resume, over and over and over. In Tucker Osborne’s view, the commander was “unable to equate a Black woman with the well-polished and extremely qualified person on paper.”

“I was asked three times, ‘Did you complete Army War College?” she said in a Friday interview with Military Times. “I told you the first time. You didn’t have to ask me three times in front of the whole group of military personnel.”

On that six-month deployment, young white soldiers often wouldn’t salute Tucker Osborne, a full-bird colonel, she said.

Founded in 1976, the National Association of Black Military Women is an organization “dedicated to giving voice to Black military women across the nation.”

The association’s briefs argue racially diverse leaders can foster a better culture for more junior service members of color.

The U.S. Military Academy maintained in a court filing that affirmative action, by increasing racial diversity in the officer corps, also prevents internal racial tensions, boosts recruitment and retention, and builds the military’s legitimacy in the eyes of the nation and the globe.

Students for Fair Admissions has argued the opposite: that considering race in admissions undermines the internal and external trust in the military and amounts to racial stereotyping.

“America’s enemies do not fight differently based on the race of the commanding officer opposing them, soldiers must follow orders without regard to the skin color of those giving them, and battlefield realities apply equally to all soldiers regardless of race, ethnicity, or national origin,” the group wrote in a September filing.

And because race helps some applicants, race necessarily hurts other applicants, Students for Fair Admissions argued.

“That’s illegal,” the group wrote.

The service academies’ admissions officers insisted in court filings that race isn’t the determinative factor in deciding whether to admit or deny students.

To get accepted to the academies, applicants must not only meet the academic and physical standards but also receive official nominations, often from members of Congress.

Race can help students get letters of assurance, early conditional acceptances for “outstanding” applicants, according to the admissions officers. It could play a role in the academy’s decision to provide its handful of direct nominations, though those are typically reserved for standout athletes. And it can be a “plus factor” in final admissions decisions.

Students for Fair Admissions wrote that the academies should pursue race-neutral alternatives to affirmative action. The group described affirmative action as “racial box-checking” and “racial pseudoscience” because it relies on broad racial classifications like “Hispanic” and “Asian” that encompass a huge variety of ethnic backgrounds.

Nearly 19% of the military’s active duty officers are service academy grads, but that percentage falls to approximately 13% for Black officers, according to Pentagon data from 2019. ROTC programs at civilian universities are the leading source of officers’ commissions overall.

Next steps

Students for Fair Admissions is seeking preliminary injunctions that would order the Army’s and Navy’s service academies to cease using race as a factor in admissions immediately.

For that to happen, Judge Philip Halpern in New York and Judge Richard Bennett in Maryland would have to decide that Students for Fair Admissions’ arguments should win on the merits, and that waiting for the typical legal process to run its course would create harm that couldn’t be repaired.

Students for Fair Admissions, which is representing two anonymous white high schoolers who would like to apply to West Point, has said the judges need to act now. One of those students is applying in this admissions cycle and might miss out on a spot that he would have gotten if he weren’t white, the group argued in the complaint.

“Unless West Point is ordered to stop using race as a factor in admissions, [his] race will prevent him from competing for admission on an equal footing,” Students for Fair Admissions wrote.

Lawyers for Students for Fair Admissions didn’t respond to a Military Times request for an interview.

The U.S. Attorney’s Office for the Southern District of New York and the Justice Department’s Civil Division are representing the academies. Nicholas Biase, a spokesman for the New York office, declined to comment. The Civil Division didn’t respond by time of publication to a Military Times request for comment.

Whether or not the judges decide to end affirmative action in the academies immediately, it’s likely those decisions will get appealed, Sarah Hinger, an ACLU attorney who worked on the amicus briefs, told Military Times on Thursday.

The cases likely will one day end up before the Supreme Court, in Hinger’s view.

Although six of the nine Supreme Court justices voted in June to scrap affirmative action in civilian universities, the service academy cases would force them to balance a desire to enforce equal protection consistently with the norm of courts deferring to the military, Noah Feldman, a Harvard Law School professor, wrote in Bloomberg in September.

“It’s likely to be a close call, but consider: If there had been five firm votes on the court for striking down the military’s use of affirmative action, there would have been no need for Roberts to exclude the academies from June’s decision,” Feldman wrote.

The case in the Southern District of New York is Students for Fair Admissions v. United States Military Academy at West Point et al (7:23-cv-08262).

The case in the District of Maryland is Students for Fair Admissions v. The United States Naval Academy et al (1:23-cv-02699).

“They don’t define the military,” the retired Marine Corps four-star general said during a Nov. 3 panel discussion on the military’s role in democracy.

“It’s defined by the people … who go off and maintain their honor, actually sharpened in their appreciation of just how great this [democratic] experiment is, and what they saw their fellows do alongside them in terms of sacrifice to keep this experiment alive,” Mattis said at an annual conference hosted by the Mount Vernon Ladies’ Association.

Of the more than 1,000 people charged in connection with the Capitol attack as of this summer, about 18% have military backgrounds, according to data from the University of Maryland and the Justice Department. In comparison, about 7% of all American adults are veterans, U.S. Census Bureau data from 2018 shows.

“It’s a concern, certainly,” Mattis said.

But Mattis pointed out that, much like the U.S. military, the rioters were primarily men. Some of them had been out of the military for decades.

“When someone gets out of the military — and many get out at age 22, after a full tour and an honorable discharge — if at age 45 they were part of a group that marched on Washington, D.C., maybe a few other things happened between 22 and 45,” Mattis said.

Only a handful of those involved in the attack on the Capitol were still on active duty or reservists, Mattis noted.

“They will be dealt with,” he said. “The military knows how to address people who disappoint ’em.”

