[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 1543 Introduced in Senate (IS)]

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115th CONGRESS
  1st Session
                                S. 1543

  To amend title 10, United States Code, to improve protections for a 
member of the Armed Forces who is a survivor of a sexual assault 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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 12, 2017

Mr. Blumenthal 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 protections for a 
member of the Armed Forces who is a survivor of a sexual assault 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.

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

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

SEC. 2. CONFIDENTIAL REVIEW OF CHARACTERIZATION OF TERMS OF DISCHARGE 
              OF MEMBERS WHO ARE SURVIVORS OF SEXUAL ASSAULT.

    (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:
``Sec. 1554b. Confidential review of characterization of terms of 
              discharge of members of the armed forces who are 
              survivors of sexual assault'';
                and
                    (B) a text consisting of the text of section 547 of 
                the Carl Levin and Howard P. ``Buck'' McKeon National 
                Defense Authorization Act for Fiscal Year 2015 (Public 
                Law 113-291; 128 Stat. 3375; 10 U.S.C. 1553 note).
            (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 sexual assault.''.
            (3) Conforming repeal.--Section 547 of the Carl Levin and 
        Howard P. ``Buck'' McKeon National Defense Authorization Act 
        for Fiscal Year 2015 is repealed.
    (b) Terminology.--Section 1554b of title 10, United States Code, as 
added by subsection (a) of this section, is amended--
            (1) in subsection (a), by striking ``victim'' each place it 
        appears and inserting ``survivor''; and
            (2) by striking ``sex-related'' each place it appears and 
        inserting ``sexual assault''.
    (c) Clarification of Applicability to Individuals Who Allege They 
Were a Survivor of Sexual Assault During Military Service.--Subsection 
(a) of such section 1554b, as so added, is further amended by inserting 
after ``sexual assault offense'' the following: ``, or alleges that the 
individual was the survivor of a sexual assault offense,''.
    (d) Additional Requirements for Consideration of Evidence.--
Subsection (b) of such section 1554b, as so added, 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 sexual assault occurred, including evidence 
        from sources other than records of the armed force concerned 
        that may corroborate the individual's account of the sexual 
        assault (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 sexual 
        assault).''.
    (e) Medical Advisory Opinions in Connection With Survivors of 
Sexual Assault.--Such section 1554b, as so added, is further 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 psychiatrist or 
psychologist with training in sexual trauma cases.''.
    (f) Conforming Amendments.--Such section 1554b, as so added, 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 sexual-assault offense'';
            (3) in subsection (b), by striking ``boards for the 
        correction of military records'' and inserting ``boards of the 
        military department concerned established in accordance with 
        this chapter''; and
            (4) in subsection (e), as redesignated by subsection (e)(1) 
        of this section--
                    (A) in the subsection heading, by striking ``Sex-
                related'' and inserting ``Sexual Assault'';
                    (B) in paragraph (1), by striking ``title 10, 
                United States Code'' and inserting ``this title''; and
                    (C) in paragraphs (2) and (3), by striking ``such 
                title'' and inserting ``this title''.

SEC. 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.--
            (1) Authority.--Subsection (b) of section 1553 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 
        sexual assault, 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.''.

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 SEXUAL ASSAULT.

    (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 decided during 
        the calendar quarter preceding the calendar quarter in which 
        such information is made available in which sexual assault 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, is amended by adding at the end 
the following new paragraph:
            ``(4) The number and disposition of claims decided during 
        the calendar quarter preceding the calendar quarter in which 
        such information is made available in which sexual assault is 
        alleged to have contributed, whether in whole or in part, to 
        the original characterization of the discharge or release of 
        the claimant.''.

SEC. 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 sexual assault 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 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.''.

SEC. 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) 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.

SEC. 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 amendments 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.

SEC. 8. ADMINISTRATIVE SEPARATION PROTECTIONS FOR MEMBERS OF THE ARMED 
              FORCES WHO ARE SURVIVORS OF SEXUAL ASSAULT.

    (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 sexual assault 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.

SEC. 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 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.--
            (1) Initial report.--Not later than 180 days after the date 
        of the establishment of the working group, the Secretary 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.--
                    (A) In general.--Not later than two years after the 
                date of the establishment of the working group, the 
                Secretary shall submit to the committees of Congress 
                referred to in subparagraph (B) a report containing an 
                evaluation conducted by the working group of all the 
                recommendations of the working group that have been or 
                are being implemented by boards for the correction of 
                military records and discharge review boards of the 
                military departments, including the results of the 
                implementation of such recommendations.
                    (B) Committees of congress.--The committees of 
                Congress referred to in this subparagraph are--
                            (i) the Committee on Armed Services and the 
                        Committee on Veterans' Affairs of the Senate; 
                        and
                            (ii) the Committee on Armed Services and 
                        the Committee on Veterans' Affairs of the House 
                        of Representatives.
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