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Practice Notes
New Year, New Laws
What the Military Justice Act’s Changes Will Mean for Judge Advocates
By Colonel Sara Root
On 23 December 2016,the President signed the National Defense Authorization Act for Fiscal Year 2017, which included numerous military justice changes contained in the Military Justice Act of 2016 (MJA16). On 1 March 2018, the President signed Executive Order 13825 prescribing implementing regulations, to include establishing the MJA16 effective date as 1 January 2019. Intended to strengthen the structure of the military justice system, the MJA16 represents the most significant changes to the Uniform Code of Military Justice (UCMJ) since the UCMJ was first enacted in 1950.
Why the changes? First, although amendments to our military justice system occur regularly, the last holistic review and reform of the UCMJ was in 1983. Second, over the past decade, Congress has initiated many of those changes, in part because of an increased public interest in aspects of our military justice system. Consequently, in August 2013, then-Chairman of the Joint Chiefs of Staff General Martin E. Dempsey recommended that the Secretary of Defense order a thorough review of the UCMJ to ensure it “effectively and efficiently achieves justice consistent with due process and good order and discipline.” In October 2013, Department of Defense Secretary Charles Hagel directed the Department of Defense General Counsel (DoD OGC) to review both the UCMJ and its implementation through the Manual for Courts-Martial. The Department of Defense’s Office of the General Counsel formed the Military Justice Review Group (MJRG) to complete this monumental task, and the MJRG provided Congress with a 1,300 page report including extensive recommendations in December 2015. Ultimately, Congress passed into law many but not all of the MJRG’s recommendations.
The major themes of the changes include implementing features of the civilian criminal justice system where appropriate, such as increased judicial authorities pre-referral, statutory authority for a more robust military magistrate program, a new misdemeanor-level court-martial intended for petty crimes, set panel sizes, and the authorization for minimum sentences in plea agreements. Additional themes include a modernization of punitive articles and increasing overall efficiency to include changes in post-trial processing. Provided below are summaries of some of the most significant MJA16 changes.
Increased Pre-Referral Judicial Authorities
Unlike our civilian counterparts, military judges are not involved in courts-martial until referral of charges. To increase both efficiency and the authority of military judges, the MJA16 provides statutory authority for judges to review matters prior to referral, to include requests for investigative subpoenas, pre-referral warrants or orders regarding electronic communications, and pre-referral matters referred by an appellate court. Article 46(e) permits judges to hear requests to quash or modify subpoenas or other process, and the National Defense Authorization Act 2018 permits judges to hear pre-referral matters under Article 6b(c) (appointment of individuals to assume rights for certain victims) and Article 6b(e) (victim writ of mandamus alleging violation of victim rights under Article 32 or Military Rules of Evidence 412, 513, 514 or 615).
A New Military Magistrate Program
The MJA16 provides authority to service secretaries to establish a more expansive military magistrate program. Military judges detailed under Article 30a may designate military magistrates to preside over pre-referral proceedings, except those regarding warrants and orders for electronic communications. Further, with the consent of both parties, the detailed military judge may designate a military magistrate to preside over the new judge–alone special court-martial. If the Army establishes such a program, magistrates will likely be field grade officers, will require judicial training, and may be assigned other duties of a non-judicial nature as prescribed by the service regulation.
From 10-12 April 2018, the Military Justice Legislation Training Team trained over 90 personnel at Ft. Knox, Kentucky from Cadet Command, Recruiting Command, Human Resources Command, the 1st TSC (two traveling all the way from Egypt), as well as TDS. Also in attendance were several Reserve Component personnel from the 84th Training Command and the 244th Expeditionary Combat Aviation Brigade, Kentucky National Guardsmen, and three Navy attorneys (Photo courtesy COL Sara Root).
