II
113th CONGRESS
1st Session
S. 967
IN THE SENATE OF THE UNITED STATES
May 16, 2013
Mrs. Gillibrand (for herself, Mrs. Boxer, Ms. Collins, Mr. Blumenthal, Mr. Begich, Ms. Mikulski, Mr. Franken, Mr. Coons, Ms. Hirono, Mr. Johanns, Mrs. Shaheen, Mr. Pryor, Mr. Schatz, Mr. Rockefeller, Mr. Grassley, and Mrs. Feinstein) introduced the following bill; which was read twice and referred to the Committee on Armed Services
A BILL
To amend title 10, United States Code, to modify various authorities relating to procedures for courts-martial under the Uniform Code of Military Justice, and for other purposes.
Short title
This Act may be cited as the
Military Justice Improvement Act of
2013
.
Modification of authority to determine to proceed to trial by court-martial on charges on offenses with authorized maximum sentence of confinement of more than one year
Modification of authority
In general
With respect to charges under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that allege an offense, other than an offense specified in paragraph (2), that is triable by court-martial under that chapter for which the maximum punishment authorized under that chapter includes confinement for more than one year, the Secretary of Defense shall require the Secretaries of the military departments to provide for the determination under section 830(b) of such chapter (article 30(b) of the Uniform Code of Military Justice) on whether to try such charges by court-martial as provided in paragraph (3).
Excluded offenses
Paragraph (1) does not apply to an offense as follows:
An offense under sections 883 through 891 of title 10, United States Code (articles 83 through 91 of the Uniform Code of Military Justice).
An offense under sections 893 through 917 of title 10, United States Code (articles 93 through 117 of the Uniform Code of Military Justice).
An offense under section 933 of title 10, United States Code (article 133 of the Uniform Code of Military Justice).
Requirements and limitations
The disposition of charges pursuant to paragraph (1) shall be subject to the following:
The determination whether to try such charges by court-martial shall be made by a commissioned officer of the Armed Forces designated in accordance with regulations prescribed for purposes of this subsection from among commissioned officers of the Armed Forces in grade O–6 or higher who—
are available for detail as trial counsel under section 827 of title 10, United States Code (article 27 of the Uniform Code of Military Justice);
have significant experience in trials by general or special court-martial; and
are outside the chain of command of the member subject to such charges.
Upon a determination under subparagraph (A) to try such charges by court-martial, the officer making that determination shall determine whether to try such charges by a general court-martial convened under section 822 of title 10, United States Code (article 22 of the Uniform Code of Military Justice), or a special court-martial convened under section 823 of title 10, United States Code (article 23 of the Uniform Code of Military Justice).
The determination to try such charges by court-martial under subparagraph (A), and by type of court-martial under subparagraph (B), shall be binding on any applicable convening authority for a trial by court-martial on such charges.
The actions of an officer described in subparagraph (A) in determining under that subparagraph whether or not to try charges by court-martial shall be free of unlawful or unauthorized influence or coercion.
The determination under subparagraph (A) not to proceed to trial of such charges by general or special court-martial shall not operate to terminate or otherwise alter the authority of commanding officers to refer such charges for trial by summary court-martial convened under section 824 of title 10, United States Code (article 24 of the Uniform Code of Military Justice), or to impose non-judicial punishment in connection with the conduct covered by such charges as authorized by section 815 of title 10, United States Code (article 15 of the Uniform Code of Military Justice).
Construction with charges on other offenses
Nothing in this subsection shall be construed to alter or affect the disposition of charges under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that allege an offense triable by court-martial under that chapter for which the maximum punishment authorized under that chapter includes confinement for one year or less.
Policies and procedures of the military departments
In general
The Secretaries of the military departments shall revise policies and procedures as necessary to comply with this subsection.
Uniformity
The General Counsel of the Department of Defense shall review the policies and procedures revised under this paragraph in order to ensure that any lack of uniformity in policies and procedures, as so revised, among the military departments does not render unconstitutional any policy or procedure, as so revised.
Manual for Courts-Martial
The Secretary of Defense shall recommend such changes to the Manual for Courts-Martial as are necessary to ensure compliance with this subsection.
Report
Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall, in consultation with the Secretaries of the military departments, submit to Congress a report on the revisions of policies and procedures necessary to comply with subsection (a). The report shall include such recommendations for modifications to chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), and the Manual for Courts-Martial as the Secretary of Defense considers appropriate for that purpose.
Effective date and applicability
Subsection (a), and the revisions required by that subsection, shall take effect on the date that is 180 days after the date of the enactment of this Act, and shall apply with respect to charges preferred under section 830 of title 10, United States Code (article 30 of the Uniform Code of Military Justice), on or after such effective date.
