[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 1130 Introduced in Senate (IS)]

114th CONGRESS
  1st Session
                                S. 1130

To amend title 10, United States Code, to improve procedures for legal 
    justice for members of the Armed Forces, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 29, 2015

  Mrs. Boxer (for herself, Mr. Wyden, and Mr. Markey) 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 procedures for legal 
    justice for members of the Armed Forces, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Legal Justice for Servicemembers Act 
of 2015''.

SEC. 2. IMPROVEMENTS TO WHISTLEBLOWER PROTECTION PROCEDURES.

    (a) Modification of Actions Treatable as Prohibited Personnel 
Actions.--Paragraph (2) of subsection (b) of section 1034 of title 10, 
United States Code, is amended to read as follows:
    ``(2) The following actions shall be considered for the purposes of 
this section to be a personnel action prohibited by this subsection:
            ``(A) Any action prohibited by paragraph (1) (including the 
        threat to take any unfavorable action, the withholding or 
        threat to withhold any favorable action, making or threatening 
        to make a significant change in the duties or responsibilities 
        of a member of the armed forces not commensurate with the 
        member's grade, a retaliatory investigation, and the failure of 
        a superior to respond to retaliatory action or harassment by 
        one or more subordinates taken against a member of which the 
        superior knew or should have known).
            ``(B) Any other action that could be reasonably understood 
        as an attempt to dissuade a member of the armed forces from 
        making or preparing a communication, or participating in any 
        other activity, described in paragraph (1).''.
    (b) Option of Member Concerned To Decline Delegation of 
Investigation by DoD IG to Military Department IG.--Subparagraph (D) of 
subsection (c)(4) of such section is amended in the second sentence by 
inserting before the period the following: ``unless the member 
submitting the allegation declines the delegation''.
    (c) Temporary Stay of Personnel Actions.--Subsection (c)(4) of such 
section is further amended--
            (1) by redesignating subparagraph (E) as subparagraph (F); 
        and
            (2) by inserting after subparagraph (D) the following new 
        subparagraph (E):
    ``(E)(i) If the Inspector General makes a preliminary determination 
in an investigation under subparagraph (D) that there are reasonable 
grounds to believe that a personnel action prohibited by subsection (b) 
has occurred and the personnel action will result in an immediate 
hardship to the member alleging the personnel action, the Inspector 
General may impose a stay of the personnel action of not more than 90 
days in order to prevent undue hardship to the member.
    ``(ii) If the Inspector General has not completed the investigation 
described in clause (i) upon the expiration of the stay of the 
personnel action with respect to a member imposed by the Inspector 
General under that clause, the Secretary of the military department 
concerned or the Secretary of Homeland Security, as applicable, may 
continue the stay of the personnel action with respect to the member 
for such additional time as is required for the completion of the 
investigation by the Inspector General.''.
    (d) Periodic Notice to Members on Progress of IG Investigations.--
Paragraph (3) of subsection (e) of such section is amended to read as 
follows:
    ``(3)(A) Not later than 180 days after the commencement of an 
investigation of an allegation under subsection (c)(4), and every 90 
days thereafter until the transmission of the report on the 
investigation under paragraph (1) to the member concerned, the 
Inspector General conducting the investigation shall submit a notice on 
the investigation described in subparagraph (B) to the following:
            ``(i) The member.
            ``(ii) The Secretary of Defense.
            ``(iii) The Secretary of the military department concerned, 
        or the Secretary of Homeland Security in the case of a member 
        of the Coast Guard when the Coast Guard is not operating as a 
        service in the Navy.
    ``(B) Each notice on an investigation under subparagraph (A) shall 
include the following:
            ``(i) A description of the current progress of the 
        investigation, including the number of witnesses interviewed 
        and the number of documents reviewed.
            ``(ii) An estimate of the time remaining until the 
        completion of the investigation and the transmittal of the 
        report required by paragraph (1) to the member concerned.''.
    (e) IG Recommendations Regarding Disposition of Complaints.--
Paragraph (4) of subsection (e) of such section is amended to read as 
follows:
    ``(4) The report on the results of the investigation shall contain 
