[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1789 Introduced in Senate (IS)]
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116th CONGRESS
1st Session
S. 1789
To amend title 10, United States Code, to reform procedures for
determinations on disposition of charges and the convening of courts-
martial for certain offenses under the Uniform Code of Military
Justice, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 11, 2019
Mrs. Gillibrand (for herself, Mr. Grassley, Mrs. Shaheen, Mr. Leahy,
Mr. Durbin, Ms. Warren, Mr. Bennet, Mr. Merkley, Mr. Blumenthal, Mr.
Wyden, Ms. Hirono, Ms. Hassan, Ms. Baldwin, Mr. Coons, Mr. Menendez,
Mrs. Feinstein, Mr. Udall, Ms. Klobuchar, Mr. Brown, Ms. Murkowski, Ms.
Smith, Mr. Booker, Mr. Sanders, Mr. Casey, Mr. Cruz, Mr. Paul, Ms.
Harris, Mr. Markey, Mr. Heinrich, and Ms. Duckworth) 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 reform procedures for
determinations on disposition of charges and the convening of courts-
martial for certain offenses under the Uniform Code of Military
Justice, 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 ``Military Justice Improvement Act of
2019''.
SEC. 2. IMPROVEMENT OF DETERMINATIONS ON DISPOSITION OF CHARGES FOR
CERTAIN OFFENSES UNDER UCMJ WITH AUTHORIZED MAXIMUM
SENTENCE OF CONFINEMENT OF MORE THAN ONE YEAR.
(a) Improvement of Determinations.--
(1) Military departments.--With respect to charges under
chapter 47 of title 10, United States Code (the Uniform Code of
Military Justice), that allege an offense specified in
subsection (b) and not excluded under subsection (c), the
Secretary of Defense shall require the Secretaries of the
military departments to provide as described in subsection (d)
for the determinations as follows:
(A) Determinations under section 830 of such
chapter (article 30 of the Uniform Code of Military
Justice) on the preferral of charges.
(B) Determinations under section 830 of such
chapter (article 30 of the Uniform Code of Military
Justice) on the disposition of charges.
(C) Determinations under section 834 of such
chapter (article 34 of the Uniform Code of Military
Justice) on the referral of charges.
(2) Homeland security.--With respect to charges under
chapter 47 of title 10, United States Code (the Uniform Code of
Military Justice), that allege an offense specified in
subsection (b) and not excluded under subsection (c) against a
member of the Coast Guard (when it is not operating as a
service in the Navy), the Secretary of Homeland Security shall
provide as described in subsection (d) for the determinations
as follows:
(A) Determinations under section 830 of such
chapter (article 30(a) of the Uniform Code of Military
Justice) on the preferral of charges.
(B) Determinations under section 830 of such
chapter (article 30 of the Uniform Code of Military
Justice) on the disposition of charges.
(C) Determinations under section 834 of such
chapter (article 34 of the Uniform Code of Military
Justice) on the referral of charges.
(b) Covered Offenses.--An offense specified in this subsection is
an offense as follows:
(1) An offense under chapter 47 of title 10, United States
Code (the Uniform Code of Military Justice), for which the
maximum punishment authorized under that chapter includes
confinement for more than one year.
(2) The offense of obstructing justice under section 931b
of title 10, United States Code (article 131b of the Uniform
Code of Military Justice), regardless of the maximum punishment
authorized under that chapter for such offense.
(3) The offense of retaliation for reporting a crime under
section 932 of title 10, United States Code (article 132 of the
Uniform Code of Military Justice), regardless of the maximum
punishment authorized under that chapter for such offense.
(4) A conspiracy to commit an offense specified in
paragraphs (1) through (3) as punishable under section 881 of
title 10, United States Code (article 81 of the Uniform Code of
Military Justice).
(5) A solicitation to commit an offense specified in
paragraphs (1) through (3) as punishable under section 882 of
title 10, United States Code (article 82 of the Uniform Code of
Military Justice).
(6) An attempt to commit an offense specified in paragraphs
(1) through (3) as punishable under section 880 of title 10,
United States Code (article 80 of the Uniform Code of Military
Justice).
(c) Excluded Offenses.--Subsection (a) does not apply to an offense
as follows:
(1) An offense under sections 883 through 917 of title 10,
United States Code (articles 83 through 117 of the Uniform Code
of Military Justice).
