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S. 1500: Military Special Victims Protection Act of 2019

The text of the bill below is as of May 16, 2019 (Introduced).


II

116th CONGRESS

1st Session

S. 1500

IN THE SENATE OF THE UNITED STATES

May 16, 2019

(for herself and Ms. Sinema) 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 improve and enhance protections for members of the Armed Forces who are victims of a sex-related or domestic violence offense, and for other purposes.

1.

Short title

This Act may be cited as the Military Special Victims Protection Act of 2019.

2.

Enactment and expansion of policy on withholding of initial disposition authority for certain offenses under the Uniform Code of Military Justice

(a)

Initial disposition authority

(1)

In general

Except as provided in paragraph (2), the proper authority for a determination of disposition of reported offenses with respect to any offense specified in subsection (b) shall be an officer in a grade not below the grade of O–6 in the chain of command of the subject who is authorized by chapter 47 of such title (the Uniform Code of Military Justice) to convene special courts-martial.

(2)

Authority when subject and victim are in different chains of command

If the victim of an offense specified in subsection (b) is in a different chain of command than the subject, the proper authority under paragraph (1) shall be an officer described in that paragraph in the chain of command of the victim.

(3)

Construction

Nothing in this subsection shall be construed—

(A)

to prohibit the preferral of charges by an authorized person under section 830(a)(1) of title 10, United States Code (article 30(a)(1) of the Uniform code of Military Justice), with respect to the offenses specified in subsection (b), and the forwarding of such charges as so preferred to the proper authority under paragraph (1) with a recommendation as disposition; or

(B)

to prohibit an officer in a grade below the grade of O–6 from advising an officer described in paragraph (1) who is making a determination described in that paragraph with respect to the disposition of the offenses involved.

(b)

Covered offenses

An offense specified in this subsection is any offense as follows:

(1)

An offense under section 893 of title 10, United States Code (article 93 of the Uniform Code of Military Justice), relating to cruelty and maltreatment, if the offense constitutes sexual harassment.

(2)

An offense under section 893a of title 10, United States Code (article 93a of the Uniform Code of Military Justice), relating to prohibited activity with a military recruit or trainee by a person in a position of special trust.

(3)

An offense under section 918 of title 10, United States Code (article 118 of the Uniform Code of Military Justice), relating to murder, if the offense is committed in connection with family abuse or other domestic violence.

(4)

An offense under section 919 of title 10, United States Code (article 119 of the Uniform Code of Military Justice), relating to manslaughter, if the offense is committed in connection with family abuse or other domestic violence.

(5)

An offense under section 919a of title 10, United States Code (article 119a of the Uniform Code of Military Justice), relating to death or injury of an unborn child, if the offense is committed in connection with family abuse or other domestic violence.

(6)

An offense under section 919b of title 10, United States Code (article 119b of the Uniform Code of Military Justice), relating to child endangerment, if the offense is committed in connection with family abuse or other domestic violence.

(7)

An offense under section 920 of title 10, United States Code (article 120 of the Uniform Code of Military Justice), relating to rape and sexual assault generally.

(8)

An offense under section 920b of title 10, United States Code (article 120b of the Uniform Code of Military Justice), relating to rape and sexual assault of a child.

(9)

An offense under section 920c of title 10, United States Code (article 120c of the Uniform Code of Military Justice), relating to other sexual misconduct.

(10)

An offense under section 925 of title 10, United States Code (article 125 of the Uniform Code of Military Justice), relating to kidnapping, if the offense is committed in connection with family abuse or other domestic violence.

(11)

An offense under section 928 of title 10, United States Code (article 128 of the Uniform Code of Military Justice), relating to aggravated assault, if the offense is committed in connection with family abuse or other domestic violence.

(12)

An offense under section 928a of title 10, United States Code (article 128a of the Uniform Code of Military Justice), relating to maiming, if the offense is committed in connection with family abuse or other domestic violence.

(13)

An offense under section 928b of title 10, United States Code (article 128b of the Uniform Code of Military Justice), relating to domestic violence.

