[Congressional Record Volume 167, Number 213 (Thursday, December 9, 2021)]
[Senate]
[Pages S9098-S9100]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 4892. Mrs. GILLIBRAND submitted an amendment intended to be 
proposed by her to the bill S. 1605, to designate the National Pulse 
Memorial located at 1912 South Orange Avenue in Orlando, Florida, 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 4--MILITARY JUSTICE IMPROVEMENT AND INCREASING PREVENTION

     SEC. 539I. SHORT TITLE.

       This part may be cited as the ``Military Justice 
     Improvement and Increasing Prevention Act of 2021''.

     SEC. 539J. 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 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.
       (3) Rule of construction.--This section shall not be 
     construed to terminate or otherwise alter the authorities 
     enumerated in any articles of the Uniform Code of Military 
     Justice other than articles 30 and 34 (10 U.S.C. 830, 834).
       (b) Covered Offenses.--An offense specified in this 
     subsection is an offense as follows:
       (1)(A) Offenses under the following sections of 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: 
     sections 893a, 917a, 918, 919, 919a, 919b, 920, 920a, 920b, 
     920c, 921, 921a, 921b, 922, 924, 924a, 924b, 925, 926, 927, 
     928(b) and (c), 928a, 928b, 930, 931, 931a, 931b, 931c, 931d, 
     931e, 931f, 931g, and 932 (articles 93a, 117a, 118, 119, 
     119a, 119b, 120, 120a, 120b, 120c, 121, 121a, 121b, 122, 124, 
     124a, 124b, 125, 126, 127, 128(b) and (c), 128a, 128b, 130, 
     131, 131a, 131b, 131c, 131d, 131e, 131f, 131g, and 132, 
     respectively, of the Uniform Code of Military Justice).
       (B) The offenses of child pornography, negligent homicide, 
     indecent conduct, indecent language communicated to any child 
     under the age of 16 years, and 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) 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 of such title (article 93a of the Uniform Code of 
     Military Justice).
       (2) An offense under section 922a, 923, 923a, or 928(a) of 
     title 10, United States Code (articles 122a, 123, 123a, and 
     128(a) 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), but not the offense of child pornography, 
     negligent homicide, indecent conduct, indecent language 
     communicated to any child under the age of 16 years, or 
     pandering and prostitution as punishable under the general 
     punitive article in section 934 of such title (article 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 cause charges to be 
     preferred or refer such charges to a court-martial for trial, 
     as applicable, shall be made by a commissioned officer of the 
     Armed Forces designated as a court-martial convening 
     authority 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 cause charges to 
     be preferred or refer charges to a court-martial for trial, 
     as applicable, shall cover all known offenses, including 
     lesser included offenses.
       (4) The determination to cause charges to be preferred 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 cause 
     charges to be preferred 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 special 
     court-martial under section 823 of title 10, United States 
     Code (article 23 of the Uniform Code of Military Justice) or 
     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).
       (7) The determination under paragraph (1) to refer charges 
     to a general or special court-martial shall not be subject to 
     section 834 of title 10, United States Code (article 34 of 
     the Uniform Code of Military Justice), provided that the 
     officer making the determination determines that--
       (A) the specification alleges an offense under the Uniform 
     Code of Military Justice;
       (B) there is probable cause to believe that the accused 
     committed the offense charged; and
       (C) a court-martial would have jurisdiction over the 
     accused and the offense.
       (8) The convening authority shall not concurrently or 
     subsequently serve as counsel or supervisory counsel in the 
     same case in the case in which he or she served as the 
     convening authority.
       (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, except for the offenses of 
     child pornography, negligent homicide, indecent conduct, 
     indecent language communicated to any

[[Page S9099]]

     child under the age of 16 years, and pandering and 
     prostitution as punishable under the general punitive article 
     in section 934 of such title (article 134 of the Uniform Code 
     of Military Justice).
       (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.
       (h) Improved Specialization of Criminal Investigators.--The 
     Secretary of Defense shall revise policies and procedures as 
     necessary to improve specialization of criminal investigators 
     to help increase the efficiency and effectiveness of sexual 
     assault and domestic violence investigations.

     SEC. 539K. 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 539J(a) of 
     the Military Justice Improvement and Increasing Prevention 
     Act of 2021 applies, the officers in the offices established 
     pursuant to section 539K(c) of that Act or officers in the 
     grade of O-6 or higher who are assigned such responsibility 
     by 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.''.
       (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 Secretary of a military 
     department and the Secretary of Homeland Security (with 
     respect to the Coast Guard when it is not operating as a 
     service in the Navy) 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 539J(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 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). 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 Apart specified in section 539R.

     SEC. 539L. 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 539J and 539K 
     using personnel, funds, and resources otherwise authorized by 
     law.
       (b) No Authorization of Additional Personnel or 
     Resources.--Sections 539J and 539K shall not be construed as 
     authorizations for personnel, personnel billets, or funds for 
     the discharge of the requirements in such sections.

