Military Law and the New NDAA

Changes include sexual assault reform, repeal of sodomy ban, numerous other important updates to UCMJ, court-martial procedure.

This article first appeared in the March 2014 issue of On Watch, MLTF’s quarterly newsletter and military law journal. 

The new National Defense Authorization Act (NDAA) of 2014, enacted Dec. 26, 2013, contains a number of significant changes to the UCMJ and court-martial procedure, some but not all are focused on military sexual assault cases. These changes are summarized below; their implications for court-martial practice will be discussed in future issues of On Watch. Section 1701 of the NDAA amends UCMJ Article 6 by adding 6b, “Rights of the victim of an offense under this chapter.” This amendment, not limited to victims of sexual assault, provides for the right

  • to be “reasonably protected” from the accused;
  • to notice of confinement hearings, court-martial proceedings, public proceedings of the service clemency and parole board, and the release or escape of the accused;
  • not to be excluded from such hearings unless the judge or investigating officer determines on clear and convincing evidence that the victim’s testimony would be materially altered by hearing other testimony;
  • reasonably to be heard at confinement hearings, sentencing hearings and the clemency and parole board;
  • reasonably to confer with government counsel in these proceedings;
  • to restitution;
  • to proceedings free from unreasonable delay; and
  • “to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter.”

Appropriate changes to the Manual for Court-Martial are to be recommended, and appropriate regulations are to be prescribed, within one year of enactment of the NDAA. Section 1702 provides for revision of Article 32 and Article 60. Article 32 hearings, now to be termed preliminary hearings, are to determine probable cause and court-martial jurisdiction, consider the form of charges and recommend disposition of the case. Formerly, the purpose of the hearing was to determine “the truth of the matter,” giving much more scope for discovery by the defense. Other than in exceptional circumstances, preliminary hearings should be conducted by Judge Advocates, and where practical this JAG will be equal to or senior in grade to government and defense counsel. Victims may not be required to testify; if they decline to do so, they will be deemed not available. Article 32 amendments will become effective one year after the NDAA’s enactment. This section also limits command “prerogative and discretion,” amending Article 60 of the UCMJ. Except for qualifying offenses (those where maximum punishment of confinement is less than two years, and the sentence adjudged does not include a punitive discharge or confinement for more than six months, but excluding sexual assault offenses), convening authorities may not disapprove, commute or suspend all or part of the sentence of a court-martial without a written explanation to be made part of the record of trial. They may not disapprove, commute or suspend all or part of a sentence of confinement for more than six months or a punitive discharge, except upon the recommendation of trial counsel for the accused’s assistance in investigation or prosecution, or pursuant to a pre-trial agreement. These provisions take effect 180 days after enactment of the NDAA. Section 1703 eliminates the five-year statute of limitations for certain sex-related offenses – rape or sexual assault, or rape or sexual assault of a child – for offenses committed on or after the NDAA’s enactment. Section 1704 provides that defense counsel will make any request to interview the victim of a sex-related offense through trial counsel. If the victim requests it, the interview may take place only in the presence of trial counsel, counsel for the victim, or a Sexual Assault Victim Advocate. (Sex-related offenses here include violations or attempted violations of Articles 120, 120(a), 120(b), 120(c) or 125.) This provision apparently takes effect immediately. Section 1705 amends Article 56 to include trial by general court-martial and mandatory dishonorable discharge or dismissal for violation of Article 120(a) or (b) and for forcible sodomy under Article 125, as well as attempts to commit these offense. These amendments are to take effect 180 days after enactment of the NDAA for offenses committed on or after that date. Section 1706 amends Article 60 to allow victims of offenses an opportunity to submit matters for consideration by the convening authority in clemency proceedings, and to limit the convening authority’s consideration of victims’ character unless such matters were allowed as evidence at trial. Section 1707 repeals consensual sodomy as an offense, changing Article 125 to include only forcible sodomy and bestiality. Section 1708 modifies the discussion section of Rule 306 of the Manual for Courts-Martial to eliminate the character and military service of an accused from the matters a commander should consider in his or her initial decision on disposition of an offense. The Rule itself is not altered. This change is to take effect no later than 180 days after the NDAA’s enactment. Section 1709 requires promulgation of regulations prohibiting retaliation against an alleged victim or another for reporting a criminal offense, making retaliation a violation of Article 92. Here, retaliation is defined to include:

  • “taking or threatening to take an adverse personnel action, or withholding or threatening to withhold a favorable personnel action…because the member reported a criminal offense; and
  • “ostracism and such acts of maltreatment as designated by the Secretary of Defense, committed by peers of a member of the Armed Forces or by other persons because the member reported a criminal offense.”