Mattis’ sharp words for those who attempted to disrupt the peaceful transition of power from President Donald Trump to President Joe Biden are yet another public signal of an icy relationship between Mattis and Trump.

Mattis served as Trump’s defense secretary but resigned in December 2018 over his disagreement with the president’s decision to pull U.S. troops out of Syria. In June 2020, he condemned his former boss, writing, “Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try. Instead he tries to divide us.”

In response, Trump called Mattis “the world’s most overrated general.”

Also on Friday’s panel were retired Marine Gens. Joseph Dunford, who served as chairman of the Joint Chiefs of Staff from 2015 to 2019, and John Kelly, who served as one of Trump’s chiefs of staff.

Dunford said back in 2019 he will never opine on Trump, a commitment he reiterated Friday. But he agreed with Mattis that the veterans who participated in the attack on the Capitol weren’t representative of veterans as a whole.

“There are thousands and thousands and thousands of veterans that are out there every day making contributions to the community and doing exactly what a good citizen ought to do,” Dunford said.

Here at the historic home of the nation’s first president, the three retired generals continually brought up the example George Washington set as a general and as a president caring for a fledgling democracy. In what was perhaps an implicit dig at Trump, Kelly said “the greatest thing” Washington did was “he went home twice,” relinquishing control of the military in 1783 and declining to seek a third presidential term in 1796.

Mattis, who reportedly owned some 7,000 books before he retired from the military, made a reference to another general who looms large in U.S. military history: then-Maj. Gen. William Tecumseh Sherman of the Union Army. The retired Marine loosely quoted Sherman’s remarks from May 1865, when he finally sent his men home: “As in war you have been good soldiers, so in peace you will be good citizens.”

“Now, that’s not always the case,” Mattis said. “There’s always someone that disappoints you. I’m reminded that Jesus of Nazareth had one out of 12 disappoint him.”

At around noon on Sept. 23, the pilot of a Cessna Citation business jet at Austin-Bergstrom International Airport received an “onboard alert” that the single-seat F/A-18C Hornet fighter jet was close by, the FAA said in a Thursday emailed statement to Marine Corps Times. It’s unclear exactly what the pilot of the private jet did in response to that alert.

That same day, the F/A-18 also flew close to a different civilian aircraft that was preparing for takeoff, according to the FAA.

Archived radio traffic indicates an air traffic controller in Austin was not clear about what the military jet’s pilot intended to do.

The Cessna private jet had been cleared to land as the F/A-18 approached the airport, according to The Washington Post, which broke the news of the close call. The fighter jet received permission from air traffic control to execute a break, which involves turning sharply to slow down before landing, the Post reported.

In a recording of the air traffic control radio obtained by the local ABC affiliate KVUE, an air traffic controller at the Texas airport can be heard expressing surprise at the Marine pilot’s descent, after another voice says, “That’d have been nice to know, guy.”

“I requested opposite air speed at my discretion before the break,” the F/A-18 pilot, with the callsign Snake 2-1, can be heard saying. “Misunderstanding, I suppose.”

After landing, the F/A-18 pilot asked for a phone number to contact the air traffic control office, and a controller replied, “Yeah, I was going to give you the number here because I guess there was a miscommunication. I misunderstood what was requested, I guess,” according to the Post.

The FAA said it is investigating the incident, including how close together the aircraft came. The administration’s safety experts follow up on “all events,” even when a collision wasn’t imminent or even possible, according to the FAA.

The F/A-18 also “conflicted” with another civilian aircraft, flying near a runway while a small Piper PA-28 was preparing for takeoff, according to the FAA.

The fighter jet came from Marine Fighter Attack Squadron 323, which is based out of Marine Corps Air Station Miramar, California, Marine spokeswoman Capt. Stephanie Leguizamon said Thursday via email to Marine Corps Times.

As of a few days after the Sept. 29 deactivation of the Marine Corps’ only F/A-18 training squadron, Marine Fighter Attack Squadron 323 is home to both seasoned and student F/A-18 pilots, Leguizamon said. But that transition took place more than a week after the close call.

The squadron had been involved in routine training in the Brownwood Military Operating Area northwest of Austin and was doing refueling operations at Austin-Bergstrom Airport, according to Leguizamon.

“A preliminary assessment of the event at the Austin-Bergstrom airport indicates that the pilot complied with air traffic control direction,” Leguizamon said.

The Marine Corps is cooperating with the FAA and is investigating the incident itself, the Marine spokeswoman added.

The incident was the third known close call in 2023 at Austin-Bergstrom Airport, in the Texas capital.

In June, an Allegiant Air flight came within 200 feet of a small aircraft, KVUE reported. In February, a FedEx cargo plane and a Southwest Airlines jet carrying 128 people were seconds away from colliding because of an apparent mistake by an air traffic controller, according to The New York Times.

A New York Times investigation in August found close calls involving commercial airlines were happening, on average, multiple times a week, often because of mistakes by understaffed air traffic control. But there hasn’t been a fatal plane crash involving a major U.S. airline since 2009, the outlet reported.

“One close call is one too many,” the FAA said in the statement to Marine Corps Times. “The FAA and the aviation community are pursuing a goal of zero serious close calls, a commitment from the Safety Summit in March.”

The FAA said it relies on several layers of anti-collision measures, including commercial aircrafts’ collision avoidance systems, runway surface safety technology at big airports and “robust procedures.”

“Air traffic controllers and pilots also play critical roles,” the FAA said.

Senate leaders filled three vacancies on the Joint Chiefs of Staff — including the chairman post — after a surprise breakthrough in the ongoing chamber confirmation fight that has snarled hundreds of military promotions for months.

