LAS VEGAS (KTNV) — We depend on our military to protect our freedom and our fundamental rights. But 13 Investigates found some who serve our state and country don't always have the same protections.
Now, a state lawmaker wants to change that.
Senate Bill 95 was introduced this session in response to an issue we first reported on two years ago as part of our Guarding the Guardsmen series.
A new proposed law could close a legal loophole that military legal experts say will level the playing field and protect guard members' fundamental rights.
WATCH: New proposed law seeks equal justice for those who serve in the Nevada National Guard
Honoring Allison
March 4 was the second anniversary of the worst day in Felicia Cavanagh's life.
"There are no words ... losing a child. There are no words."
Cavanagh's daughter, Sgt. First Class Allison Bailey, went from what records show was a model soldier in the Nevada National Guard to being kicked out over claims she harassed fellow soldiers. The 34-year-old mother of two died six weeks later when her heart and lungs failed due to multiple underlying conditions.
Speaking at Bailey's funeral, Cavanagh said, "I will pursue the truth pertaining to Allison's unconstitutional treatment from the Nevada Army National Guard, and do my utmost to hold the correct people accountable, no matter how long it takes."
WATCH: The case of Sgt. 1st Class Allison Bailey
Cavanagh's fight for accountability began in 2023. It continues today with a push to change state law.
"It does not benefit me. And clearly, it's not going to benefit my daughter," Cavanagh told me. "I'm doing it for our current National Guard members and the tens of thousands that will serve our state in the future."
She found an ally in Nevada Senator Lisa Krasner.
"She (Cavanagh) asked me to carry this bill in the 2025 legislative session," Krasner explained.
If passed, SB 95 would allow members of the Nevada National Guard who are accused of misconduct to demand a court-martial in lieu of non-judicial punishment.
Non-judicial punishment is an internal administrative disciplinary process controlled by the military: a process experts say provides no checks and balances. However, a court-martial is a more traditional trial process in the military justice system. It involves a judge, the ability to call witnesses to testify, rules of evidence, and sometimes a jury.
Nevada is one of only six states where guard members do not have the right to demand a court-martial.
Bailey's story began in 2020 when she tried to blow the whistle over what she claimed was a bullying and toxic work environment in her unit, but shortly thereafter, Bailey found herself under investigation through a disciplinary process called an Article 15. She faced nearly two dozen allegations that the guard called a "Pattern of misconduct," including "Engaging in inappropriate relationships with multiple junior soldiers," "Disobeying orders and regulations," and "Not showing up for work or showing up late."
Bailey made a video diary to chronicle her experience, sending the videos to her mother.
"The last video she sent me literally was, 'Mom, I'm going to spend the rest of my life working on this because it's wrong'."
Bailey had also filed a complaint saying she'd been sexually assaulted by a fellow guardsman. That case was referred to the Nevada Department of Public Safety, who later closed the investigation citing "Insufficient evidence."
Through the Guard's own disciplinary processes, she was eventually demoted and kicked-out with an "Other than honorable" discharge after serving for 17 years.
"It is deeply disappointing and is quite unconscionable," said Dr. Dwight Stirling, a former JAG officer with the California National Guard. Stirling founded the Center for Law and Military Policy and also teaches law at USC. Bailey reached out to him for advice after she was discharged.
WATCH: Disorder and discipline in the Nevada National Guard
Speaking about the internal disciplinary process, Stirling told 13 Investigates, "It's a situation where the Nevada National Guard can simply predetermine the winner and the loser in a case, and then can write a script that will manipulate the system in a way to get to that outcome."
Cavanagh added that Bailey, "had a military-assigned attorney but there really isn't much that you can do when it goes to a commander and the commander makes the full decision."
Chris Tinsman was Bailey's military-assigned attorney.
"Not having a process for soldiers to have their day in court is just unacceptable on a constitutional level," he told me.
In our previous reporting, the guard told me Bailey was provided due process during both the investigation and the subsequent separation board that resulted in her discharge.
Tinsman and Stirling both believe the right to a court-martial protects soldiers from retaliation when the military governs every aspect of the disciplinary process.
"And be the judge, jury and executioner," Sen. Krasner added. "Why is that okay in the military here in Nevada? It's not okay."
WATCH: Whistleblowers claim toxic culture turns system against victims
The Nevada National Guard said in an email that it "Is not for or against the bill," but that it will come with a cost, writing, "Even one court martial drains resources from the state."
The office of the military submitted a fiscal impact note to the legislature, estimating it will cost $1.16 million dollars a year to give guard members the option of a court-martial.
"If you go to the United States Supreme Court, above the top of the court it says 'Equal Justice Under Law.' This is not equal justice when a member of the National Guard does not have the ability to get a full and fair hearing," Sen. Krasner said.
She encourages anyone associated with the Nevada National Guard to reach out to her personally and share their stories, as well as contact the Senate Committee on Government Affairs, to urge them to schedule a hearing on the bill.
Contact Sen. Krasner via phone at (702) 988-3797 or (775) 420-8411, or email her at Lisa.Krasner@sen.state.nv.us
Our Q&A with the Nevada National Guard:
1. What prompted the Nevada National Guard to submit the fiscal note attached to SB 95? Was this done at the request of the Legislature, the Governor’s office, or on the Guard’s own initiative?
The Legislative Counsel Bureau (LCB) identifies Bill Draft Requests (BDR) that have a financial impact on the state. This bill requires the imposition of infrastructure and allocation of resources that did not previously exist.
2. How was the estimate of 2-4 trials per year determined?
This estimate was made based on historical data for Article 15s and the Nevada National Guard's potential to pursue higher level punishment with the infrastructure in place from state funds. From 2015-2019, the Nevada National Guard lacked a trained judge, required infrastructure and funding to hold courts martial. This estimate is based on the Nevada National Guard having a trained judge, required infrastructure and funding for courts martial.