the following:
            ``(A) A thorough review of the facts and circumstances 
        relevant to the allegation and the complaint or disclosure.
            ``(B) The documents acquired during the course of the 
        investigation, including summaries of interviews conducted.
            ``(C) A recommendation as to the disposition of the 
        complaint.
            ``(D) Recommendations, made in consultation with the 
        appropriate Judge Advocate General, for disciplinary actions 
        against the person who committed the prohibited personnel 
        action, against a superior who failed to address such action of 
        which the superior knew or should have known, or both.''.
    (f) Actions in Case of Violations.--Subparagraph (B) of subsection 
(f)(3) of such section is amended to read as follows:
            ``(B) refer the report to the appropriate board for the 
        correction of military records for further review under 
        subsection (g) unless the member or former member requests, in 
        writing, during the 30-day period beginning on the date of the 
        making of the determination, that the report not be so 
        referred.''.
    (g) Correction of Records.--Subsection (g) of such section is 
amended--
            (1) by redesignating paragraphs (3) through (6) as 
        paragraphs (4) through (7), respectively;
            (2) by striking paragraph (2) and inserting the following 
        new paragraphs (2) and (3):
    ``(2) In resolving an application described in paragraph (1) for 
which there is a report of the Inspector General under subsection 
(e)(1), a correction board--
            ``(A) shall review the report of the Inspector General;
            ``(B) may request the Inspector General to gather further 
        evidence;
            ``(C) may receive oral argument, examine and cross-examine 
        witnesses, and take depositions; and
            ``(D) if requested by the member or former member, in 
        writing, shall hold an evidentiary hearing.
    ``(3) In resolving an application described in paragraph (1) for 
which there is no final action of the Inspector General within 365 days 
after the claimant submits an application to the Inspector General, the 
correction board--
            ``(A) may receive oral argument, examine and cross-examine 
        witnesses, and take depositions; and
            ``(B) if requested by the member or former member, in 
        writing, shall hold an evidentiary hearing.''; and
            (3) in paragraph (7), as redesignated by paragraph (1) of 
        this subsection, by inserting before the period at the end the 
        following: ``, against a superior who failed to address such 
        action of which the superior knew or should have known, or 
        both''.
    (h) Burdens of Proof.--Such section is further amended--
            (1) by redesignating subsections (h), (i), and (j) as 
        subsections (i), (j), and (k), respectively; and
            (2) by inserting after subsection (g) the following new 
        subsection (h):
    ``(h) Burdens of Proof.--The burdens of proof specified in section 
1221(e) of title 5 shall apply in any investigation conducted by an 
Inspector General, in any board for the correction of military records, 
and in any review conducted by the Secretary of Defense and the 
Secretary of Homeland Security, under this section.''.
    (i) Conforming Amendment.--Subsection (b)(1)(B)(ii) of such section 
is amended by striking ``subsection (i)'' and inserting ``subsection 
(k)''.
    (j) Uniform Standards for IG Investigations of Prohibited Personnel 
Actions and Other Matters.--
            (1) In general.--Not later than one year after the date of 
        the enactment of this Act, the Inspector General of the 
        Department of Defense shall prescribe uniform standards for the 
        following:
                    (A) The investigation of allegations of prohibited 
                personnel actions under section 1034 of title 10, 
                United States Code (as amended by this section), by the 
                Inspector General, the Inspectors General of the 
                military departments, and the Inspector General of the 
                Department of Homeland Security.
                    (B) The training of the staffs of the Inspectors 
                General referred to in subparagraph (A) on the conduct 
                of investigations described in that subparagraph.
            (2) Use.--Commencing 180 days after prescription of the 
        standards required by paragraph (1), the Inspectors General 
        referred to in that paragraph shall comply with such standards 
        in the conduct of investigations described in that paragraph 
        and in the training of the staffs of such Inspectors General in 
        the conduct of such investigations.

SEC. 3. IMPROVEMENTS TO AUTHORITIES AND PROCEDURES FOR THE CORRECTION 
              OF MILITARY RECORDS.