Gen. Charles Q. Brown was confirmed as the new Joint Chiefs chairman by an 83-11 vote Wednesday night. Gen. Randy George, the nominee for Army chief of staff, and Gen. Eric Smith, the nominee for commandant of the Marine Corps, were confirmed on Thursday.

The news came as Sen. Tommy Tuberville, R-Ala., prepared to force a chamber vote on Marine Corps nominee Smith, whose nomination has been held up since June by Tuberville as part of a blanket hold he has put on senior military promotions. Tuberville has been pushing for votes on individual nominees, but Democratic leaders had balked at his demand.

Schumer on Wednesday angrily blasted Tuberville’s moves as partisan games but acknowledged that some confirmations needed to move ahead as soon as possible to keep the ongoing political fight from turning into a national security threat.

“Due to the extraordinary circumstances of Sen. Tuberville’s reckless decisions, Democrats will take action,” he said. “It’s not the path a vast majority of senators on either side of the aisle want to go down, but Sen. Tuberville is forcing us to face his obstruction head-on.”

Schumer indicated he would oppose similar individual or small-group votes of defense nominees in the future. Ahead of Wednesday’s votes, Tuberville said he was pleased with the outcome.

“I’m OK with it,” Tuberville said. “I’ve been saying that for months. Today we called them out on that, and they blinked.”

Tuberville’s objections center on changes announced last fall to the Defense Department’s abortion access policy, which allows travel stipends and leave time to service members forced to travel across state lines to access abortion services.

The White House and congressional Democrats have called the move critical health care for service members. Defense Secretary Lloyd Austin has argued the policy allows the military “to recruit, retain, and maintain the readiness of a highly qualified force.”

But Republicans have largely decried it as an illegal work-around of state and federal laws. House GOP lawmakers have included plans to roll back the military abortion policy in a series of pending defense budget bills.

Tuberville’s holds have snarled the typically non-controversial military promotions process. Wednesday’s deal filled in three key leadership positions but still leaves the fate of nearly 300 others in doubt.

The new Joint Chiefs

Currently, the Army, Navy and Marine Corps are without confirmed service chiefs because of Tuberville’s holds. In each case, the second-in-command leaders for the services are taking on the role of acting leader.

The chairman of the Joint Chiefs of Staff, Army Gen. Mark Milley, is set to retire at the end of the month. Brown is President Joe Biden’s choice to replace Milley as the top uniformed officer in the military, and is the second Black officer to hold the post.

The prospect of leaving the most senior uniformed military post open for any stretch of time has caused significant concern within the Pentagon and White House, as well as around Capitol Hill.

The Marine Corps was the first military service to face a senior leadership vacancy, following the legally required departure of Gen. David Berger in July.

Smith, officially the assistant Marine commandant until Thursday, took on Berger’s responsibilities upon his predecessor’s retirement. In his acting role, he could not issue the commandant’s long-term planning guidance, and he doesn’t have a deputy to help him juggle the work of leading the Marine Corps and serving on the Joint Chiefs of Staff.

Smith has refrained from criticizing Tuberville directly, in keeping with the norm that uniformed military leaders stay out of political fights. But he warned at his confirmation hearing in June that the hold on nominations could hamper military readiness. And he said in September that he fears his “not sustainable” lack of sleep will make it hard for him to make good decisions, Marine Corps Times reported Monday.

In August, the Army became the second military service to have no Senate-confirmed leader at the top. Gen. Randy George, the Army’s vice chief of staff, also served as the Army’s acting leader, performing a double duty akin to Smith’s.

Brown previously served as Chief of Staff of the Air Force, and his promotion leaves that post vacant now.

Nominees still waiting

Among the remaining pending nominees are Adm. Lisa Franchetti, Biden’s pick to serve as the top Navy officer, and Gen. David Allvin, nominated to be the top Air Force leader. Those two had confirmation hearings last week and are expected to have their files forwarded to the full Senate in the next few weeks, where they will then face Tuberville’s opposition.

Even with Smith now taking over the most senior Marine Corps post, he still lacks a top deputy, because Tuberville’s remaining holds include Lt. Gen. Christopher Mahoney’s nomination to be assistant commandant.

The same is true of George, who won’t get the assistance of Army Lt. Gen. James Mingus, the vice chief nominee, unless the Senate confirms him sometime in the near future.

Ahead of Wednesday’s vote, National Security Council spokesman John Kirby said the moves by the Senate were “good for the United States Marines, certainly good for the United States Army and good for the Joint Staff, but it ain’t good enough for US national security. These holds need to be lifted, all of them.”

On Tuesday, officials from VoteVets – which has ties to the Democratic party – set up posters with the names and faces of all the blocked nominees on the grounds outside the Capitol. Tuberville said he was aware of the display but unmoved by it.

Earlier in the day, Senate Democrats blasted Tuberville for his continued obstinance and criticized his Republican colleagues for not doing more to end the blockade.

“The motto of the United States Marines Corps is not ‘help out the top brass and leave everyone else behind,’” said Sen. Elizabeth Warren, D-Mass. “Sen. Tuberville evidently does not understand that.”

Tuberville said he has no plans to change his stance on nominees now to speed up filling the remaining vacancies.

“They finally figured out I won’t want to give in, and I’m still not,” he told reporters. “Let’s do these votes one at a time and or change the (abortion) policy back.”

But Sen. Tim Kaine, D-Va., said he was confident that Wednesday’s breakthrough will produce more confirmation agreements in coming days.

“We’re going to keep on the pressure, and I think you’re going to see more on this next week,” he said.

