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H.R. 3209: Protecting Military Honor Act

The text of the bill below is as of Jul 12, 2017 (Introduced).

Source: GPO

I

115th CONGRESS

1st Session

H. R. 3209

IN THE HOUSE OF REPRESENTATIVES

July 12, 2017

(for herself and Ms. Tsongas) introduced the following bill; which was referred to the Committee on Armed Services

A BILL

To amend title 10, United States Code, to improve protections for a member of the Armed Forces who is a survivor of a sex-related offense during military service regarding the separation, or the characterization of any separation, of the member from the Armed Forces, to make additional changes to the authorities and procedures of boards for the correction of military records and discharge review boards, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Protecting Military Honor Act.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Confidential review of characterization of terms of discharge of members who are survivors of sex-related offenses.

Sec. 3. Authority for discharge review boards to refer certain applications for relief to the Physical Disability Board of Review.

Sec. 4. Public availability of information related to disposition of claims regarding discharge or release of members of the Armed Forces when the claims involve sex-related offenses.

Sec. 5. Training requirements.

Sec. 6. Other improvements to authorities and procedures for the correction of military records.

Sec. 7. Burdens of proof applicable to investigations and reviews related to protected communications of members of the Armed Forces and prohibited retaliatory actions.

Sec. 8. Administrative separation protections for members of the Armed Forces who are survivors of sex-related offenses.

Sec. 9. Department of Defense working group on administrative review boards.

2.

Confidential review of characterization of terms of discharge of members who are survivors of sex-related offenses

(a)

Codification of current confidential process

(1)

Codification

Chapter 79 of title 10, United States Code, is amended by inserting after section 1554a a new section 1554b consisting of—

(A)

a heading as follows:

1554b.

Confidential review of characterization of terms of discharge of members of the armed forces who are survivors of sex-related offenses

;

and
(B)

a text consisting of the text of section 547 of the National Defense Authorization Act for Fiscal Year 2015 (10 U.S.C. 1553 note, Public Law 113–291).

(2)

Clerical amendment

The table of sections at the beginning of chapter 79 of such title is amended by inserting after the item relating to section 1554a the following new item:

1554b. Confidential review of characterization of terms of discharge of members of the armed forces who are survivors of sex-related offenses.

.

(3)

Conforming repeal

Section 547 of the National Defense Authorization Act for Fiscal Year 2015 (10 U.S.C. 1553 note, Public Law 113–291) is repealed.

(b)

Clarification of applicability to individuals who allege sex-Related offenses during military service

Subsection (a) of section 1554b of title 10, United States Code, as added by subsection (a) of this section, is amended by striking sex-related offense and inserting the following: sex-related offense, or alleges that the individual was the survivor of a sex-related offense,.

(c)

Additional requirements for consideration of evidence

Subsection (b) of section 1554b of title 10, United States Code, as added by subsection (a) of this section, is amended—

(1)

by striking and at the end of paragraph (1);

(2)

by striking the period at the end of paragraph (2) and inserting ; and; and

(3)

by adding at the end the following new paragraph:

(3)

to give liberal consideration to all available evidence that a sex-related offense occurred, including evidence from sources other than records of the armed force concerned that may corroborate the individual’s account of the sex-related offense (including evidence of changes in the individual’s behavior after the offense and other circumstantial evidence that may corroborate the individual’s account of the sex-related offense).

.

(d)

Medical advisory opinions in connection with sex-Related offenses

Section 1554b of title 10, United States Code, as added by subsection (a), is amended—

(1)

by redesignating subsection (d) as subsection (e); and

(2)

by inserting after subsection (c) the following new subsection (d):

(d)

Medical advisory opinions

Any medical advisory opinion issued to a board established in accordance with this chapter in the case of a review carried out in accordance with the process established under this section shall include the opinion of a psychologist or psychiatrist with training in sexual trauma cases.

.

