By | October 20, 2019

BY JAMES M. BRANUM

In this article, I will be providing a short summary of what I think are the most important changes of the historic 2019 revision of the UCMJ. This treatment will not be exhaustive but will instead serve as a starting point for further study, with a focus on those provisions that will be of most interest to defense lawyers. The changes will be discussed in the order that they are found in the UCMJ.1

UCMJ ARTICLE 2 – CLARITY ON WHEN A RESERVIST IS SUBJECT TO THE UCMJ

The changes to Article 2 help to clarify what had been a muddy issue: when does the UCMJ apply to a reservist?

The new article 2 states that reservists are subject to the UCMJ during the duration of not only their annual training but also during drill weekends, which includes not only their “on-duty” time but also time spent traveling on orders to and from drills and also time “off-duty” but during the drill weekend.

UCMJ ARTICLE 10 – PRETRIAL CONFINEMENT

The new version of this article clarifies that commanders wanting to place a military defendant in PTC (pre-trial confinement) must fulfill certain immediate steps at the time of arrest or confinement:

  1. Notify the defendant as to the specific offence that is alleged, and
  2. Try the defendant in a court-martial or release them from confinement.

This chapter does not provide a strict definition of what “immediate” means, but instead states that the President shall enact regulations to ensure the prompt forwarding of charges and specifications.2

The chapter also states that PTC is inappropriate for offenses that would normally be tried by a summary court-martial.

ARTICLE 15 – NO MORE BREAD AND WATER AS A PUNISHMENT

The old Naval Punishment of “bread and water” rations has been removed as a possible punishment in NJP (Non-Judicial punishment).

Unfortunately, the provision that allows for a servicemember to be later tried at a court-martial for the same offense that he or she was previously punished for, in an NJP action, is still in place.

  1. The 2019 Revised edition of the UCMJ can be found at:

https://jsc.defense.gov/Portals/99/Documents/Appendix%202%20-

%20Uniform%20Code%20of%20Military%20Justice.pdf?ver=2018-12-06-123439-990

It is also contained as an appendix in the 2019 version of the MCM (Manual for Courts-Martial)

  1. The changed regulatory guidance (in the Manual for Court-Martials, DOD regulations and branch-specific regulations will be examined in a future article.

UCMJ ARTICLE 16 (B)-(C) – SIZE OF JURY PANELS IS CODIFIED Under the 2019 UCMJ, the size of jury panels is as follows:

Court-Martial Type Size of Jury Panel Number required to convict[1]
General (capital) 12[2] Unanimous for the death penalty, 9 for lesser punishments.
General, non-capital 8 6
General, no panel Judge alone n/a – judge alone
Special CM (not bench) 4 3
Special CM (bench) Judge alone n/a – Judge alone
Summary CM No panel or jury, only a hearing officer n/a – hearing officer alone

UCMJ ARTICLE 16 (C)(2)(A) AND UCMJ ARTICLE 19 (B) – SPECIAL COURT-MARTIAL BENCH TRIAL

This provision is one of the most innovative of the UCMJ changes, in that it has created a new type of court-martial, what some are calling a “Special Court-Martial Bench Trial.” This new method of court martial is held in front of a judge alone (with no panel members present) but has a sentence cap of: (1) no more than six months of confinement, (2) no more than six months of pay forfeiture, and (3) no power to give a punitive discharge.

In many ways, the SPCM bench trial process seems like a hybrid between a summary court-martial (with its very low sentence caps and no discharge as a punishment, but few procedural protections) and a traditional special court-martial (with higher potential punishments but more procedural protections). However, unlike the Summary Court-Martial, the SPCM bench trial does count as a federal criminal conviction. Also, the SPCM bench trial cannot be declined by the defendant.

UCMJ ARTICLE 32 – CHANGES TO PRELIMINARY HEARINGS

Article 32 hearings have a bigger role to play under the new UCMJ, as the hearing officer is now required to issue a detailed report immediately after the hearing is complete. Defendants and alleged victims also now have a right to submit to the convening authority anything that is seen as relevant after a preliminary hearing is held.

UCMJ ARTICLE 53A – CHANGES TO PRE TRIAL AGREEMENTS

Under the previous version of the UCMJ, PTA’s (pre-trial agreements, aka “plea deals”) often set a maximum cap on a potential sentence that could be given by a judge. Under the new UCMJ, PTA’s can also include minimum sentences (such as “no sentence shall be adjudged that will provide less than six months of confinement”).

UCMJ ARTICLE 93A – ENHANCED PROTECTIONS OF MILITARY RECRUITS AND TRAINEES

This new article in the UCMJ is one of several articles that creates a new offense, instead of being covered under a more general provision (such as article 92, failure to obey a regulation”). The offense is designed to protect servicemembers from being preyed upon by recruiters, drill sergeants or other individuals in “positions of special trust,” which effectively puts this situation in the territory of being somewhat akin to statutory rape, in which the consent (or lack thereof) by the protected party is irrelevant, given the coercive power structure in place.

