National Defense Authorization Act brings changes to UCMJ

| March 21, 2014 | 0 Comments

A3_ARNEWS_UCMJ Changes

David Vergun
Army News Service

The National Defense Authorization Act (NDAA) passed in December requires sweeping changes to the Uniform Code of Military Justice, particularly in cases of rape and sexual assault.

“These are the most changes to the Manual for Courts-Martial that we’ve seen since a full committee studied it decades ago,” said Lt. Col. John L. Kiel Jr., policy branch chief, Army’s Criminal Law Division in the Office of the Judge Advocate General.

Key provisions of the UCMJ that were rewritten under the NDAA for Fiscal Year 2014 — signed Dec. 26, 2013, by President Barack Obama — are Articles 32, 60, 120 and 125.

•Article 32. The law now requires the services to have judge advocates serve as Article 32 investigating officers. Previously, the Army was the only service in which judge advocates routinely did not serve as Article 32 investigating officers.

Article 32 hearings are held to determine if there’s enough evidence to warrant a general court-martial, the most serious type of court-martial used for felony-level offenses such as rape and murder.

Congress decided that the services needed to have trained lawyers, judge advocates, consider the evidence, since in their view, trained lawyers often are in the best position to make determinations to go forward with general courts-martial, Kiel said.

•Article 60. Like Article 32 changes, modifications to Article 60 are to be phased in over the course of 12 months. Article 60 involves pretrial agreements and actions by the convening authority in modifying or setting aside findings of a case or reducing sentencing. A convening authority could do that in the past, and some did, though rarely.

In the new law, legislators said the convening authority can no longer adjust any findings of guilt for felony offenses where the sentence is longer than six months or contains a discharge. They cannot change findings for any sex crime, irrespective of sentencing time.

•Articles 120 and 125. The UCMJ’s Articles 120 and 125 now have mandatory minimum punishments: dishonorable discharge for enlisted service members and dismissal for officers, Kiel said.

Article 120 deals with rape and sexual assault upon adults or children and other sex crimes, and Article 125 deals with forcible sodomy.

Congress highly encouraged the services not to dispose of sexual assault cases with adverse administrative action or an Article 15. Rather, Kiel said, Congress desires those cases to be tried at a general court-martial and has mandated that all sexual assault and rape cases be tried only by general court-martial.

•What’s Ahead. Congress could make even more changes that address sexual assaults in the military as early as this month, Kiel said. And later this year, changes to the Manual for Courts-Martial should be signed by the president after review by the services, the national security staff, the Defense Department and other agencies, he added. The updated manual would codify all the changes, although some already are in effect, Kiel said.

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Category: News, Staff Judge Advocate (SJA)

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