(e)

Conforming amendments

Section 1554b of title 10, United States Code, as added by subsection (a), is further amended—

(1)

by striking Armed Forces each place it appears in subsections (a) and (b) and inserting armed forces;

(2)

in subsection (a)—

(A)

by striking boards for the correction of military records of the military department concerned and inserting boards of the military department concerned established in accordance with this chapter; and

(B)

by striking such an offense and inserting a sex-related offense;

(3)

in subsection (b), striking boards for the correction of military records in the matter preceding paragraph (1) and inserting boards of the military department concerned established in accordance with this chapter; and

(4)

in subsection (e), as redesignated by subsection (d)(1)—

(A)

in paragraph (1), by striking title 10, United States Code and inserting this title; and

(B)

in paragraphs (2) and (3), by striking such title and inserting this title.

3.

Authority for discharge review boards to refer certain applications for relief to the Physical Disability Board of Review

(a)

Authority for discharge review boards To refer for disability review

Section 1553(b) of title 10, United States Code, is amended to read as follows:

(b)
(1)

To reflect its findings, a board established under this section may—

(A)

change a discharge or dismissal;

(B)

issue a new discharge; or

(C)

in the case of a former member whose application for relief is based in whole or in part on matters relating to a sex-related offense, post-traumatic stress disorder, or traumatic brain injury, refer the application for relief to the Physical Disability Board of Review established under section 1554a of this title for review under such section.

(2)

Any action of the board under this subsection is subject to review by the Secretary concerned.

.

(b)

Treatment of referral

Section 1554a of title 10, United States Code, is amended—

(1)

by redesignating subsection (f) as subsection (g); and

(2)

by inserting after subsection (e) the following new subsection (f):

(f)

Referrals from discharge review board

(1)

Except as provided in paragraph (2), a referral for review pursuant to section 1553(b)(1)(C) of this title shall be treated as a request for review by a covered individual for purposes of this section.

(2)

In the case of a referral for review pursuant to section 1553(b)(1)(C) of this title—

(A)

a previous disability determination by a Physical Evaluation Board shall not be required; and

(B)

subsection (c)(4) shall not apply.

.

4.

Public availability of information related to disposition of claims regarding discharge or release of members of the Armed Forces when the claims involve sex-related offenses

(a)

Boards for the correction of military records

Section 1552(h) of title 10, United States Code, as added by section 533(a) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328), is amended by adding at the end the following new paragraph:

(4)

The number and disposition of claims submitted during the calendar quarter preceding the calendar quarter in which such information is made available in which a sex-related offense is alleged to have contributed, whether in whole or in part, to the original characterization of the discharge or release of the claimant.

.

(b)

Discharge review Boards

Section 1553(f) of title 10, United States Code, as added by section 533(b) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328), is amended by adding at the end the following new paragraph:

(4)

The number and disposition of claims submitted during the calendar quarter preceding the calendar quarter in which such information is made available in which a sex-related offense is alleged to have contributed, whether in whole or in part, to the original characterization of the discharge or release of the claimant.

.

5.

Training requirements

(a)

Members of boards for the correction of military records

Section 534(c)(1) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328; 10 U.S.C. 1552 note) is amended by adding at the end the following new sentence: This curriculum shall also address the proper handling of claims in which a sex-related offense is alleged to have contributed to the original characterization of the discharge or release of the claimant, including guidelines for the consideration of evidence substantiating such allegations in accordance with the requirements of section 1554b(b)(3) of title 10, United States Code..

(b)

Department of defense personnel who investigate claims of retaliation

Section 546(a) of the National Defense Authorization Act for Fiscal Year 2017 (Public Law 114–328) is amended by striking section. and inserting section, including guidelines for the consideration of evidence substantiating such allegations in accordance with the requirements of section 1554b(b)(3) of title 10, United States Code..

6.

Other improvements to authorities and procedures for the correction of military records

(a)

Boards for the correction of military records

(1)

Use of secretarial authority to correct military records

Section 1552(a)(1) of title 10, United States Code, is amended by striking may both places it appears and inserting shall.