The justices writing for the 6-3 conservative majority noted the federal government had written a friend-of-the court brief urging them to protect the use of race as a factor in admissions decisions — often called affirmative action — in part to ensure racial diversity in service academies.

Chief Justice John Roberts wrote in a footnote in the majority opinion, “No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context.”

“This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.”

The petitioners, anti-affirmative-action organization Students for Fair Admissions, had argued in a pair of related cases that affirmative-action practices at Harvard University and the University of North Carolina amounted to racial discrimination, especially against Asian American applicants.

The Supreme Court’s majority agreed, writing that affirmative action violates the clause of the 14th Amendment that ensures “equal protection of the laws” regardless of race.

“Eliminating racial discrimination means eliminating all of it,” Roberts wrote for the majority.

Supporters of affirmative action have maintained that universities have a compelling interest in enrolling a racially diverse student body. And that goal, they insisted, would be next to impossible to achieve without race-conscious admissions.

In August 2022, 35 former top military leaders — including four former chairmen of the Joint Chiefs of Staff, among them retired Marine Gen. General Joseph Dunford and retired Navy Adm. Michael Mullen, and eight former service academy superintendents — filed a friend-of-the-court brief arguing that affirmative action was necessary for national security.

The retired leaders emphasized that the officer corps already is significantly less racially diverse than the enlisted troops. Increasing that gap, they warned, could diminish the military’s legitimacy in the eyes of some Americans, hinder engagement with foreign countries and threaten internal morale.

Many veterans have dismissed claims that affirmative action is necessary for national security.

A group of more than 600 veterans — among them 21 Medal of Honor recipients and some former leaders of service academies — in May 2022 filed a friend-of-the-court brief asking the Supreme Court to ban the practice.

Far from boosting morale, this group maintained, affirmative action “can only foster a culture of arbitrary advancement, disunity, and frustration.”

The retirees in favor of affirmative action argued that, as a matter of military diversity, affirmative action isn’t important just at service academies. They maintained it was also important at civilian colleges and universities, where the majority of new officers receive their degrees, and where many receive commissions through ROTC programs.

Justice Sonia Sotomayor echoed that point in her dissent.

“To the extent the Court suggests national security interests are ‘distinct,’ those interests cannot explain the Court’s narrow exemption, as national security interests are also implicated at civilian universities,” Sotomayor wrote in the dissent, which was joined by the two other most liberal justices, Justices Elena Kagan and Ketanji Brown Jackson.

The Supreme Court had been widely expected to decide affirmative action was unconstitutional in most universities. But at an oral argument in October 2022, Roberts raised the possibility of not deciding on service academies as part of the cases.

It is common for courts to grant heightened deference to the military’s interest in national security. The military’s desire for racial diversity among officers was one of the stated reasons the Supreme Court upheld affirmative action in higher education in the 2003 case Grutter v. Bollinger.

Lawrence Friedman, a professor at New England Law Boston and an expert on constitutional and national security law, said in a statement to Military Times on Thursday, “At some point, it seems likely that any use of race-conscious admissions policies at the nation’s military academies will be challenged.”

“But, by that time, it may be that the academies have modified their admissions policies, as all competitive public and private colleges and universities now must, to ensure diversity through means that do not rely upon race as a factor.”

Gen. David Berger, who has served in the role since July 2019, must retire July 10.

Defense Department officials had hoped to have his replacement in place shortly after his departure, but the congressional calendar and ongoing political fights over military abortion access policies have thrown that timeline into disarray.

As the current assistant commandant of the Marine Corps, Smith would step into the commandant role on an acting basis if the Senate can’t finalize his confirmation by July 10.

But the Senate is scheduled to take a two-week legislative break starting June 23, and Senate leaders said they have no path to finish the confirmation before then.

By law, an acting commandant has the same duties and powers as a commandant.

However, defense leaders in recent years have emphasized that acting officials do not typically launch new programs or put in place new force-shaping initiatives until they are formally confirmed for the job.

Smith likely will have to serve as acting commandant for days — or weeks — while the Senate stalemate over his confirmation is resolved.

Smith received mostly positive reviews from members of the Senate Armed Services Committee during his confirmation hearing earlier in June.

As the top Marine leader, Smith pledged, he will focus on “accelerating being more lethal, accelerating being even more ready” as a service.

The committee on Thursday advanced his nomination without objection. In past years, Senate leaders would typically fast-track full-chamber confirmation of nominations such as Smith to ensure a continuity of leadership at the military service.

However, that won’t happen this time, because of an ongoing hold by Sen. Tommy Tuberville, R-Alabama, on all senior military nominees over his objections to the Defense Department’s abortion policies. More than 200 nominees have been caught up in the hold since March.

In fall 2022, Defense Secretary Lloyd Austin announced plans to provide leave time and travel stipends for troops and qualified family members to travel across state lines to receive abortion services. Pentagon officials said the move was needed in light of numerous new state laws limiting reproductive care options.

But Tuberville — and several other Republican lawmakers — have attacked the policy as an illegal overreach by military leaders. Tuberville has insisted he will not allow any nominees to move quickly through the chamber until the policy is rescinded or until Congress can vote on whether to permit it.

That has remained true for Smith even though Tuberville praised Smith at his confirmation hearing June 13 and declared, “Congratulations on your nomination, and look forward to supporting you.”

Tuberville’s staff members on Thursday reiterated the senator’s support for Smith as a nominee but opposition to the abortion policy. They said he does not plan to drop his hold to speed Smith’s case.

Smith’s nomination isn’t the only high-profile military leadership change threatened by Tuberville’s hold. President Joe Biden’s pick for the next Joint Chiefs chairman, Air Force Chief of Staff Gen. Charles Q. Brown Jr., also faces a delay in taking over that role because of the political showdown.