(14)

An offense under section 930 of title 10, United States Code (article 130 of the Uniform Code of Military Justice), relating to stalking, if the offense is committed in connection with family abuse or other domestic violence.

(15)

An offense under section 932 of title 10, United States Code (article 132 of the Uniform Code of Military Justice), relating to retaliation.

(16)

An offense under section 934 of title 10, United States Code (article 134 of the Uniform Code of Military Justice), if the offense relates to child pornography.

(17)

An offense under section 934 of title 10, United States Code (article 134 of the Uniform Code of Military Justice), if the offense—

(A)

relates to animal abuse; and

(B)

is committed in connection with family abuse or other domestic violence.

(18)

An offense under section 934 of title 10, United States Code (article 134 of the Uniform Code of Military Justice), if the offense—

(A)

relates to negligent homicide; and

(B)

is committed in connection with family abuse or other domestic violence.

(19)

An attempt to commit an offense specified in a paragraph (1) through (18) as punishable under section 880 of title 10, United States Code (article 80 of the Uniform Code of Military Justice).

(c)

Scope of disposition authority with respect to particular offenses

The authority in subsection (a) of an officer to make a disposition determination described in that subsection with respect to any offense specified in subsection (b) extends to a determination of disposition with respect to any of the following:

(1)

Any other offenses against the subject arising out of the incident in which the offense is alleged to have occurred.

(2)

Any reported offenses in connection with misconduct of the victim, arising out of such incident.

(d)

Scope of disposition determinations

Except for an offense specified in section 818(c) of title 10, United States Code (article 18(c) of the Uniform Code of Military Justice), of which only general courts-martial have jurisdiction, the disposition determinations permissible in the exercise of the authority under this section with respect to charges and specifications are as follows:

(1)

No action.

(2)

Administrative action.

(3)

Imposition of non-judicial punishment.

(4)

Preferral of charges.

(5)

If such charges and specifications were preferred from a subordinate, referral to court-martial for trial.

(6)

Forwarding to a superior or subordinate authority for further disposition.

(e)

Review of certain disposition determinations

(1)

Initial review and recommendation

If a disposition determination under this section with respect to an offense is for a disposition specified in paragraph (1), (2), or (3) of subsection (d) and the legal advisor to the officer making the disposition determination has recommended a disposition specified in paragraph (4), (5), or (6) of that subsection, a Special Victim Prosecutor (SVP), Senior Trial Counsel (STC), or Regional Trial Counsel (RTC) not in the chain of command of the officer making the disposition determination shall—

(A)

review the disposition determination; and

(B)

recommend to the staff judge advocate in the chain of command whether to endorse or supersede the disposition determination.

(2)

SJA review and advice

Upon completion of a review of a recommendation under paragraph (1)(B), the staff judge advocate concerned shall advise the next superior commander in the chain of command of the officer making the original disposition determination whether such disposition determination should be endorsed or superseded.

(3)

Final disposition determination

After considering advice under paragraph (2) with respect to an original disposition determination, the superior commander concerned shall—

(A)

make a new disposition determination with respect to the offenses concerned; or

(B)

endorse the original disposition determination for appropriate further action.

(f)

Training

(1)

In general

The training provided to commissioned officers of the Armed Forces in grades O–6 and above on the exercise of authority pursuant to this section for determinations of the disposition of an offense specified in subsection (b) shall include specific training on such matters in connection with sexual harassment, sexual assault, and family abuse and domestic violence as the Secretary of Defense considers appropriate to make informed disposition determinations under such authority.

(2)

Construction

Nothing in this subsection shall be construed to deprive a court-martial of jurisdiction based on the level or amount of training received by the disposition authority pursuant to this section.

(g)

Manual for Courts-Martial

The President shall implement the requirement of this section into the Manual for Courts-Martial in accordance with section 836 of title 10, United States Code (article 36 of the Uniform Code of Military Justice).

3.

Special Victims' Counsel matters

(a)

Expansion of covered offenses To include alleged domestic violence offenses

(1)

In general

Section 1044e of title 10, United States Code, is amended—

(A)

by striking alleged sex-related offense each place it appears and inserting alleged covered offense; and

(B)

by striking subsection (g) and inserting the following new subsection (g):

(g)

Definitions

In this section:

(1)

The term alleged covered offense means any of the following:

(A)

An alleged sex-related offense.