(2)

Indexing of published decisions

Paragraph (5) of section 1552(a) of title 10, United States Code, is amended to read as follows:

(5)

Beginning October 1, 2018, each final decision of a board under this subsection shall be made available to the public in electronic form on a centralized Internet website. The information provided shall include a summary of each decision, to be indexed by subject matter, except that the Secretary shall protect the privacy of claimants by redacting all personally identifiable information.

.

(b)

Discharge Review Boards

(1)

Repeal of 15-year statute of limitations on motions or requests for review

Section 1553(a) of title 10, United States Code, is amended by striking the second sentence.

(2)

Telephonic presentation of evidence

Section 1553(c) of title 10, United States Code, is amended in the second sentence by striking or by affidavit and inserting , by affidavit, or by telephone or video conference.

(c)

Effective date

The amendments made by this section shall take effect on October 1, 2018.

7.

Burdens of proof applicable to investigations and reviews related to protected communications of members of the Armed Forces and prohibited retaliatory actions

(a)

In general

Section 1034 of title 10, United States Code, is amended—

(1)

by redesignating subsections (i) and (j) as subsections (j) and (k), respectively; and

(2)

by inserting after subsection (h) the following new subsection (i):

(i)
(1)

For purposes of this section, there is sufficient basis to conclude that a personnel action prohibited by subsection (b) has occurred if the communication made by the member or former member was a contributing factor in the personnel action that was taken, or is to be taken, against the member or former member unless there is clear and convincing evidence that the same personnel action would have been taken in the absence of the communication.

(2)

A member or former member may demonstrate that the communication was a contributing factor in the personnel action through circumstantial evidence, such as evidence that—

(A)

the official taking the personnel action knew of the communication; and

(B)

the personnel action occurred within a period of time such that a reasonable person could conclude that the communication was a contributing factor in the personnel action.

.

(b)

Effective date

The amendment made by subsection (a) shall take effect on the date that is 30 days after the date of the enactment of this Act, and shall apply with respect to allegations pending or submitted under section 1034 of title 10, United States Code, on or after that date.

8.

Administrative separation protections for members of the Armed Forces who are survivors of sex-related offenses

(a)

Covered member defined

In this section, the term covered member means a member of the Armed Forces who is diagnosed with a mental health condition related to a sex-related offense that occurred during the member’s service in the Armed Forces.

(b)

Limitations on separation for a mental disorder not constituting a physical disability

(1)

Review of diagnosis

A covered member shall not be separated on the basis of a personality disorder or other mental disorder not constituting a physical disability, unless the diagnosis of such disorder has been—

(A)

corroborated by a peer or higher-level mental health professional; and

(B)

endorsed by the Surgeon General of the military department concerned.

(2)

Co-morbid PTSD diagnosis

Unless found fit for duty by the disability evaluation system, a covered member shall not be separated on the basis of a personality disorder or other mental disorder not constituting a physical disability if service-related post-traumatic stress disorder is also diagnosed.

(c)

Effective date

This section shall take effect 180 days after the date of the enactment of this Act.

9.

Department of Defense working group on administrative review boards

(a)

Establishment and purpose

The Secretary of Defense shall establish a Department of Defense working group for the purpose of identifying and making recommendations to the Secretary of Defense on best practices and procedures to be used by boards for the correction of military records and discharge review boards in carrying out their responsibilities under chapter 79 of title 10, United States Code, and in granting relief to claimants under that chapter.

(b)

Consultation

In carrying out the responsibilities of the working group, members of the group shall consult, as appropriate, with civilian practitioners of military law and representatives of organizations that have experience in cases before boards for the correction of military records and discharge review boards.

(c)

Reports required

(1)

Initial report

Not later than 180 days after the date of the establishment of the working group, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report containing the findings and recommendations of the working group.

(2)

Subsequent report

Not later than two years after the date of the establishment of the working group, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report containing an evaluation conducted by the working group of—

(A)

all recommendations of the working group that have been or are being implemented by boards for the correction of military records and discharge review boards; and

(B)

the results of the implementation of such recommendations.