Smith told senators at his confirmation hearing that the delay in confirmations could leave worrisome gaps at high-level Marine commands and cause a trickle-down effect that would make it harder for some lieutenant colonels to get promoted.

“I think it certainly compromises our ability to be most ready,” Smith said.

Senate leaders can get around Tuberville’s holds, but doing so would take several days of parliamentary procedures. Senate Majority Leader Chuck Schumer, D-New York, said doing that for each of the 200-plus defense nominees would snarl all Senate business for months.

On Thursday, Senate Armed Services Committee Chairman Jack Reed, D-Rhode Island, said he is exploring all options to accelerate Smith’s confirmation, but did not provide any details.

Even if Senate leaders opt to handle Smith’s nomination on an individual basis, that work won’t get done for at least a few more weeks, after the Senate’s planned recess concludes.

Four Marines have served as acting commandant since the Corps’ inception, according to a list compiled by the Marine Corps University’s History Division.

One of them was Archibald Henderson, who served as acting commandant from Sept. 16, 1818, until March 2, 1819, and would go on to serve as commandant for more than 38 years.

Consider President John F. Kennedy. As a young man, he suffered a host of painful, disqualifying physical ailments, such as back pain and ulcers, but leaned on his father’s connections to get around the required Navy medical exams.

Lt. Kennedy went on to command a patrol torpedo boat that a Japanese warship sheared in half during World War II, and he later received a Purple Heart and Navy and Marine Corps Medal.

In recent decades, the lies told to enlist haven’t approached those extremes.

Nonetheless, fudging medical histories has been a key step on many troops’ path from applicant to recruit, according to a group of active-duty military recruiters who spoke with Military Times for this story.

“What it takes to get in the Army is, quite frankly, a lot of fraud and perjury,” one recruiter said.

But this tacit tradition — technically a crime — largely stopped in 2022, the same year the military’s recruiting numbers fell precipitously and today’s recruiting crisis came to the fore.

That year, the Defense Department brought a new medical records platform, known as Military Health System Genesis, online at Military Entrance Processing Stations, where applicants are medically examined before they can sign up.

Now, a year after Genesis was first used by MEPS, some military leaders acknowledge the new system has hindered recruiting.

Multiple recruiters on the ground, from different services and locations, are more blunt in their assessments. They say Genesis has ended an applicant’s ability to gloss over or knowingly ignore minor medical issues, such as past use of ADHD meds or inhalers, before signing up.

In the process, those recruiters say, it has turned the military’s stream of applicants into a trickle and made a recruiter’s already-difficult job even harder.

“Nobody says it out loud in the wrong company, but the whole DoD knows that before Genesis we were able to put people through with a lot of different things, within reason, because whatever that applicant decides to disclose is whatever that applicant decides to disclose,” Joe Brown, a Marine Corps recruiter and staff noncommissioned officer in the South, told Military Times. “Now that Genesis exists, we can no longer hide things.”

Five recruiters who spoke with Military Times were given pseudonyms in this report and granted anonymity for fear of reprisal.

Broad concern

The recruiting crisis has evoked concern among leadership and on Capitol Hill. The Army missed its fiscal 2022 goal by 15,000 soldiers, and the other branches, except for the smaller Space Force, barely made quota or had to pull extensively from their pools of delayed-entry applicants.

Officials told lawmakers this month that they expect the shortfalls to worsen this fiscal year.

Political leaders and partisan pundits blame today’s recruiting crisis on everything from so-called “woke” diversity training to kids these days being too fat and lazy to cut it.

Military brass have blamed an under-educated public, a roaring civilian jobs market and bad perceptions of service fueled by negative headlines.

But multiple recruiters who spoke with Military Times blame Genesis above all else.

“When Genesis hit the scene, it was a night-and-day difference,” Navy recruiter Peter Harris, a petty officer, noted.

Once an applicant signs their consent, Genesis vacuums up the entirety of their medical history, flagging past and present health issues.

That makes it harder, some recruiters say, to squeeze applicants through despite past maladies they did not disclose — such as ADHD, depression or a years-old broken bone. Recruiting numbers suffer as a result. Previously, such applicants could enlist if they concealed, or genuinely had forgotten about, these issues.

Genesis is, broadly, a medical records system for service members, families and veterans that aims to make it easier for doctors to share medical information. It came about as part of a congressional mandate that the Defense and Veterans Affairs departments digitize health records. The contract for Genesis, awarded to Leidos, is worth $5.5 billion, according to the Government Accountability Office.

In the context of recruiting, the system allows processing stations to look at applicants’ civilian medical records, including hospital visits and prescriptions.

Genesis came to the military’s 67 MEPS locations in March 2022, when the head of U.S. Military Entrance Processing Command heralded it as “a leap in medical modernization.”

“The new electronic health record will follow applicants from the moment they walk through ‘Freedom’s Front Door’ into active duty, and eventually into the VA system,” Col. Megan Stallings, the command’s leader, said in a release at the time.

While multiple recruiters told Military Times that the system is flagging more applicants, Pentagon spokeswoman Lisa Lawrence said in an email that Genesis “does not reduce the population of qualified applicants.”

“Prior to screening at (MEPS), an individual has, or does not have, disqualifying medical conditions,” she said. Genesis “merely confirms the physical and mental readiness of applicants by enabling authoritative review of their health history.”

Lawrence said Genesis “is not the root cause behind the Services failing to meet their recruiting mission,” but she did not respond by Military Times’ deadline to emailed follow-up questions directly asking if the Pentagon believes Genesis was playing a role in the recruiting crisis.