Implementing regulations are to be promulgated no later than 120 days after enactment of the NDAA. This section also requires that the Secretary of Defense submit a report within 180 days of the NDAA’s enactment setting out recommendations on whether or not retaliation should be the subject of a new punitive article of the UCMJ. Section 1711 adds a new section 657 to chapter 37 of Title 10, prohibiting enlistment or commissioning of persons for rape or sexual assault, forcible sodomy, incest, and attempts at these offenses. (This repeals a similar section in the 2013 NDAA.) Section 1712 changes 10 U.S.C. § 673(b) to include the Coast Guard in regulations on requests for transfers by victims of sexual assault. Section 1713 would add a new 10 U.S.C. § 674, “temporary administrative reassignment or removal of a member on active duty accused of committing a sexual assault or related offense.” Under DoD and service guidance, commanders would have authority to temporarily reassign or remove members accused of offenses under Articles 120, 120(a), 120(b), 120(c) or 125 or attempts at these offenses. The section notes that transfers would not be a punitive measure, but rather have the purpose of maintaining good order and discipline. Section 1714 amends 10 U.S.C. § 1034, the Military Whistleblower Protection Act, in several places. It now covers individuals who are “being perceived as making or preparing” a complaint, as well as those who make or prepare to make complaints. Complaints of wrongdoing, etc., made in court-martial proceedings are now covered under the Act. This will include “testimony, or otherwise participating in or assisting in an investigation or proceeding related to” a covered communication. The definition of reprisals is expanded to include “making or threatening to make a significant change in the duties or responsibilities of a member of the armed forces not commensurate with the member’s grade.” Communications will not be excluded from protection because the information had previously been disclosed, the communication was not made in writing or while on duty, or because of the member’s motive in making the disclosure, nor if the member reasonably thought that the person to whom the disclosure was made was participating in a covered activity (for instance, participating in an investigation). The time to submit complaints of violation of the Act is changed from 60 days to one year. The section also includes action to be taken by the service Secretary on receipt of an IG investigation, including disciplinary action against the person responsible for the reprisal. Finally, the possibility of a Board for Correction of Military Records evidentiary hearing for a victim of reprisals is to be available when it would benefit the victim, not only when the case is unusually complex. Section 1715 also amends 10 U.S.C. § 1034, to add complaints of “rape, sexual assault or other sexual misconduct” in violation of Articles 120 through 120(c) to the section protecting complaints about sexual harassment. Section 1716 provides for Special Victims’ Counsel (SVC) for victims of sex-related offenses who are eligible for legal assistance under 10 U.S.C. § 1044. Victims of sex-related offenses will be entitled to the assistance of JAG counsel whether their reports are restricted (confidential) or unrestricted. In addition to consultation about sexual assault policy, the potential for civil litigation against other parties (other than the DoD), and the like, this assistance includes consultation on potential criminal liability of the victim for collateral misconduct. SVCs will also accompany victims to any proceedings regarding reporting, investigation and prosecution of the offense. The section makes it clear that this is an attorney-client relationship. Victims will be offered the option of SVC assistance when they make a report or seek assistance from a Sexual Assault Response Coordinator, Victim Advocate, military criminal investigator, victim/witness liaison, trial counsel, health care provider and any others designated by the service secretary. Declining the help of an SVC does not preclude subsequent requests for such assistance. For this section, sex-related offenses include those under Articles 120, 120(a), 120(b), 120(c) or 125, as well as attempts. Section 1721 requires the service Secretaries to track commanding officers’ compliance in conducting climate assessments as required by 10 U.S.C. § 1561, subsection (a)(3). Section 1722 requires the Independent Panel on Assessment of Military Response Systems to Sexual Assault to submit a report in 12, rather than 18, months. Section 1723 mandates retention of restricted sexual assault reports for 50 years or the length of time required to save unrestricted reports; formerly, these were kept only at the request of victims. Section 1724 requires the services to ensure timely access to Sexual Assault Response Coordinators for members of the reserve and guard who are assaulted during performance of duties or assaulted by a member of the guard or reserves. Section 1725 deals with qualifications and selection of sexual assault prevention and response personnel, and requires reports on their training, qualification and experience. It also requires the assignment of sexual assault nurse examiners at military medical facilities with full-time emergency departments, and the availability of nurse examiners to victims treated at facilities lacking full-time emergency departments. The Secretary of Defense is to prepare a report on the training and certification of personnel no later than 120 days from enactment of the NDAA. Section 1726 gives the DoD Sexual Assault Prevention and Response Office additional duties, including data collection with metrics to measure effectiveness of and compliance with training objectives, serving as a liaison between DoD and other federal and state agencies on sexual assault prevention and response, and overseeing development of strategic program guidance and making recommendations on modifications to policy, law and regulations for resources in support of the SAPR program. Section 1731 gives additional responsibilities to the previously-established DoD “response system panel” to assess the impact of removing UCMJ disposition authority from the chain of command; to assess whether SVC’s role should be expanded to include legal standing to represent victims during investigation and disciplinary proceedings in connection with the prosecution of the offense; to assess the feasibility and appropriateness of extending to victims of UCMJ crimes the right afforded a civilian crime victim under 18 U.S.C. § 3771; to evaluate the means by which names and identifying information of offenders collected in restricted reports could be compiled into a protected database available only to military criminal investigators, SARCs, etc., to identify individuals who are multiple offenders; to examine the military and civilian clemency systems, including whether clemency could be reserved until the completion of military appeals; to assess whether DoD should publish a formal statement of “what accountability, rights and responsibilities a member of the Armed Forces has with regard to matters of sexual assault prevention and response.” Under the same section, DoD’s “judicial proceedings panel” is to assess