(2) An offense under section 933 or 934 of title 10, United
States Code (articles 133 and 134 of the Uniform Code of
Military Justice).
(3) A conspiracy to commit an offense specified in
paragraph (1) or (2) as punishable under section 881 of title
10, United States Code (article 81 of the Uniform Code of
Military Justice).
(4) A solicitation to commit an offense specified in
paragraph (1) or (2) as punishable under section 882 of title
10, United States Code (article 82 of the Uniform Code of
Military Justice).
(5) An attempt to commit an offense specified in paragraph
(1) or (2) as punishable under section 880 of title 10, United
States Code (article 80 of the Uniform Code of Military
Justice).
(d) Requirements and Limitations.--The disposition of charges
covered by subsection (a) shall be subject to the following:
(1) The determination whether to prefer such charges or
refer such charges to a court-martial for trial, as applicable,
shall be made by a commissioned officer of the Armed Forces
designated in accordance with regulations prescribed for
purposes of this subsection from among commissioned officers of
the Armed Forces in grade O-6 or higher who--
(A) are available for detail as trial counsel under
section 827 of title 10, United States Code (article 27
of the Uniform Code of Military Justice);
(B) have significant experience in trials by
general or special court-martial; and
(C) are outside the chain of command of the member
subject to such charges.
(2) Upon a determination under paragraph (1) to refer
charges to a court-martial for trial, the officer making that
determination shall determine whether to refer such charges for
trial by a general court-martial convened under section 822 of
title 10, United States Code (article 22 of the Uniform Code of
Military Justice), or a special court-martial convened under
section 823 of title 10, United States Code (article 23 of the
Uniform Code of Military Justice).
(3) A determination under paragraph (1) to prefer charges
or refer charges to a court-martial for trial, as applicable,
shall cover all known offenses, including lesser included
offenses.
(4) The determination to prefer charges or refer charges to
a court-martial for trial, as applicable, under paragraph (1),
and the type of court-martial to which to refer under
subparagraph (B), shall be binding on any applicable convening
authority for the referral of such charges.
(5) The actions of an officer described in paragraph (1) in
determining under that paragraph whether or not to prefer
charges or refer charges to a court-martial for trial, as
applicable, shall be free of unlawful or unauthorized influence
or coercion.
(6) The determination under paragraph (1) not to refer
charges to a general or special court-martial for trial shall
not operate to terminate or otherwise alter the authority of
commanding officers to refer charges for trial by summary
court-martial convened under section 824 of title 10, United
States Code (article 24 of the Uniform Code of Military
Justice), or to impose non-judicial punishment in connection
with the conduct covered by such charges as authorized by
section 815 of title 10, United States Code (article 15 of the
Uniform Code of Military Justice).
(e) Construction With Charges on Other Offenses.--Nothing in this
section shall be construed to alter or affect the preferral,
disposition, or referral authority of charges under chapter 47 of title
10, United States Code (the Uniform Code of Military Justice), that
allege an offense for which the maximum punishment authorized under
that chapter includes confinement for one year or less.
(f) Policies and Procedures.--
(1) In general.--The Secretaries of the military
departments and the Secretary of Homeland Security (with
respect to the Coast Guard when it is not operating as a
service in the Navy) shall revise policies and procedures as
necessary to comply with this section.
(2) Uniformity.--The General Counsel of the Department of
Defense and the General Counsel of the Department of Homeland
Security shall jointly review the policies and procedures
revised under this subsection in order to ensure that any lack
of uniformity in policies and procedures, as so revised, among
the military departments and the Department of Homeland
Security does not render unconstitutional any policy or
procedure, as so revised.
(g) Manual for Courts-Martial.--The Secretary of Defense shall
recommend such changes to the Manual for Courts-Martial as are
necessary to ensure compliance with this section.
SEC. 3. MODIFICATION OF OFFICERS AUTHORIZED TO CONVENE GENERAL AND
SPECIAL COURTS-MARTIAL FOR CERTAIN OFFENSES UNDER UCMJ
WITH AUTHORIZED MAXIMUM SENTENCE OF CONFINEMENT OF MORE
THAN ONE YEAR.