Lawrence blamed, in part, low willingness of young people to serve, as well as “the residual effects” of the COVID pandemic that prevented recruiters “from meeting with youth and their influencers in our high schools.”

But data provided by the Pentagon shows each service exceeded its recruiting goals in fiscal 2020 and 2021, when pandemic-related lockdowns and disruptions to everyday life were far more prevalent.

In a nod to the current recruiting reality, the Pentagon in November began a pilot program that updated regulations for 38 medical conditions that would allow some recruits to join as long as they met certain timelines for previous treatment and diagnosis. The pilot will be in effect through June, Lawrence said, and then the DoD will analyze whether it would make sense to extend the program.

To ease the ongoing recruiting crisis, senators have urged the DoD to allow applicants who had sought treatment for some mental health issues.

“We disqualify young men and women if they’ve seen a psychiatrist or if they’ve been on medicine for mental health, and yet we want them to try to improve themselves,” Sen. Dan Sullivan, R-Alaska, said during a Senate Armed Services Committee hearing in March.

“There are still people who are eager to join — it’s just really, really hard to actually get them in,” said Harris, the Navy recruiter. “Because, you know, they can see their medical history. I think that would be the biggest issue as to why recruiting numbers are so terrible.”

New hurdles

Smith, a soldier who has spent the last few years recruiting, admitted he helped applicants massage their medical history to get them in before Genesis — up to a point. He wouldn’t, for example, allow someone with asthma to get through.

But of the 30 applicants he recruited, he said, “only one was clean as a whistle.” In some cases, the problem wasn’t medical; a history of marijuana use was also something he would “grease wheels for.”

The recruiter also lied about his own medical history to enlist.

As Smith went through the applicant pipeline, officials requested medical paperwork for a procedure he underwent years ago, but he had no way to get those records.

“My recruiter, for me to get in, just made up medical paperwork, made up a doctor and submitted it,” Smith said. “And that’s how I joined. That’s what it takes, or else I would never be in.”

He’s not the first Army recruiter to speak out about Genesis’ impact on the mission. Three other Army recruiters voiced similar concerns to Task and Purpose in September.

Some young people whom Genesis flags acquire waivers and go on to enlist.

At least one in six military recruits received waivers to enter service in fiscal year 2022, the highest proportion in at least 10 years, according to service data.

But some, dispirited by delays caused by Genesis, back out entirely, while others end up unable to join, recruiters say.

Meanwhile, recruiters say they still face the pre-Genesis pressures to make their quotas, despite the new hurdles.

“I’ll walk around Walmart at 11 o’clock at night just begging someone to sit down in my chair so I can go home,” said Jon Johnson, a Marine recruiter. “I’ve got a wife and two kids. This sh-t’s not it.”

Yes means ‘your enlistment stops’

Recruiters have a tongue-in-cheek saying about how an applicant’s answers to yes-or-no questions on the military’s medical history questionnaire decides their fate.

The form requires yes or no answers. Hay fever? A change of menstrual pattern? Broken bones?

“Yes” stands for “your enlistment stops.” “No” stands for “numerous opportunities.”

“You never had asthma. You never had ADHD,” the Navy recruiter said. “You broke your leg when you were six? “Don’t talk about it.”

In the Air Force, Genesis’ arrival is disqualifying more applicants during the medical process, while making medical screenings longer, Maj. Gen. Edward Thomas, head of Air Force Recruiting Service, told Military Times in February.

Applicants don’t formally sign up until they’re cleared, and that longer process gives them more time to back out.

“Genesis is the right thing to do — it’s mandated by Congress,” Thomas said. “But it wasn’t ready for deployment in recruiting.”

“If MHS Genesis had not been implemented in recruiting at the same time that the recruiting market had a sharp downturn, it would have been far more manageable,” he added.

The Army did not directly answer questions about whether Genesis is driving recruitment challenges, but Army Recruiting Command spokesman Maj. Tom Piernicky acknowledged that sorting through the medical records Genesis flags “is time consuming and labor intensive, and has added an element of complexity to the accessions process for initial entry applicants.”

“The Army is committed to maintaining high enlistment standards, and MHS Genesis has helped the Army to better determine an applicant’s suitability for Service from a health and safety standpoint,” Piernicky said. “With regard to current challenges, the Army, along with the other services, continue to face unprecedented recruiting conditions due to a combination of factors.”

Navy Recruiting Command spokesman Cmdr. Dave Benham said the access to additional information that Genesis provides increases “average processing time,” but that the system allows the Navy to make more informed decisions regarding an applicant’s medical history.

“It also means fewer cases of Sailors entering the Navy that later go through medical review boards for pre-existing conditions that were not disclosed at accession,” he said. “Our recruiters are working hard to consider the entire person and to reduce barriers to enlistment where possible, while still ensuring we deliver on that mission.”

Marine Corps spokesman Jim Edwards blamed the same societal factors as the Pentagon and other services, as well as “media inflation,” for the struggle.

Genesis, Edwards said in an email, “has extended the contracting timeline for some applicants, but it is not the sole or main factor driving recruitment difficulties.”

“Our hard-working Marine recruiters continue to accomplish the assigned recruiting mission and we remain on track to accomplish the FY23 accession mission,” he said.

Delayed gratification

Recruiters said common holdups for applicants include ADHD medication, antidepressants and counseling. Mental health was also a common reason that applicants sought medical waivers in FY22, according to data provided by DoD.

Diagnoses of mental health conditions are higher for Gen-Z than for older generations. The American Psychological Association reported in 2019 that Gen-Z and millennials are more likely to report their mental health as fair or poor, and more report receiving treatment or therapy, compared to Gen-Xers or baby boomers.