    (a) Requirement for Correction of Military Records.--Paragraph (1) 
of subsection (a) of section 1552 of title 10, United States Code, is 
amended in the first sentence by striking ``may correct'' and inserting 
``shall correct''.
    (b) AJs as Presiding Officers at Meetings of Boards for Correction 
of Military Records.--Such subsection is further amended--
            (1) by redesignating paragraphs (3) and (4) as paragraphs 
        (5) and (8), respectively; and
            (2) by inserting after paragraph (2) the following new 
        paragraph (3):
    ``(3) Each meeting of a board under this subsection, including any 
evidentiary hearing under paragraph (6), shall, to the extent 
practicable, have as its presiding officer an administrative judge 
serving on a part-time basis for that purpose under a contract with the 
Secretary concerned for that purpose.''.
    (c) Qualifications and Terms of Service on Boards.--
            (1) In general.--Such subsection is further amended by 
        inserting after paragraph (3), as inserted by subsection (b)(2) 
        of this section, the following new paragraph (4):
    ``(4)(A) The members of each board under this subsection shall be 
individuals who, by demonstrated ability, background, training, or 
experience are especially qualified to carry out the functions of a 
board under this section. No member of a board may hold another office 
or position in the Federal Government except as otherwise provided by 
law.
    ``(B) The term of service of an individual on a board may not 
exceed five years.''.
            (2) Application of term of service limitation to members 
        serving on date of enactment.--For purposes of the application 
        of paragraph (4)(B) of subsection (a) of section 1552 of title 
        10, United States Code (as amended by paragraph (1) of this 
        subsection), to individuals serving on boards for the 
        correction of military records as of the date of the enactment 
        of this Act, the term of service of such individuals on such 
        boards shall be deemed to have commenced on the date of the 
        enactment of this Act.
    (d) Procedures of Boards.--Paragraph (5) of such subsection, as 
redesignated by subsection (b)(1) of this section, is further amended--
            (1) by inserting ``(A)'' after ``(5)''; and
            (2) by adding at the end the following new subparagraphs:
    ``(B) If a board makes a preliminary determination that a claim 
under this section lacks sufficient information or documents to support 
the claim, the board shall notify the claimant, in writing, indicating 
the specific information or documents necessary to make the claim 
complete and reviewable by the board.
    ``(C) If a claimant is unable to provide military personnel or 
medical records applicable to a claim under this section, the board 
shall make reasonable efforts to obtain the records. A claimant shall 
provide the board with documentary evidence of the efforts of the 
claimant to obtain such records. The board shall inform the claimant of 
the results of the board's efforts, and shall provide the claimant 
copies of any records so obtained upon request of the claimant.
    ``(D) Any request for reconsideration of a determination of a board 
under this section, no matter when filed, shall be reconsidered by a 
board under this section if supported by materials not previously 
presented to or considered by the board in making such 
determination.''.
    (e) Evidentiary Hearings on Certain Claims.--Such subsection is 
further amended by inserting after paragraph (5), as redesignated by 
subsection (b)(1) of this section and amended by subsection (d) of this 
section, the following new paragraph (6):
    ``(6)(A) A board shall hold an evidentiary hearing on a claim that 
presents a genuine issue of material fact, if requested by the 
claimant.
    ``(B) A board holding an evidentiary hearing shall have broad 
discretion (as specified in the procedures required by paragraph (5)) 
to allow and limit discovery on matters covered by the hearing in order 
to expedite the hearing and action on the claim concerned.
    ``(C) A claimant may, at the election and expense of the claimant, 
be represented by outside counsel in connection with an evidentiary 
hearing.''.
    (f) Final Decisions of Boards.--Such subsection is further amended 
by inserting after paragraph (6), as inserted by subsection (e) of this 
section, the following new paragraph (7):
    ``(7)(A) Each final decision of a board under this subsection shall 
be made available to the public in electronic form on a centralized 
Internet website. In any decision so made available to the public--
            ``(i) there shall be redacted all personally identifiable 
        information; but
            ``(ii) if the decision relates to or arises from an 
        investigation under section 1034 of this title, there shall not 
        be redacted the names and position of such categories of 
        officers investigated, above the grade of lieutenant colonel 
        (or commander in the case of the Navy and the Coast Guard) as 
        the Secretary of Defense or the Secretary of Homeland Security, 
        as applicable, shall prescribe in the procedures under 
        paragraph (5).
    ``(B)(i) Under procedures jointly developed by the Secretaries of 
the military departments and the Secretary of Homeland Security, each 
