The Bayonet

Thursday, Jan. 23, 2014

Congress passes legislation to change UCMJ

Editor’s note: The following is the second part of last week’s story on changes to UCMJ.

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WASHINGTON — The National Defense Authorization Act, passed last month, requires changes to the Uniform Code of Military Justice.

“These are the most changes to the Manual for Courts-Martial that we’ve seen since a full committee studied it decades ago,” said Lt. Col. John L. Kiel Jr., the Policy Branch chief at the Army’s Criminal Law Division in the Office of the Judge Advocate General.

Key provisions of the Uniform Code of Military Justice, known throughout the military as the UCMJ, that were rewritten under the National Defense Authorization Act for fiscal 2014, or NDAA14 — signed Dec. 26 by President Obama — are Articles 32, 60, 120 and 125.

ARTICLE 60 Modifications to Article 60 are to be phased in over the course of 12 months. Article 60 involves pre-trial agreements and actions by the convening authority in modifying or setting aside findings of a case or reducing sentencing. A convening authority could, in the past, do that, and some did, though rarely.

Changes to Article 60 were influenced last year by a case involving Air Force Lt. Col. James Wilkerson, a former inspector general convicted of aggravated sexual assault, Kiel said. The convening authority, Air Force Lt. Gen. Craig Franklin, overturned the findings of guilt.

“That got Congress stirred up,” Kiel said.

In NDAA14, legislators said the convening authority can no longer adjust any findings of guilt for felony offenses where the sentence is longer than six months or contains a discharge. They cannot change findings for any sex crime, irrespective of sentencing time.

One way a commander can still modify a sentence is “if the trial counsel comes forward and says ‘this particular accused was very helpful in securing evidence or cooperating with the government in prosecuting someone who was accused of committing an offense under the UCMJ.’ That is a trigger for the convening authority to be able to modify a sentence,” Kiel said.

The other way a convening authority can modify a sentence, even involving rape and sexual assault, is if a pre-trial agreement is in place, meaning that the case could close, but the pre-trial agreement would still take effect, he said.

Congress realized that Article 60 was still needed to continue the option for pre-trial agreements, he said. Had Article 60 been done away with altogether, that “would have likely meant all courts-martial would have gone to full contest and that would have bottlenecked the entire process.”

It also would have meant that all alleged victims of sexual assault would have likely had to testify if Article 60 were voided. “Sometimes victims supported the pre-trial agreement, supported the potential sentence and supported the fact that they didn’t have to testify — when it was in their best individual interest,” he said.

Prior to NDAA14, the convening authority could consider the military character of the accused, he said, in considering how to dispose of a case. Congress decided that should have no bearing on whether or not the accused has committed a sexual assault or other type of felony.

Also, previous to NDAA14, “sometimes the SJA would say ‘take the case to a general court-martial’ and the convening authority would disagree and say ‘I’m not going forward.’” Now, he said, “if the convening authority disagrees, the case has to go to the secretary of the service concerned (for the decision) to go forward or not.”

Additionally, in the case of an alleged rape or sexual assault where “the SJA and the convening authority say don’t go forward because there’s a lack of evidence or for whatever reason, that case has to go up to the next highest general court-martial convening authority and they will do an independent review,” Kiel said.

So if the case occurred, say at the division level in the Army, and a decision were made at that level not to go forward, then the division would need to take the victim’s statements, its own statements for declining the case, and forward them and the entire investigative file to the next level up — in this case, the corps.

If it’s decided to move forward, to avoid unlawful command influence, the case would be referred at the corps level instead of sending it back down to the division, he said.

ARTICLES 120 and 125

Under Articles 120 and 125 there are now mandatory minimum punishments. The minimum punishment for the Soldier convicted is dishonorable discharge for enlisted and dismissal for an officer, Kiel said.

Article 120 deals with rape and sexual assault upon adults or children and other sex crimes and Article 125 deals with forcible sodomy.

Now, the accused must appear before a general court-martial with no opportunity to be tried at a summary or special court-martial, Kiel said.

A summary court-martial is for relatively minor misconduct and a special court-martial is for an intermediate-level offense. Furthermore, Congress highly encouraged the services not to dispose of sexual assault cases with adverse administrative action or an Article 15, which involves non-judicial punishment usually reserved for minor disciplinary offenses, Kiel said.

Rather Congress has mandated that all sexual assault and rape cases be tried only by general courts-martial. And finally, prior to NDAA14, there was a five-year statute of limitations on rape and sexual assault on adults and children under Article 120 cases. Now, there’s no statute of limitations, he said.

Congress also repealed the offense of consensual sodomy under Article 125 in keeping with previous Supreme Court precedent, Kiel said. Congress barred anyone who has been convicted of rape, sexual assault, incest or forcible sodomy under state or federal law, from enlisting or being commissioned into military service.

Changes to the Manual for Courts-Martial should be signed by the president once it’s been reviewed by the services, the national security staff, Defense Department and other agencies, Kiel said. The updated manual would codify all the changes, although some are already in effect.

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