(B)

An alleged domestic violence offense.

(2)

The term alleged sex-related offense means any allegation of—

(A)

a violation of section 920, 920b, 920c, or 930 of this title (article 120, 120b, 120c, or 130 of the Uniform Code of Military Justice); or

(B)

an attempt to commit an offense specified in a subparagraph (A) as punishable under section 880 of this title (article 80 of the Uniform Code of Military Justice).

(3)

The term alleged domestic violence offense means any allegation of—

(A)

a violation of section 928(b), 928b(1), 928b(5), or 930 of this title (article 128(b), 128b(1), 128b(5), or 130 of the Uniform Code of Military Justice), when committed against a spouse, intimate partner, or immediate family member;

(B)

a violation of any other provision of subchapter X of chapter 47 of this title (the Uniform Code of Military Justice), when committed against a spouse, intimate partner, or immediate family member, as specified by the Secretary concerned for purposes of eligibility for legal consultation and assistance by Special Victims' Counsel under the jurisdiction of such Secretary under this section; or

(C)

an attempt to commit an offense specified in a subparagraph (A) or (B) as punishable under section 880 of this title (article 80 of the Uniform Code of Military Justice).

.

(2)

Conforming and clerical amendments

(A)

Heading amendment

The heading of such section is amended to read as follows:

1044e.

Special Victims' Counsel: victims of sex-related offenses; victims of domestic violence offenses

.

(B)

Table of sections

the table of sections at the beginning of chapter 53 of such title is amended by striking the item relating to section 1044e and inserting the following new item:

1044e. Special Victims' Counsel: victims of sex-related offenses; victims of domestic violence offenses.

.

(b)

Expansion of eligibility to all civilian victims of alleged covered offenses

Subsection (a)(2) of section 1044e of such title, as amended by subsection (a)(1) of this section, is further amended by striking subparagraph (C) and inserting the following new subparagraph (C):

(C)

Any civilian individual not covered by subparagraph (A) or (B) who is the victim of an alleged covered offense if the Secretary of Defense or the Secretary of the military department concerned waives any condition in such section for the purposes of offering Special Victims' Counsel services to such individual.

.

(c)

Enhancement of legal consultation and assistance in connection with potential victim benefits

Paragraph (8)(D) of subsection (b) of such section is amended by striking and other and inserting , section 1408(h) of this title, and other.

(d)

Expansion of legal assistance authorized To include consultation and assistance for retaliation

Subsection (b) of such section is amended further—

(1)

by redesignating paragraph (10) as paragraph (11); and

(2)

by inserting after paragraph (9) the following new paragraph (10):

(10)

Legal consultation and assistance in connection with an incident of retaliation, whether such incident occurs before, during, or after the conclusion of any criminal proceedings, including—

(A)

in understanding the rights and protections afforded to victims of retaliation;

(B)

in the filing of complaints; and

(C)

in any resulting military justice proceedings.

.

(e)

Codification of duty To determine victim's preference for prosecution of alleged offense by court-Martial or civilian court

(1)

In general

Such section is further amended—

(A)

by redesignating subsections (d) through (h) as subsections (e) through (i), respectively; and

(B)

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

(d)

Duty To determine victim's preference for prosecution of an alleged covered offense by court-Martial or civilian court

(1)

In providing legal consultation and representation to a victim under this section in connection with an alleged covered offense that occurs in the United States, a Special Victims' Counsel shall have the duty—

(A)

to solicit the victim's preference regarding whether the offense should be prosecuted by court-martial or in a civilian court with jurisdiction over the offense; and

(B)

to make the victim's preference, if offered, known to appropriate military prosecutors.

(2)

Any consultation by a Special Victims' Counsel pursuant to paragraph (1) shall occur in accordance with the process for such consultation established pursuant to section 534(b) of the Carl Levin and Howard P. Buck McKeon National Defense Authorization Act for Fiscal Year 2015 (10 U.S.C. 1044e note) or such other process as the Secretary of Defense shall establish for that purpose.

