Major Changes to the Military Justice System Arrive with the New Year

Major Changes to the Military Justice System Arrive with the New Year

Linda Strite Murnane, Colonel, USAF, Ret

As we closed 2021, and began the new year, the National Defense Authorization Act brought sweeping and dramatic changes to the Uniform Code of Military Justice (UCMJ).

Additionally, the Military and Veteran Judges Committee of the National Association updated its mission statement as the new NAWJ year began.

Among the goals the Committee hopes to accomplish this year, our members want to share information about the unique features of military justice, impacts on family members and the communities in which military members, veterans and their families reside.  Additionally the Committee is embracing spouses of military members, spouses of veterans as well as those members of the NAWJ who practice military or veteran law.

The UCMJ is codified in 10 United States Code, Chapter 47.  The provisions outline the process for addressing misconduct among members of the armed forces, including those on active duty, as well as retirees in specified circumstances.  Additionally, the conduct of members of the Guard and the Reserve may, under specified circumstances, be subject to the provisions of the UCMJ.

Changes have been in discussion for several years particularly focusing on the rights of victims and with respect to offenses related to sexual assault and racism.  Extremism is also addressed in the revisions which were included in the Fiscal Year 2022 National Defense Authorization Act.

Among the most dramatic modifications, commanders will no longer make the decision whether to proceed to trial in cases involving special victim crimes.  An Office of the Special Victim Prosecutor will be established in each branch of the military.  The Special Victim Prosecutor will report directly to the Service Secretary for their military branch.

Special victim offenses will include sexual assault, sexual harassment and all offenses against a child under the age of 18, among other offenses.

While the Special Victim Prosecutor will determine whether an offense will go to trial, military commanders are empowered to issue protective orders under the provisions of 10 U.S.C. 1567.

In a further major change to the court-martial process, the modification to the UCMJ modifies the sentencing process.  Under the UCMJ, a member facing court-martial could, in most cases, choose to have their case tried before a military judge sitting alone, or before a panel of members, comprised of officers, and, in the case of an enlisted person accused of an offense, enlisted members at the request of the defendant.

The accused who chose to have their case tried before a panel would have both their guilt or innocence, as well as their sentence decided by the panel.

The NDAA establishes judge-alone sentencing and establishes sentencing guidelines.  The change to judge alone sentencing is intended to increase fairness within the military justice system.

Survivors of sexual assault are entitled under the revisions to the UCMJ to be informed of the outcomes of administrative resolutions of allegations against a servicemember.  In addition to the court-martial process, military members may be subjected to administrative separation, discharge in lieu of a trial, or nonjudicial punishment.  Additionally military members may be subject to demotion, grade determinations resulting in a reduction in grade , promotion delays, reprimands or censure.  The NDAA revisions now direct the military to notify survivors of sexual assault about the outcomes of the administrative actions taken against a perpetrator.

In other changes, the NDAA specifies offenses for sexual harassment and violent extremism.  The revisions also included the establishment of the Office of Countering Extremism.  That office is charged with training and education about extremist activities, as well as data collection, analysis and initiatives to counter extremism among and within the Department of Defense.  Individuals convicted of a felony hate crime may not enlist under the provisions in the NDAA, removing the authority to waive such a disqualifying offense to allow someone to join the military.

The NDAA also extends authority for the National Guard of the District of Columbia to the Mayor of the District of Columbia, providing the Mayor of the District of Columbia with the same authority as the governor of a state.

In addition to these dramatic changes to the Uniform Code of Military Justice, the 2022 NDAA includes provisions to address “family readiness”, including extension of parental leave to twelve weeks following the birth or adoption of a child.  The NDAA also establishes an Exceptional Family Member Program Advisory Council intended to provide improved support to those servicemembers who have special needs members in their family.

The NDAA included specific provisions addressing those who supported the US military during its presence in Afghanistan as well as addressing, in part, issues related to Guantanamo Bay.

For a more complete summary of the changes in the National Defense Authorization Act, you can view the summary at this link.