Modification of Manual for Courts-Martial to eliminate factor relating to character and military service of the accused in rule on initial disposition of offenses
Not later than 180 days after the date of the enactment of this Act, Rule 306 of the Manual for Courts-Martial (relating to policy on initial disposition of offenses) shall be amended to strike the character and military service of the accused from the factors to be considered by the disposition authority in disposing of charges.
Modification of officers authorized to convene general and special courts-martial
In general
Subsection (a) of section 822 of title 10, United States Code (article 22 of the Uniform Code of Military Justice), is amended—
by striking paragraphs (5) through (8);
by inserting after paragraph (4) the following new paragraph (5):
the officers in the offices established pursuant to section 4(c) of the Military Justice Improvement Act of 2013 or officers in the rank of O–6 or higher who are assigned such responsibility by the Chief of Staff of the Army, the Chief of Naval Operations, the Chief of Staff of the Air Force, or the Commandant of the Marine Corps; or
; and
by redesignating paragraph (9) as paragraph (6).
No exercise by officers in chain of command of accused or victim
Such section (article) is further amended by adding at the end the following new subsection:
An officer specified in subsection (a)(5) may not convene a court-martial under this section if the person is in the chain of command of the accused or the victim.
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Offices of Chiefs of Staff on courts-Martial
Offices required
Each Chief of Staff of the Armed Forces specified in paragraph (5) of section 822(a) of title 10, United States Code (article 22(a) of the Uniform Code of Military Justice), as amended by subsection (a), shall establish an office to do the following:
To convene general and special courts-martial under sections 822 and 823 of title 10, United States Code (articles 22 and 23 of the Uniform Code of Military Justice), pursuant to paragraph (5) of section 822(a) of title 10, United States Code (article 22(a) of the Uniform Code of Military Justice), as so amended.
To detail under section 826 of title 10, United States Code (article 26 of the Uniform Code of Military Justice), judges of courts-martial convened as described in subparagraph (A).
To detail under section 827 of title 10, United States Code (article 26 of the Uniform Code of Military Justice), members of courts-martial convened as described in subparagraph (A).
Personnel
The personnel of each office established under paragraph (1) shall consist of such members of the Armed Forces and civilian personnel of the Department of Defense as may be detailed or assigned to the office by the Chief of Staff concerned.
Deadline for military judge to call general and special courts-martial into session
In the case of trial by general or special court-martial of charges on an offense determined under section 2(a)(1) to be tried by such court-martial under 47 of title 10, United States Code (the Uniform Code of Military Justice), the military judge shall call the court into session pursuant to section 839 of title 10, United States Code (article 39 of the Uniform Code of Military Justice), not later than 90 days after the date on which the authority determines to try such charges by court-martial.
Modification of authorities and responsibilities of convening authorities in taking actions on the findings and sentences of courts-martial
Inclusion of written justification for certain actions on sentences
Paragraph
(2) of section 860(c) of title 10, United States Code (article 60(c) of the
Uniform Code of Military Justice), is amended by adding at the end the
following new sentence: In taking such an action (other than an action
to approve a sentence), the convening authority or other person taking such
action shall prepare a written justification of such action, which written
justification shall be made a part of the record of the
court-martial.
.
Prohibition on dismissal of finding or change to finding of guilty of lesser included offense
Such section (such article) is further amended—
in paragraph (3), by striking the second sentence; and
by adding at the end the following new paragraph:
If a convening authority or other person acts on the findings of a court-martial, the convening authority or other person may not—
dismiss any charge or specification by setting aside a finding of guilty thereto; or
change a finding of guilty to a charge or specification to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification.
.
Effective date
The amendments made by this section shall take effect on the date of the enactment of this Act, and shall apply with respect to findings and sentences of courts-martial reported to convening authorities under section 860 of title 10, United States Code (article 60 of the Uniform Code of Military Justice), as so amended, on or after such effective date.
Command action on reports on sexual offenses involving members of the Armed Forces
Immediate action required
A commanding officer who receives a report of a sexual-related offense involving a member of the Armed Forces in the chain of command of such officer shall act upon the report in accordance with subsection (b) immediately after receipt of the report by the commanding officer.
Action required
The action required by this subsection with respect to a report described in subsection (a) is the referral of the report to the criminal investigation office with responsibility for investigating that offense of the military department concerned or such other investigation service of the military department concerned as the Secretary of the military department concerned may specify for purposes of this section.
Monitoring and assessment of modification of authorities on courts-martial by independent panel on review and assessment of proceedings under the Uniform Code of Military Justice
Section 576(d)(2) of the National Defense Authorization Act for Fiscal Year 2013 ( Public Law 112–239 ; 126 Stat. 1762) is amended—
by redesignating subparagraph (J) as subparagraph (K); and
by inserting after subparagraph (I) the following new subparagraph (J):
Monitor and assess the implementation and efficacy of the Military Justice Improvement Act of 2013, and the amendments made by that Act.
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