.

(2)

Conforming amendment

Paragraph (11) of subsection (b) of such section, as redesignated by subsection (d)(1) of this section, is amended by striking subsection (h) and inserting subsection (i).

(f)

Personnel and training

(1)

Personnel

Commencing October 1, 2019, each Secretary concerned shall establish and maintain such additional military and civilian billets for legal counsel and paralegals as such Secretary considers appropriate in order to ensure that each Armed Force under the jurisdiction of such Secretary is appropriately staffed to provide legal counsel and assistance required under section 1044e of title 10, United States Code, by reason of the amendments made by this section by not later than September 30, 2025.

(2)

Training

Each Secretary concerned shall provide military and civilian legal personnel under the jurisdiction of such Secretary such training as the Secretary considers appropriate for the provision of legal counsel and assistance required under section 1044e of title 10, United States Code, by reason of the amendments made by this section. To the extent practicable, the training provided pursuant to this paragraph shall be uniform across the Armed Forces.

(3)

Consultation

Each Secretary concerned shall consult with the Judge Advocate General concerned regarding the additional number of billets required pursuant to paragraph (1) and the training to be provided pursuant to paragraph (2).

(4)

Reports

Not later than 180 days after the date of the enactment of this Act, each Secretary concerned shall submit to the congressional defense committees a report setting forth the plan of such Secretary to modify the Special Victims' Counsel program under the jurisdiction of such Secretary in order to meet the requirement in paragraph (1) by the deadline specified in that paragraph. Each report shall set forth, for the Special Victims' Counsel program concerned, the number of additional military billets and additional civilian billets the Secretary concerned requires to establish and maintain under paragraph (1) in order to meet the requirement in that paragraph by the deadline specified in that paragraph.

(5)

Definitions

In this subsection:

(A)

The term Secretary concerned has the meaning given that term in section 101(a)(9) of title 10, United States Code.

(B)

The term Judge Advocate General has the meaning given that term in section 801(1) of title 10, United States Code (article 1(1) of the Uniform Code of Military Justice).

4.

Correction of military records and discharge review for certain former members whose narrative reason for discharge was wrongfully described as personality disorder

(a)

Correction of military records

Section 1552 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)

This subsection applies to a former member of the Armed Forces who is a military sexual trauma survivor and suffers from post-traumatic stress disorder or traumatic brain injury and whose claim under this section is for review of the narrative reason for discharge of the former member as personality disorder, borderline personal disorder, or a related non-disability mental condition (NDMC).

(2)

A claimant under this subsection shall support the claim with documentation or other evidence from a psychiatrist, psychologist, or other competent health care professional that the claimant does not have the disorder providing the narrative reason for the claimant's discharge.

(3)

In the case of a claimant described in paragraph (1), a board established under subsection (a) shall—

(A)

review and give liberal consideration to the documentation or evidence of the claimant under paragraph (2); and

(B)

if the board determines that the claimant does not have the disorder, correct the military records of the claimant to provide a narrative reason for the claimant's discharge as Secretarial Authority (or similar authority available at the time of the claimant's discharge if before the recognition of Secretarial Authority) or such other narrative reason (other than the disorder) as the board considers appropriate.

.

(b)

Discharge review

Section 1553 of such title is amended—

(1)

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

(2)

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

(f)

In the case of a former member of the Armed Forces who is a military sexual trauma survivor and suffers from post-traumatic stress disorder or traumatic brain injury and whose narrative reason for discharge or dismissal was personality disorder, borderline personality disorder, or a related non-disability mental condition (NDMC) and who submits to a board established under this section documentation or other evidence from a psychiatrist, psychologist, or other competent health care professional that the former member does not have the disorder providing the narrative reason for the former member's discharge or dismissal, the board shall—

(1)

review and give liberal consideration to the documentation or evidence submitted by the former member; and

(2)

if the board determines that the former member does not have the disorder, change the narrative reason for the former member's discharge or dismissal to Secretarial Authority or such other narrative reason (other than the disorder) as the board considers appropriate.