  • the likely consequences of amending Article 120 to cover commission of a sexual act upon another “by abusing one’s position in the chain of command of the other person to gain access to or coerce the other person;”
  • 10 U.S.C. § 1044e and recommend any appropriate modifications;
  • the implementation and effect of mandatory minimum sentences under Article 56b of the UCMJ as added by section 1705 of the Act, and consider the appropriateness of mandated minimum sentences for other offenses; and
  • the adequacy of provisions for compensation and restitution of victims of UCMJ offenses and make recommendations on providing forfeited wages of incarcerated offenders to victims as compensation.

Section 1732 calls for a review of the criminal investigative services’ practices in responding to UCMJ offenses, including the extent to which they make recommendations as to whether offenses are founded or unfounded. Following this review, which is to be done no later than 180 days after enactment of the NDAA, DoD is to develop a uniform policy for the investigative services, in which it will consider the feasibility of using case determinations (such as the uniform crime report) used by civilian law enforcement agencies. Section 1733 requires that the Secretary of Defense review the adequacy of training on sexual assault prevention and response, with a report of the review to be made no later than 120 days after enactment. The review will identify common core elements to be included in all training and recommend other appropriate modifications for training. Section 1734 requires a review of the progress made in developing comprehensive policy on retention of and access to sexual assault evidence and records (as required by section 586 of the 2012 NDAA), and a report back to the Committees on Armed Services no later than 180 days after the NDAA’s enactment. Section 1735 mandates review of the Office of Diversity Management and Equal Opportunity to determine whether sexual harassment cases should be evaluated or addressed within this office; evaluate how DMEO works with SAPRO to address harassment; identify any resource and personnel gaps in DMEO that affect this work; and assess its capability to track incidents of sexual harassment. Section 1741 provides enhanced protection for prospective and new members of the military during entry-level processing and training. This section addresses both recruitment and initial training. The service secretaries are to develop policies that define and proscribe inappropriate and prohibited relationships, communication, conduct or contact (including consensual actions) between service members “who exercise authority or control over, or supervise” prospective members and members in entry-level processing or training. The section specifically mentions recruiting personnel, MEPS personnel, and members working at entry-level training facilities. Violators will be subject to disciplinary action, and to administrative separation processing in response to the first substantiated violation of this policy, if the member is not punitively discharged. Separation will be based on the full facts of the case, not merely a court-martial conviction. Substantiated violations are defined as those with court-martial convictions or imposition of nonjudicial punishment. Implementing regulations are to be published no later than 180 days after enactment of the NDAA. The Secretary of Defense will also prepare a report containing his recommendations regarding the need to create a UCMJ article for violations of this policy. Section 1742 requires commanders who receive a report of a sex-related offense in their chain of command to act immediately by referring the report to the military criminal investigative organization for that service. Section 1743 requires preparation of eight-day incident reports in response to unrestricted reports of sexual assault, to be provided to the installation commander, if appropriate, the first officer in the grade of 0-6 and the first general or flag officer in the victim’s and alleged offender’s chains of command. The reports must detail action that has been or is being taken on the case to provide the victim support, refer the case to the appropriate investigative service and provide initial notification of a serious incident, if that has not already been