What is The Military Justice Improvement Act?

 In some cases, the commanding officer may even be the victim's attacker. This poses a severe conflict of interest because the attacker most likely will have no interest in conducting an investigation or subjecting himself to court martial.

The Military Justice Improvement Act was introduced in the U.S. Senate in 2013. If passed into law, it would significantly change the way the military tries its service members for criminal offenses. Specifically, it would require an officer outside of the alleged victim's chain of command to determine whether the accused should be court-martialed for certain serious crimes (such as sexual assault).

The following provides an overview on the current state of military justice, the changes the Military Justice Improvement Act proposes, and the current legislative status of the Act.

The Current State of Affairs

The military criminal justice system is governed by the Uniform Code of Military Justice (UCMJ). In twelve subchapters, it describes the entire criminal justice process from the apprehension of an accused service member to the appeal of her court-martial. Subchapter ten lists the various offenses that are punishable under the UCMJ.

After a service member commits an offense listed in subchapter ten, the crime must be reported to that service member's direct supervisor, or commanding officer (CO), who must then conduct an initial inquiry. Based on the results of the inquiry, the CO may decide to court-martial the offending service member, impose a formal non-judicial punishment, informally reprimand the service member, or do nothing at all.

This system can be particularly troublesome for victims of sexual assault. In order to see their attackers prosecuted, these victims must report the assault to their commanding officer, who is responsible for assigning duties, managing payment, and providing for the unit's welfare. Reporting such a sensitive and embarrassing crime may cause a commanding officer to unfairly penalize the victim.

Proposed Changes under the Military Justice Improvement Act

The Military Justice Improvement Act hopes to make it easier to prosecute serious crimes under the UCMJ by requiring an officer outside of the accused's chain of command (at the grade of O-6 or above) to determine whether to court-martial the accused. The proposed act will not apply to all punitive articles in subsection ten. Commanding officers will still determine whether to court-martial their subordinates for offenses carrying the maximum punishment of less than one year confinement, and offenses that uniquely pertain to the military, such as desertion and fraudulent enlistment.

Instead, only those offenses that most civilians would recognize from their own penal codes, such as murder, sexual assault, and battery, are subject to the Act's proposed changes. The Act would also remove the ability of a court-martial convening authority to dismiss or set aside a finding of guilt or reduce such a finding to a lesser included offense.

The text of the Act leaves many questions unanswered. It doesn’t provide a procedure for choosing an officer to make the court-martial determination, nor does it provide a method for reporting these crimes to someone other than the victim's commanding officer. Rather, the bill instructs the President to edit the Manual for Courts-Martial to include these procedures, and the Secretaries of the branches of the military to update their internal procedures accordingly.

Current Legislative Status of the Act

This Act did not make it out of committee in the 2013-2014 session of Congress and was not passed by either house. To become law, it must be reintroduced in a new session of Congress, pass both houses, and be signed by the President.

If you have questions about military law or are facing military law charges, you should consider speaking with a civilian attorney who specializes in military law.

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