.

(c)

Reports

(1)

In general

Not later than 270 days after the date of the enactment of this Act, and annually thereafter for the next four years, each Secretary concerned shall submit to Congress a report on the activities of boards for the correction of military records under subsection (i) of section 1552 of title 10, United States Code (as amended by subsection (a) of this section), and of discharge review boards under subsection (f) of section 1553 of title 10, United States Code (as amended by subsection (b) of this section), under the jurisdiction of such Secretary during the one-year period ending on the date of such report. Each report shall include the following:

(A)

For the period covered by such report:

(i)

The number of claims submitted under such subsection (i) to boards for the correction of military records under the jurisdiction of such Secretary, and the number of claims for which relief was granted.

(ii)

The number of claims submitted under such subsection (f) to discharge review boards under the jurisdiction of such Secretary, and the number of claims for which relief was granted.

(B)

Such recommendations for administrative action or legislative action in connection with the activities of such boards under such subsections (i) and (f) as such Secretary considers appropriate.

(2)

Secretary concerned defined

In this subsection, the term Secretary concerned has the meaning given that term in section 101(a)(9) of title 10, United States Code.

5.

Inclusion of intimate partner violence among supporting rationales for certain claims for corrections of military records and discharge review

(a)

Correction of military records

Section 1552(h)(1) of title 10, United States Code, is amended by striking or military sexual trauma and inserting , military sexual trauma, or intimate partner violence.

(b)

Discharge review

Section 1553(d)(3)(B) of such title is amended by striking or military sexual trauma and inserting , military sexual trauma, or intimate partner violence.

6.

Training of members of boards for correction of military records and discharge review boards on military sexual trauma, intimate partner violence, and related matters

(a)

Boards for correction of military records

The curriculum of training for members of boards for the correction of military records under section 534(c) of the National Defense Authorization Act for Fiscal Year 2017 (10 U.S.C. 1552 note) shall include training on each of the following:

(1)

Military sexual trauma.

(2)

Intimate partner violence.

(3)

The various responses of individuals to trauma.

(b)

Discharge review boards

(1)

In general

Each Secretary concerned shall develop and provide training for members of discharge review boards under section 1553 of title 10, United States Code, that are under the jurisdiction of such Secretary on each of the following:

(A)

Military sexual trauma.

(B)

Intimate partner violence.

(C)

The various responses of individuals to trauma.

(2)

Uniformity of training

The Secretary of Defense and the Secretary of Homeland Security shall jointly ensure that the training developed and provided pursuant to this subsection is, to the extent practicable, uniform.

(3)

Secretary concerned defined

In this subsection, the term Secretary concerned has the meaning given that term in section 101(a)(9) of title 10, United States Code.

7.

Report on establishment of guardian ad litem program for certain military dependents who are victim or witness of offenses under the Uniform Code of Military Justice involving abuse or exploitation

(a)

Report required

(1)

In general

Not later than one year after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report setting forth an assessment of the feasibility and advisability of establishing a guardian ad litem program for military dependents described in paragraph (2) who are a victim or witness of an offense under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that involves an element of abuse or exploitation in order to protect the best interests of such dependents in a court-martial of such offense.

(2)

Covered dependents

The military dependents described in this paragraph are as follows:

(A)

Military dependents under 12 years of age.

(B)

Military dependents who lack mental or other capacity.

(b)

Elements

The report required by subsection (a) shall include the following:

(1)

An assessment of the feasibility and advisability of establishing a guardian ad litem program as described in subsection (a).

(2)

If establishment of the guardian ad litem program is considered feasible and advisable, the following:

(A)

A description of administrative requirements in connection with the program, including the following:

(i)

Any memoranda of understanding between the Department of Defense and State and local authorities required for purposes of the program.

(ii)

The personnel, funding, and other resources required for purposes of the program.

(B)

Best practices for the program (as determined in consultation with appropriate civilian experts on child advocacy).

(C)

Such recommendations for legislative and administration action to implement the program as the Secretary considers appropriate.