final decision of a board shall be characterized by the board as having 
precedential value or non-precedential value for purposes of subsequent 
decisions of boards under this section.
    ``(ii) For purposes of this subparagraph--
            ``(I) a decision having precedential value is any decision 
        determined by a board in accordance with the procedures 
        required by clause (i) to add significantly to the case law of 
        boards under this section; and
            ``(II) a decision having non-precedential value is any 
        decision that does not have precedential value.
    ``(iii) Any decision having precedential value for purposes of this 
subparagraph may be cited or referred to by any party in a claim under 
this section.''.
    (g) Judicial Review of Determinations of Boards.--Paragraph (8) of 
such subsection, as redesignated by subsection (b)(1) of this section, 
is further amended--
            (1) by inserting ``(A)'' after ``(8)'';
            (2) in subparagraph (A), as so designated, by inserting 
        ``or subject to review or appeal as described in subparagraph 
        (B)'' after ``Except when procured by fraud''; and
            (3) by adding at the end the following new subparagraph:
    ``(B) A claimant may seek judicial review of a determination of a 
board under this section in an appropriate court of the United States. 
The scope of judicial review under this subparagraph shall be as 
specified in section 706 of title 5.''.
    (h) Training of Members of Boards.--
            (1) In general.--Not later than one year after the date of 
        the enactment of this Act, each Secretary concerned shall 
        develop and implement a comprehensive training curriculum for 
        members of boards for the correction of military records under 
        the jurisdiction of such Secretary in the duties of such boards 
        under section 1552 of title 10, United States Code. The 
        curriculum shall address all areas of administrative law 
        applicable to the duties of such boards.
            (2) Uniform curricula.--The Secretary of Defense and the 
        Secretary of Homeland Security shall jointly ensure that the 
        curricula developed and implemented pursuant to this subsection 
        are, to the extent practicable, uniform.
            (3) Training.--
                    (A) In general.--Each member of a board for the 
                correction of military records shall undergo retraining 
                (consistent with the curriculum developed and 
                implemented pursuant to this subsection) regarding the 
                duties of boards for the correction of military records 
                under section 1552 of title 10, United States Code, at 
                least once during the member's tenure on the board.
                    (B) Current members.--Each member of a board for 
                the correction of military records as of the date of 
                the implementation of the curriculum required by 
                paragraph (1) (in this paragraph referred to as the 
                ``curriculum implementation date'') the shall undergo 
                training described in subparagraph (A) not later than 
                90 days after the curriculum implementation date.
                    (C) New members.--Each individual who becomes a 
                member of a board for the correction of military 
                records after the curriculum implementation date shall 
                undergo training described in subparagraph (A) by not 
                later than 90 days after the date on which such 
                individual becomes a member of the board.
            (4) Reports.--Not later than 18 months after the date of 
        the enactment of this Act, each Secretary concerned shall 
        submit to Congress a report setting forth the following:
                    (A) A description and assessment of the progress 
                made by such Secretary in implementing training 
                requirements for members of boards for the correction 
                of military records under the jurisdiction of such 
                Secretary.
                    (B) A detailed description of the training 
                curriculum required of such Secretary by paragraph (1).
                    (C) A description and assessment of any impediments 
                to the implementation of training requirements for 
                members of boards for the correction of military 
                records under the jurisdiction of such Secretary.
            (5) Secretary concerned defined.--In this subsection, the 
        term ``Secretary concerned'' means a ``Secretary concerned'' as 
        that term is used in section 1552 of title 10, United States 
        Code.

SEC. 4. INCLUSIONS OF INSPECTORS GENERAL OF THE MILITARY DEPARTMENTS 
              AND CERTAIN OTHER INSPECTORS GENERAL IN COUNCIL OF THE 
              INSPECTORS GENERAL ON INTEGRITY AND EFFICIENCY.

    Section 11(b)(1) of the Inspector General Act of 1978 (5 U.S.C. 
App.) is amended by adding at the end the following new subparagraph:
                    ``(J) The Inspectors General of the Army, the Navy, 
                the Air Force, the Marine Corps, the National Guard 
                Bureau, and the Coast Guard.''.
                                 <all>