Of course, the test of this article will be whether it will actually be enforced or whether its enforcement will be selective in nature.

UCMJ ARTICLE 120 – RAPE AND SEXUAL ASSAULT

Article 120 has been rewritten, most notably in establishing that in “mistake of age” cases, the defense only exists if the defendant could not have known the victim’s age.[3]

UCMJ ARTICLE 121A – FRAUDULENT USE OF CREDIT/DEBIT CARDS, ETC.

Article 121a is another new provision in the UCMJ, designed to ensure that conduct previously (and sometimes ambiguously) covered under more general provisions, is specifically and clearly prohibited. The article bars the fraudulent use of credit cards, debit cards and other similar mechanisms (presumably to cover future changes in technology such as cell phone payment apps, etc.), with the essential element now being the intent to defraud rather than being successful in stealing from the government.

The penalties for these offenses (found in the Punitive articles section of the MCM, in section IV) have also been significantly increased with a maximum penalty of 15 years of confinement if the theft is over $1,000.

From a defense perspective, I am deeply troubled by the level of penalty for what is a low threshold, which will likely lead to much higher military prison populations.

UCMJ ARTICLE 123 -COMPUTER RELATED CRIMES

This is another new UCMJ article that intends to define in the UCMJ an offense that was previously covered by the general (and often ambiguous) articles. Offenses include unauthorized use to obtain classified or sensitive information, as well as uploading a virus or other program that with the intent to damage a network.

The most concerning aspect of this article (as it is implemented under the punitive articles section of the MCM), is that a servicemember who wrongfully accesses classified information (such as evidence of war crimes committed by US troops) could face five years in prison while a servicemember who actually distributes such information (even if to a reporter) could face up to ten years of confinement. The consequences of whistleblowing are much more dire under the new UCMJ.

UCMJ ARTICLE 128 – ASSAULT

Some of the changes in this article include a broadening of “aggravated assault” to include more types of harms (including domestic violence), but also to use a more inclusive definition of the term “dangerous weapon.” Under the new definition, a dangerous weapon no longer must be likely to produce death or grievous bodily harm, but rather must only be capable of producing such harm, which means (according to the comments on the Article in the punitive articles section of the MCM) that even one’s own body might be considered to be a dangerous weapon in some circumstances.

UCMJ ARTICLE 128 B – DOMESTIC VIOLENCE

This is a new provision of the UCMJ, which unfortunately does not yet have explanatory commentary or discussion in the MCM’s punitive article section.[4]

UCM ARTICLE 129 – BURGLARY AND UNLAWFUL ENTERING

This provision no longer refers to “housebreaking” but rather uses a broader definition of burglary that no longer requires that the building in question to be a “dwelling” or requires that the wrongful entering must happen at night.

Please note that the numbering of this article has been changed (previously found under Article 130).

ARTICLE 130 – STALKING

Another of the renumbered articles, this article has been expanded to include all forms of cyberstalking.

ARTICLE 132- A BAN ON RETALIATION

This is a new article in the UCMJ, which if properly enforced, has the power to radically change the culture of the military. Under this article, a servicemember can be punished for misusing their authority to retaliate against a person for making a complaint or reporting a crime. Such misuse of authority can include not only more aggressive actions, but also actions such as giving a whistleblower unnecessary “corrective training” or taking an adverse personnel action against a whistleblower.

Also, notably, it is now illegal to discourage someone from making a complaint or reporting a crime.

Being a cynic, I don’t think that NCO’s will quit telling their lower enlisted underlings to “keep it in the house,” but I do think that blatant retaliation may become less common, assuming that commanders and prosecution JAGs take this article seriously. The challenge will be in proving retaliatory intent.

I do see significant opportunities to use Article 132 as grounds for complaints under UCMJ Article 138, which might help to persuade recalcitrant convening authorities to pursue charges against abusive commanders and NCOs.

ARTICLE 134 – GENERAL/CATCH-ALL PROVISION

The general “catch-all” provision has been significantly narrowed in scope, with many offenses previously prosecuted now being addressed by separate UCMJ provisions, including:

  • Assault with intent to commit specific offenses, see Article 128c.
  • Breaking medical quarantine, see Article 84.
  • Bribery and graft, see Article 124a and 124b.
  • Burning (property) with intent to defraud, see Article 126c.
  • Child endangerment, see Article 119b.
  • Communicating threats, see Article 115.
  • Drinking liquor with a prisoner, see Article 96b.
  • Fleeing the scene of an accident, see Article 111.
  • Impersonating an officer, warrant officer, NCO, agent or official, see Article 106.
  • Kidnapping, see Article 125.
  • Obstructing justice, see Article 131b.
  • Wearing unauthorized uniform items, see Article 106a.
  • Willfully discharging a firearm to endanger a human life,[5] see Article 114b.