New Judge-Alone Special Court-Martial
The MJA16 creates a new special court-martial consisting of a military judge alone. A punitive discharge is not authorized, and confinement and forfeiture of pay are limited to six months or less. Any UCMJ specification other than those under Articles 120(a) or (b), 120b(a) or (b), or attempts to commit such offenses may be referred to this forum. However, the accused may object to a specification being tried at this forum on two bases: (1) where, except for specifications alleging a violation of Article 112a, the maximum confinement per specification would be greater than two years if referred to a general court-martial (GCM), and (2) if the specification alleges an offense for which sex offender notification is required under Secretary of Defense regulations.
Plea Agreements
Currently called pre-trial agreements and implemented by the convening authority’s Article 60 powers, the MJA16 now provides statutory authority for plea agreements through Article 53a. There will no longer be two-part agreements, both the military judge and the panel will know the sentence limitations prior to sentencing. The most significant change in plea agreements is the authorization to contain a limit not only on a maximum punishment, but also on the minimum punishment, or both.
Restructured Punitive Articles
The MJA16 reorganized many of the punitive articles, and many forms of misconduct currently listed under Article 134 have been re-designated enumerated articles or made subparagraphs of already existing enumerated articles. Further, there are four new punitive articles: Article 93a—Prohibited activities with military recruit or trainee by person in position of special trust; Article 121a—Fraudulent use of credit cards, debit cards, and other access devices; Article 123—Offenses concerning Government computers; and Article 132—Retaliation.
Panels and Sentencing
To provide more consistency in the percentages required for convictions and sentences, the MJA16 fixes the number of panel members at twelve for a capital GCM, eight at a non-capital GCM, and four at a special court-martial. After challenges for cause, the military judge or his designee will assign members random numbers, and those with the lowest random numbers will be empaneled first to meet the fixed panel size. By default, the military judge will do all sentencing, unless the accused specifically elects to have the panel adjudge the sentence. The military judge will segment confinement and fines, but panels will continue to conduct unitary sentencing. Except for capital cases, three-fourths of the members must agree on findings and the sentence.
Streamlining Post-Trial Process
The new process requires the judge to enter into the record the statement of trial results, as well as the entry of judgment to mark the completion of the court-martial. Verbatim, written transcripts are still prepared when the sentence includes death, a dismissal or punitive discharge, or confinement for more than six months, however, the transcript is an attachment to the record of trial. Court reporters are required to certify the record of trial, and as per Army Regulation 27-10, military judges will review the certification of the record of trial.
Prepare
Overall, the MJA16 changes are positive and will strengthen our military justice system. The Army’s Military Justice Legislation Training Team is providing in-person training to all members of the Army Judge Advocate General’s Corps. To be ready for the 1 January 2019 implementation, every Staff Judge Advocate must also conduct regular unit training. Leaders should include all sections on an installation (TDS, SVC, LAO, ADLAW, Brigade and other subordinate legal offices, part-time military magistrates, Reserve Component and National Guard personnel, and law enforcement personnel) in the training. Not exhaustive, the following is a Top Ten list to help legal offices get started on MJA16 training:
- Check the MJA16 Milsuite site regularly, review the materials (especially Annex 2 and the Line In Line Out), ask questions, and share ideas. https://www.milsuite.mil/book/groups/jagconnect-mja16-mtt.
- Train your Command Teams! You can start using the Non-Binding Disposition Guidance now.
- Practice how counsel and law enforcement personnel will request investigative subpoenas and warrants and orders for electronic communications. Draft examples are available on the MJA Milsuite site.
- Develop a schedule to train on a few new changes to the punitive articles regularly.
- Create new court-martial convening orders. Discuss with the convening authority if he/she wants to include alternates, and if so, develop draft language to implement.
- Practice empanelment.
- Create new plea agreement templates and rehearse with them.
- Establish post-trial processing TTPs between judges, court reporters, post-trial personnel, the military justice section, and the leadership.
- Update practice and trial checklists. Review the draft AR 27-10.
- Understand how you will proceed with straddling cases for cases not referred by 31 December 2018. TAL
COL Root is the Chief of the Military Justice Legislation Training Team with the Criminal Law Division at the Office of The Judge Advocate General.