3. What data or precedent supports the assumption that enough service members would request a court-martial to justify this projected cost and what's the origin of that data?
Even one court-martial drains resources from the state. In the Nevada National Guard, federal funds support military readiness. State funds could be used for court martial. However, money spent to conduct a court-martial could be spent for emergencies like wildland firefighting, disaster relief activities, and other critical emergency preparedness efforts that the Nevada National Guard provides the state.
4. Does the Guard oppose SB 95 primarily on financial grounds, or is there an operational or policy concern?
The Nevada National Guard is not for or against the bill. Appropriate funding resources for a part-time military force will be needed to support the bill. The types of misconduct that would be referred to a court-martial are felony level offenses that are currently handled by a district attorney’s office, or a federal or state prosecuting agency. Adverse administrative action, to include Article 15’s and Separation Boards are appropriate to handle the type of military misconduct that would not be handled by civilian authorities.
5. How many courts martial were there between 2015-2019 when NNG members had that right?
Zero. As stated before, from 2015-2019, the Nevada National Guard lacked a trained judge, required infrastructure and funding to hold courts martial. State funds are necessary, and that is why a fiscal note was provided to go alongside the bill.
WATCH: Former service member stands up for fellow soldiers
TEXT OF EMAIL SENT TO GOV'T AFFAIRS COMMITTEE CHAIR BY RETIRED NEVADA GUARD MEMBER IN RESPONSE TO FISCAL NOTE:
Good evening Senator Flores,
My name is Dana Grigg. I am a partner at a local national law firm and am a retired NV Guard member.
As the chair to the Government Affairs Committee, I would like to provide you with background on the fiscal note submitted by the NV National Guard on SB95. Unless law has changed drastically since I retired as a JAG in 2022, I do not think the fiscal note provided on this bill is truthful or accurate. The question is simple for the funding though: Is the State of Nevada required to put members involved in a court martial on State Active Duty orders and fund it, or are the members in a Title 32 federal funding status as they are in drilling status or during a separation board?
Please see the AI print out with additional links to references that I have attached which neatly puts together the status of guard members from State Active Duty (SAD) to Title 32 (drilling status and full-time status) and Title 10 (active duty and deployed status).
I believe the state may fund civilian witness fees (typically $25 as in civilian courts) or possibly similar court fees, but NGB will be able to answer if all supporting military personnel have to be in a SAD or Title 32 status. SAD is in fact funded by the state and Title 32 is funded federally.
Additionally, though funding a court martial is a different issue, there is a difference in proceedings type as well. If a state court martial sentences a member to a discharge, the court martial sentencing order would have to be the basis for a separate separation board from federal service. Same thing for taking a stripe, I believe. An order from the court martial would then be used as the basis to have a separate Administrative Separation Board or administrative demotion. The CM order simply becomes a state conviction in the criminal system. In order to separate the member, the state has to convene a separate separation board which is in fact federally funded in title 32 status.
If I am wrong, and 32 USC does not support funding a court martial in a Title 32 status, then NGB should be able to confirm this for you. This seems to be counter to 32 USC 327, but possibly that provision was more to bring states together under a model code versus support for the actual convening of a state court martial. Please note that TDS services are defense services directly provided under Title 32 through NGB, and so under the NV guard's logic, those TDS members (who are sometimes not in Nevada) would have to be put on Nevada SAD orders in a state court martial.
I believe that the judge, prosecutor, defense counsel, panel members, military witnesses, chaplain, paralegal, SVC, or any other supporting staff would be in a Title 32 status while convening a court martial under State authority (NRS 412)--but again, this answer would need to come from NGB to verify.
Even if it is true that members must be in a SAD status to convene a state court martial, it does not seem realistic that there would be 2-4 court martials a year based on historical data. The last Nevada state court martial, that I am aware of, was almost 30 years ago. And from 2015-2019, there were zero court martials when the option was available to request one. So, why now in 2025 would there be a sudden surge? Are non-judicial punishment actions being that abused by command? Have there been requests for a court martial in NJP proceedings?
Also, the data provided in the fiscal note is a worst case scenario where a member is ORDERED to a general court martial--five panel members are for general court martials, three for special, and none are required/nor is a military judge required in a summary proceeding. If a member turns down a NJP (previous law) for a court martial, the risk of certain punishment increases. The member can be offered a summary court martial which he can turn down for a special or a general--but the convening authority decides whether to convene a special or general, not the member. See, NRS 412.308, 312, and 314. Therefore, a general does not happen without the convening authority choosing to convene one, not the member. The data provided in this fiscal note is inaccurate at best and disingenuous at worst then because it reflects only general court martials (which are at the discretion of the convening authority not the member).
WATCH: 13 Investigates reports spur former airman to speak out on reported rape, retaliation
NEVADA GUARD RESPONSE TO CHALLENGE OF THEIR FISCAL NOTE:
The Nevada National Guard is facing a resource-constrained environment with the federal government energetically looking to reallocate funding to support improving lethality, warfighting, and readiness. It is an unfortunate truth that the costs of litigation have skyrocketed in today’s legal environment and the military is not immune from these costs.
This is about funding allocation and management of personnel. The costs associated in the fiscal note accurately reflect the impact this will have on the Nevada National Guard and our limited resources that fund our dual mission in support of the federal government domestically and overseas, such as emergencies here in the State of Nevada.
Ms. Grigg never conducted a court martial during her service with the Nevada National Guard. She was never in a position to allocate funds. We stand behind our cost estimate which was developed by a senior JAG with extensive felony trial experience in the state. The combat-decorated soldiers who prepared the fiscal note for this proposed bill have tremendous experience representing the Nevada National Guard and the United States Military.