Unfortunately, the interpretive language for Article 134 (found in the Manual for Courts-Martial Part IV – Punitive Articles) continues to go far beyond the statutory language found in the actual UCMJ article. It continues to treat certain acts (which in many cases are not criminal in a civilian context) as being crimes under Article 134, most notably the rewritten adultery provision (now called

“extramarital sexual conduct”) which now prohibits not only vaginal sexual intercourse, but also anal and oral sex. With regards to extra-marital sexual conduct, the new revisions have added a defense to this offense for servicemembers who are legally separated from their spouse.[6]

The following chart will help to unpack this provision:

Martial Status of Sexual Partner #1 Marital Status of Sexual Partner #2 Is it a crime for these two people to have sex while in the military?
Married to someone else and living with them Not married Yes
Married to someone else but not living with them, but also not legally separated Not Married Yes
Married to someone else but legally separated from spouse Not Married No
Married to someone else but legally separated from spouse Married but not legally separated Yes

Article 134 also was clarified to conform with the Military Extraterritorial Act, which serves to punish servicemembers for non-capital violations of the UCMJ that are committed outside the United States.

OTHER CHANGES, REFERENCED BY THE UCMJ BUT FOUND IN THE RCM (RULES FOR COURTMARTIAL)

RCM 1106 – POST-TRIAL MATTERS SUBMITTED BY THE DEFENDANT

Another renumbered provision (previously this was found at RCM 1105), the right of the defendant to present matters to the convening authority after trial has been preserved but with some changes. Most importantly, it allows a defendant to submit written matters for consideration very quickly (within 10 days for general CM, 7 days for a special CM) rather than having to wait for the final record of trial to be complete (which at many posts took 4-6 months).

RCM 1106A – POST-TRIAL MATTERS SUBMITTED BY A CRIME VICTIM

This new provision allows for crime victims (defined as “an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilty”) or their legal representative to submit post-trial matters alongside those of the defendant. Defendants can submit matters in rebuttal to matters submitted by the crime victim, but victims do not have the right to rebut post-trial matters submitted by the defendant.

CONCLUSION

The above discussion is a starting point for future study, as I have not dealt with some of the changes in the UCMJ including new provisions for investigative subpoenas, new provisions banning “revenge porn” and the wearing of medals that one hasn’t been awarded, changes to the legal BAC (blood alcohol concentration) to be universally .08, and multiple provisions allowing for an expanded role for alleged victims in a court-martial.

Judging the merits of the 2019 UCMJ revision is difficult at this moment, as many offenses being currently tried are for crimes that are alleged to have been committed prior to the adoption of the current UCMJ. At first glance, defense counsel have many things to be happy about including the higher number of panel members required for a conviction, a faster post-trial process, and Article 132’s ban on retaliation.

However, there is plenty to be concerned about as well, including the expanded role for alleged victims, the redefinition of adultery to include more kinds of sexual practices, and the continuation of the use of general/catch-all provisions to make certain kinds of conduct criminal (by way of interpretative commentary in the MCM) rather than in clear Congressionally approved statutory language.

And lastly – I cannot help but complain about the excessive renumbering of provisions in the UCMJ and MCM, which will lead to confusion for years to come.

SOURCES

Sources used for the preparation of this guide:

  • Changes To UCMJ Effective 1 January 2019:

www.law.unc.edu/documents/cle/festival/foll2019/S3-8Brooker.pdf

www.jordanucmjlaw.com/blog/2019/january/uniform-code-of-military-justice-updateseffecti/

James M. Branum has practiced military law as a civilian solo attorney since 2006. He is a member of the steering committee of the Military Law Task Force of the National Lawyers Guild and is currently serving as a minister of The Objector Church, a religious humanist interfaith community. He is based out of Oklahoma City and his website can be found at www.JMBranum.com.

  1. See UCMJ Article 52 (a)(3).
  2. The provision for capital cases is found at UCMJ Article 25a.
  3. The issue regarding mistake of age cases is discussed in this article

    https://www.militarytimes.com/news/your-army/2019/01/15/heres-what-you-need-to-know-about-thebiggest-update-to-ucmj-in-decades/

  4. UCMJ Article 128b can be found in appendix 3 of the MCM but is not at this time discussed in the Manual for Court-Martial “punitive articles” section in part IV of the manual. See Part IV-124 of the MCM.
  5. Obviously not including the human lives that the military wants its members to kill.
  6. The complexities of what is and is not a “legal separation” is found in state law. In many states a “legal separation” is as difficult to get as a traditional divorce.