[Congressional Record Volume 163, Number 127 (Thursday, July 27, 2017)]
[Senate]
[Pages S4462-S4464]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 455. Mr. BLUMENTHAL submitted an amendment intended to be proposed
by him to the bill H.R. 2810, to authorize appropriations for fiscal
year 2018 for military activities of the Department of Defense, for
military construction, and for defense activities of the Department of
Energy, to prescribe military personnel strengths for such fiscal year,
and for other purposes; which was ordered to lie on the table; as
follows:
At the end of division A add the following:
TITLE XVII--DISCHARGE AND DISCHARGE REVIEW MATTERS
SEC. 1701. 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for Fiscal Year 2015 is repealed.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
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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. 1702. 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. 1703. 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. 1704. 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. 1705. 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. 1706. 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. 1707. 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. 1708. 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.
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(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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