Recruiters were quick to add that Genesis creates hurdles even for applicants who do what’s legally required of them: honestly report what they remember of past medical conditions. Some applicants have forgotten about issues that left no long-term effects but require additional documentation once they pop up in Genesis.

Don Wilson, a Marine staff NCO recruiter, said he thinks a screening system like Genesis has benefits in ensuring that only applicants ready for the rigors of the military can join.

But he wishes applicants didn’t get flagged for having attended counseling after a difficult life event or being prescribed an EpiPen years ago.

Recruiters say the increased disqualification of applicants caused by Genesis makes it that much harder for them to hit their monthly quotas, exacerbating the long hours and grueling sales pitches that have long defined military recruiting.

Such applicants can still make it into the military if they provide additional medical documentation or secure waivers for certain conditions, but recruiters say that is often easier said than done.

Marine recruiter Johnson and others said Genesis increases the time between a potential enlistee walking into his office and shipping to boot camp, even if they are fully qualified.

And when dealing with impatient teenagers, time isn’t a resource recruiters can afford to waste.

Johnson recalled a 17-year-old girl who came into his office and who was clearly in outstanding shape and healthy enough to ship off to Marine basic training.

Yet health records pulled by Genesis showed that she had sprained her wrist as a child, an injury that hadn’t required surgery, stitches or painkillers, Johnson said.

He had to chase down documentation proving she was good to go, and it took two months to get her processed, Johnson said.

Recruiters for other services echoed the Marine’s take: that Genesis makes processing too long, allowing kids to back out or change their mind before they have signed their contract.

“I had to battle the disinterest” of the teen, Johnson said. “For most people, they’re looking for instant gratification. That’s also a common trend we’ve seen out here: If I can’t get them something now, they generally leave.”

“It comes to the point where they’re like, ‘This is too much work, I’m just gonna go apply at Starbucks,’” Navy recruiter Harris said.

Adapting and overcoming

Factors besides Genesis make it challenging to recruit.

In addition to poor fitness and low desire to serve in the military among teenagers, recruiters said many schools do not welcome them onto their grounds, a challenge exacerbated by the pandemic. Some parents don’t want their babies to take on the military’s risks.

But these problems existed long before today’s recruiting crisis, the Marine recruiter Brown noted.

“Since the Marine Corps existed, there’s been obese people,” he said. “There [have] been low test scores. That’s something we’ve always dealt with.”

What’s new is Genesis.

Before 2022, Brown said, he had never missed a monthly target during his four years as a recruiter.

Then came Genesis. He started missing his goals, and it took him a few months to get back on track.

Meanwhile, the services are working to adjust to the longer recruiting timelines associated with Genesis.

The Army last year activated some of its Reserve doctors to deal with a backlog in waivers.

In addition, the Army and Air Force have instituted a Genesis “prescreen” so that applicants and recruiters can better understand what parts of a medical history will be relevant and require documentation at MEPS before they arrive at the processing station, according to service officials.

Navy and Marine Corps officials said that, as was the case before Genesis, recruiters review an applicant’s medical history with them to determine if they have any medical conditions that will need to be addressed at MEPS.

Still, several recruiters told Military Times that their leaders’ response to recent shortfalls has been to tell them to work harder. Make more calls. Improvise, adapt, overcome.

Brown said he used to work about nine hours a day as a recruiter. Now it’s up to 12, plus weekends. He said that’s less than most of his peers.

These days, Harris, who has been a Navy recruiter since before Genesis, said many recruiters he knows are on antidepressants — one of the very things for which Genesis screens applicants.

Military Times reporters Rachel Cohen, Davis Winkie and Meghann Myers contributed to this report.

Marine Commandant Gen. David Berger, speaking at a panel at the Navy League’s Sea-Air-Space in National Harbor, Maryland, stressed the importance of collaborating with other countries.

“Sometimes we get in our own way, by over-classifying, over-compartmentalizing,” he said. “And yet we say our strategy is underpinned by allies and partners. You can’t have it both ways.”

Partnerships are less formal relationships than alliances and don’t involve a treaty, according to a Defense Department definition.

Berger said that top leaders within the DoD have worked to adjust classification policies to make it easier for services to train alongside other nations.

At a separate panel Monday at the Sea-Air-Space conference, the one-star general in charge of strategy and plans for the service’s plans, policies and operations department raised a similar point about classification.

“We want to have the greatest combination of naval power that the world has ever seen,” Brig. Gen. Simon Doran said. “And the way we need to do that is we need to work to the greatest extent possible to reduce the classification of as much information so that we can share more with our allies and partners.”

The over-classification problem isn’t new, nor is it unique to the Marine Corps.

The Project On Government Oversight found in 2019 that the Pentagon — long inclined toward secrecy — increased its withholding of documents from journalists during the Trump Administration. The Project on Government Oversight, an independent watchdog, termed that tendency a “war on transparency.”

The Marine leaders’ comments echo what the deputy chief of U.S. Space Command said in January.

Lt. Gen. John Shaw said over-classification had recently prevented the command from sharing information with U.S. partners, as C4ISRNET reported

In 2020, nine four-star regional commanders wrote an internal memo asking intelligence agencies to declassify more information about “pernicious conduct” by China and Russia so the United States could sway support of American allies against them, Politico reported.

Brig. Gen. David Walsh of Marine Corps Systems Command laid out the prospective uses of drones and robots April 4 at the Navy League’s Sea-Air-Space conference in National Harbor, Maryland. He also detailed the tripwires, technical or otherwise, that could hamper effectiveness in the field.