(a) In General.--Subsection (a) of section 822 of title 10, United
States Code (article 22 of the Uniform Code of Military Justice), is
amended--
(1) by redesignating paragraphs (8) and (9) as paragraphs
(9) and (10), respectively; and
(2) by inserting after paragraph (7) the following new
paragraph (8):
``(8) with respect to offenses to which section 2(a) of the
Military Justice Improvement Act of 2019 applies, the officers
in the offices established pursuant to section 3(c) of that Act
or officers in the grade of O-6 or higher who are assigned such
responsibility by the Chief of Staff of the Army, the Chief of
Naval Operations, the Chief of Staff of the Air Force, the
Commandant of the Marine Corps, or the Commandant of the Coast
Guard;''.
(b) No Exercise by Officers in Chain of Command of Accused or
Victim.--Such section (article) is further amended by adding at the end
the following new subsection:
``(c) An officer specified in subsection (a)(8) may not convene a
court-martial under this section if the officer is in the chain of
command of the accused or the victim.''.
(c) Offices of Chiefs of Staff on Courts-Martial.--
(1) Offices required.--Each Chief of Staff of the Armed
Forces or Commandant specified in paragraph (8) of section
822(a) of title 10, United States Code (article 22(a) of the
Uniform Code of Military Justice), as amended by subsection
(a), shall establish an office to do the following:
(A) To convene general and special courts-martial
under sections 822 and 823 of title 10, United States
Code (articles 22 and 23 of the Uniform Code of
Military Justice), pursuant to paragraph (8) of section
822(a) of title 10, United States Code (article 22(a)
of the Uniform Code of Military Justice), as so
amended, with respect to offenses to which section 2(a)
applies.
(B) To detail under section 825 of title 10, United
States Code (article 25 of the Uniform Code of Military
Justice), members of courts-martial convened as
described in subparagraph (A).
(2) Personnel.--The personnel of each office established
under paragraph (1) shall consist of such members of the Armed
Forces and civilian personnel of the Department of Defense, or
such members of the Coast Guard or civilian personnel of the
Department of Homeland Security, as may be detailed or assigned
to the office by the Chief of Staff or Commandant concerned.
The members and personnel so detailed or assigned, as the case
may be, shall be detailed or assigned from personnel billets in
existence as of the effective date for this Act specified in
section 6.
SEC. 4. DISCHARGE USING OTHERWISE AUTHORIZED PERSONNEL AND RESOURCES.
(a) In General.--The Secretaries of the military departments and
the Secretary of Homeland Security (with respect to the Coast Guard
when it is not operating as a service in the Navy) shall carry out
sections 2 and 3 using personnel, funds, and resources otherwise
authorized by law.
(b) No Authorization of Additional Personnel or Resources.--
Sections 2 and 3 shall not be construed as authorizations for
personnel, personnel billets, or funds for the discharge of the
requirements in such sections.
SEC. 5. MONITORING AND ASSESSMENT OF MODIFICATION OF AUTHORITIES BY
DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION,
AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES.
Section 546(c) of the Carl Levin and Howard P. ``Buck'' McKeon
National Defense Authorization Act for Fiscal Year 2015 (10 U.S.C. 1561
note) is amended--
(1) in paragraph (1)--
(A) by striking ``on the investigation'' and
inserting ``on the following:
``(A) The investigation''; and
(B) by adding at the end the following new
subparagraph:
``(B) The implementation and efficacy of sections 2
through 4 of the Military Justice Improvement Act of
2019 and the amendments made by such sections.''; and
(2) in paragraph (2), by striking ``paragraph (1)'' and
inserting ``paragraph (1)(A)''.
SEC. 6. EFFECTIVE DATE AND APPLICABILITY.
(a) Effective Date and Applicability.--This Act and the amendments
made by this Act shall take effect 180 days after the date of the
enactment of this Act, and shall apply with respect to any allegation
of charges of an offense specified in subsection (a) of section 2, and
not excluded under subsection (c) of section 2, which offense occurs on
or after such effective date.
(b) Revisions of Policies and Procedures.--Any revision of policies
and procedures required of the military departments or the Department
of Homeland Security as a result of this Act and the amendments made by
this Act shall be completed so as to come into effect together with the
coming into effect of this Act and the amendments made by this Act in
accordance with subsection (a).
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