[Congressional Record Volume 166, Number 117 (Thursday, June 25, 2020)]
[Senate]
[Pages S3413-S3414]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 1932. Mrs. GILLIBRAND (for herself and Mr. Grassley) submitted an
amendment intended to be proposed by her to the bill S. 4049, to
authorize appropriations for fiscal year 2021 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 subtitle D of title V, add the following:
PART III--DISPOSITION OF CHARGES AND CONVENING OF COURTS-MARTIAL FOR
CERTAIN UCMJ OFFENSES
SEC. 539. SHORT TITLE.
This part may be cited as the ``Military Justice
Improvement Act of 2020''.
SEC. 539A. 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) A conspiracy to commit an offense specified in
paragraph (1) as punishable under section 881 of title 10,
United States Code (article 81 of the Uniform Code of
Military Justice).
(3) A solicitation to commit an offense specified in
paragraph (1) as punishable under section 882 of title 10,
United States Code (article 82 of the Uniform Code of
Military Justice).
(4) An attempt to commit an offense specified in paragraph
(1) 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), but not an offense under section
893a or 917a of such title (articles 93a and 117a of the
Uniform Code of Military Justice) or the offense of child
pornography, negligent homicide, indecent conduct, or
pandering and prostitution as punishable under the general
punitive article in 934 of such title (article 134 of the
Uniform Code of Military Justice).
(2) An offense under section 922a, 923, or 923a of title
10, United States Code (articles 122a, 123, and 123a of the
Uniform Code of Military Justice).
(3) An offense under section 933 or 934 of title 10, United
States Code (articles 133 and 134 of the Uniform Code of
Military Justice).
(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).
(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
paragraph (2), 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.
[[Page S3414]]
SEC. 539B. 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 539A(a) of
the Military Justice Improvement Act of 2020 applies, the
officers in the offices established pursuant to section
539B(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 539A(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 part specified in section 539E.
SEC. 539C. 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 539A and 539B
using personnel, funds, and resources otherwise authorized by
law.
(b) No Authorization of Additional Personnel or
Resources.--Sections 539A and 539B shall not be construed as
authorizations for personnel, personnel billets, or funds for
the discharge of the requirements in such sections.
SEC. 539D. 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 539A
through 539C of the Military Justice Improvement Act of 2020
and the amendments made by such sections.''; and
(2) in paragraph (2), by striking ``paragraph (1)'' and
inserting ``paragraph (1)(A)''.
SEC. 539E. EFFECTIVE DATE AND APPLICABILITY.
(a) Effective Date and Applicability.--This part and the
amendments made by this part 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 539A, and not excluded under
subsection (c) of section 539A, 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
part and the amendments made by this part shall be completed
so as to come into effect together with the coming into
effect of this part and the amendments made by this part in
accordance with subsection (a).
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