The Corps’ experimentation with systems that require no crew comes as part of an ambitious revamp of the service. Called Force Design 2030, the plan seeks to make Marines nimbler and less detectable in contested areas. A Force Design document from 2022 mentions the Long Range Unmanned Surface Vessel and “swarming” unmanned aircraft systems, among others, as an example. It also calls for drone capabilities to “expand and increase dramatically.”

“Everything from what we’re doing with LRUSV, we’re starting to experiment with those types of platforms, from small to large,” Walsh said. “They can move supplies and people and weapons around the battlefield,” especially in dispersed or treacherous conditions in the Indo-Pacific, he said.

Here’s how the Marine Corps may use uncrewed technology, according to Walsh:

A ‘persistent sensor’

Uncrewed systems will be a “persistent sensor” on battlefields of the future, Walsh said, capable of spying in places too distant or too chaotic to explore.

“Part of our role as a stand-in force is to do reconnaissance and counter-reconnaissance,” he said, referring to the concept of Marines constantly positioned close to an adversary. “So, this is persistent eyes on the battlefield, on the shipping lanes, on the sea lanes, that allow us to identify targets, maintain custody of those targets and” act accordingly.

Logistics

The Marine Corps’ logistics system is especially in need of modernization, Commandant Gen. David Berger has said.

The Corps last month published an updated logistics doctrine for the first time since 1997, in an effort to adapt to an increasingly contested environment. Drones will be a part of the Corps’ new logistics strategy, according to the doctrine.

Walsh said Tuesday that there is a “huge opportunity” for machines when it comes to shuttling resources.

Can you hear me now?

Uncrewed tech could also serve as a communications relay, a means to boost signals and link far-flung Marines who would otherwise be disconnected and at risk of attack.

“Again, as we’re spread out in smaller units — extending out communications lines and maintaining communications, sharing data that we get from those sensors to somebody that can have an effect on target is really, really important,” Walsh said.

Electronic warfare

Uncrewed systems “of course” can play a role in “effects, fires, all-domain fires,” Walsh said.

Autonomous or remotely piloted vehicles could also be quickly jeopardized by foreign jamming or hacking, Walsh warned. Such invisible attacks would leave them ripe for interdiction.

“Operating in that contested EW environment, that contested spectrum, we have to be able to maintain control of those platforms and also be able to share the information those platforms are gathering,” Walsh said. “We have concerns about cybersecurity, especially looking at some of the commercial platforms.”

Both China and Russia are thought capable of interfering with U.S. networks and electronics. And given the heightened importance of cyber operations in a potential conflict, the Corps has emphasized the need to recruit and retain Marines with cyber skills.

Power supply

Ensuring uncrewed tech has enough power to keep going will be critical. And the matter is only complicated by the way Marines expect to fight in the future: in smaller groups, jumping from island to island, under constant threat.

“We have concerns about power and energy. We need to fuel and power these systems somehow,” Walsh said. “Getting fuel, getting power, getting electricity to keep these things flying or operating is a challenge for us.”

The Corps this year published its Installation and Logistics 2030 strategy, which examines supply chains under fire.

In remarks accompanying the report, Lt. Gen. Edward Banta, deputy commandant for installations and logistics, described the U.S. as having been “spoiled by two decades of conducting strategic and operational logistics in a permissive environment.”

The development process

Uncrewed systems are a “fast-moving technology,” which means nailing down the best of the best and getting it to those who need it is difficult, Walsh said.

“The acquisition, keeping up with that, to ensure our Marines are able to take advantage of the cutting-edge technology, is always a challenge,” he said. “So as we look at those challenges, bringing the best of what industry has to the hands of our Marines, we want to be as agile as we can, particularly around capabilities, not so much platforms.”

The ARV is supposed to be agile on both land and water, and adept at sensing threats and conveying that information across networks.

The prototypes were designed with an eye toward reconnaissance and counter-reconnaissance — two of the main components of Force Design 2030, the Corps’ modernization initiative. Force Design 2030 is particularly focused on adapting to the rise of precision-strike capabilities, which, Corps officials say, make it imperative for Marines to be able to track opposing forces and avoid being tracked themselves.

The vehicle will be equipped with command, control, communications, computer and unmanned aerial system (C4/UAS) capabilities, according to a Marine Systems Command news release Thursday.

Thanks to unmanned aircraft that can gather data from the air, the ARV would be able to cover more ground in conducting reconnaissance than its predecessor. And, because of the more advanced communications system, it is supposed to be far better at sharing the information it collects across the battlefield. That capability has led the companies building the prototypes to compare the vehicle’s role to that of a quarterback on a football field.

Textron and General Dynamics Land Systems in December submitted their ARV prototypes, designed specifically to replace the LAV. The Marine Corps selected the two companies for a prototype contract in 2021.

The solution put forward by a third competitor, BAE Systems, involves integrating C4/UAS onto the amphibious combat vehicle, which is already in service in the Corps.

Testing of the prototypes began in early January, said Marine Corps spokesman Manny Pacheco. This evaluation stage will conclude in the third quarter of 2023, according to the SYSCOM release.

The Marine Corps will test how the prototypes move over complex terrain, stress their C4/UAS capabilities and evaluate other aspects of performance, the SYSCOM release stated.

Production of the ARV could cost an estimated $1.8 billion to $6.8 billion over five years, according to the Congressional Research Service.

The Marine Corps has used the LAV since the 1980s and is scheduled to retire them by the 2030s, by which time the ARV is supposed to be in service.

The Marine Corps said in 2020 that it had assessed how the LAV would perform against a near-peer adversary and found it fell short. In recent years, the LAV has also been the most prone to accidents of the Marine Corps’ tactical vehicles, a July 2021 Government Accountability Office report found.