done. Implementing regulations are to be promulgated within 180 days of enactment of the NDAA. Section 1744 mandates review of decisions not to refer charges to court-martial in sex-related offenses, with review policies set out by the secretaries of the services. The policies are to include requirements that consideration be given to the victim’s statement provided during the criminal investigation, and that determinations be made as to whether the victim’s statement and views concerning disposition of the offense were considered by the convening authority in making the referral decision. For this section, sex-related offenses include Article 120(a) or (b), forcible sodomy under Article 125, and attempts to commit those offenses. The section also provides that, in any case where a staff judge advocate recommends that charges of a sex-related offense be referred to court-martial and the convening authority declines to do so, the convening authority will forward the case file to the service secretary for review. Where staff judge advocates recommend against referral, and the convening authority concurs, the case file will be reviewed by the next superior commander with general court-martial convening authority. The case file will specifically include the victim’s statements, such as statements to the chain of command and to the convening authority; a written statement explaining the convening authority’s reasons; and a certification that the victim was informed of the convening authority’s decision. The victim will be notified of the results of such review. Section 1745 requires that, when members are convicted at court-martial or receive nonjudicial punishment for a sex-related offense, a notation to that effect will be placed in their service record, regardless of rank, to reduce the likelihood that repeat offenders will escape notice by subsequent commands. Commanders will be required to review files for such notations upon members’ transfer or permanent assignment. Members will have the right to challenge such entries. Section 1746 focuses on prevention of sexual assault at military academies, requiring that a section on assault be included in the curriculum section dealing with honor, respect and character development. This training will include the history of the problem of sexual assault, reporting procedures, victims’ rights, mandatory punitive discharge or dismissal, etc., and must be provided within two weeks of recruits’ arrival at the academies. Section 1747 requires that members completing Standard Form 86 of the Questionnaire for National Security Position be notified that they may answer “no” to the question about consulting a health care provider if they are victims of sexual assault and the consultation “occurred with respect to an emotional or mental health condition strictly in relation to the sexual assault.” Section 1751 is a sense of Congress provision holding that commanding officers are responsible for command climates in which sexual assault allegations are properly managed and victims can report all criminal activity without fear of retaliation, “including ostracism and group pressure from other members of the command.” The section suggests that maintenance of such a command climate is a proper subject for evaluation in regular evaluation systems, and that failure to maintain this command climate can be an appropriate basis for relief from command. Section 1752 is another sense of Congress provision, that offenses under Articles 120(a) and (b), forcible sodomy under Article 125, and attempts to commit those offenses should be disposed of by court-martial rather than nonjudicial punishment. Where nonjudicial punishment or administrative action is used instead of court-martial, the disposition authority should include a justification for the action in the case file. Section 1753 states that it is the sense of Congress that discharges in lieu of court-martial should be “exceedingly sparing” in cases of rape, sexual assault, forcible sodomy or attempts at these offenses, and used only when the facts of the case clearly warrant such discharge. Victims should be consulted prior to determinations to discharge offenders in lieu of court-martial.  The section states that such discharges should be characterized as other than honorable. Û

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