     SEC. 539M. 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 539J 
     through 539L of the Military Justice Improvement and 
     Increasing Prevention Act of 2021 and the amendments made by 
     such sections.''; and
       (2) in paragraph (2), by striking ``paragraph (1)'' and 
     inserting ``paragraph (1)(A)''.

     SEC. 539N. LIMITATION ON MODIFICATIONS TO SEXUAL ASSAULT 
                   REPORTING PROCEDURES.

       (a) In General.--The Secretary of Defense may not amend 
     section 4 of enclosure 4 of Department of Defense Instruction 
     (DoDI) 6495.02, relating to Sexual Assault Prevention and 
     Response (SAPR) Program Procedures, or otherwise prescribe 
     any regulations or guidance relating to the treatment and 
     handling of unrestricted and restricted reports of sexual 
     assault, until 30 days after notifying the congressional 
     defense committees of the proposed amendment or modification.
       (b) Congressional Defense Committees Defined.--In this 
     section, the term ``congressional defense committees'' has 
     the meaning given the term in section 101(a) of title 10, 
     United States Code.

     SEC. 539O. PROFESSIONALIZATION OF MILITARY PROSECUTORS.

       (a) In General.--The Secretary of Defense shall increase 
     enhanced and specialized training to certain prosecutors on 
     the proper conduct, presentation, and handling of sexual 
     assault and domestic violence cases.
       (b) Report.--Not later than 180 days after the date of the 
     enactment of this Act, the Secretary of Defense shall submit 
     to the congressional defense committees a report on the 
     program implemented under subsection (a).

     SEC. 539P. INCREASED TRAINING AND EDUCATION ON MILITARY 
                   SEXUAL ASSAULT.

       (a) Uniformed Officers and Senior Enlisted Leaders.--
       (1) Uniformed officers.--All uniformed officers of the 
     military services shall be required within 2 years of the 
     date of the enactment of this Act to complete training on 
     military sexual assault prevention equivalent to that 
     provided to Sexual Assault Prevention and Response Victim 
     Advocates before those officers may be considered for 
     promotion to a grade at or above O-5. A portion of this 
     training shall be in-person, facilitated training.
       (2) Enlisted leaders.--All senior enlisted leaders of the 
     military services will be required within 2 years of the date 
     of the enactment of this Act to complete a training on 
     military sexual assault prevention equivalent to that 
     provided to the Sexual Assault Prevention and Response Victim 
     Advocates before enlisted service members may be considered 
     for promotion to a grade at or above E-9. A portion of this 
     training shall be in-person, facilitated training.
       (b) Officer Candidates and ROTC.--
       (1) In general.--The United States Army Cadet Command, the 
     Naval Education and Training Command, the Air Education and 
     Training Command, and the Coast Guard Recruiting Command 
     shall carry out a program for increasing training on the 
     prevention of military sexual assault within cadet ranks. A 
     portion of this training shall be in-person, facilitated 
     training.
       (2) Report on development of plan.--Not later than 180 days 
     after the date of the enactment of this Act, the United 
     States Army Cadet Command, the Naval Education and Training 
     Command, the Air Education and Training Command, and the 
     Coast Guard Recruiting Command shall submit to the 
     congressional defense committees a report on the development 
     of the program required under paragraph (1) and a plan for 
     execution.
       (3) Report on implementation.--Not later than 2 years after 
     the date of the enactment of this Act, the United States Army 
     Cadet Command, the Naval Education and Training Command, the 
     Air Education and Training Command, and the Coast Guard 
     Recruiting Command shall submit to the congressional defense 
     committees a report on the implementation of the program 
     required under paragraph (1).
       (c) Military Service Academies.--
       (1) In general.--The Superintendents of the military 
     service academies shall carry out additional military sexual 
     assault prevent training and education at the academies. A 
     portion of this training shall be in-person, facilitated 
     training.
       (2) Report.--The Secretary of Defense, in consultation with 
     the Superintendents of the military service academies, shall 
     submit a report to the congressional defense committees 
     describing the additional training and education implemented 
     pursuant to paragraph (1).

     SEC. 539Q. INCREASING THE PHYSICAL SECURITY OF MILITARY 
                   INSTALLATIONS.

       (a) Survey.--Not later than 180 days after the date of the 
     enactment of this Act, the Secretary of Defense shall conduct 
     a survey of all lodging and living spaces on military 
     installations to identify, replace, or repair locking 
     mechanisms on points of entry, identify areas of installation 
     of closed-circuit

[[Page S9100]]

     television (CCTV) security cameras, and other passive 
     security measures as necessary to increase the prevention of 
     crimes, including sexual assault, on military installations.
       (b) Report.--Not later than 180 days after the date of the 
     enactment of this Act, the Secretary of Defense shall submit 
     to the congressional defense committees a report on the 
     results of the survey conducted under subsection (a).
       (c) Program.--Based on the results of the survey conducted 
     under subsection (a), the Secretary of Defense shall carry 
     out a program for increasing the security of all lodging and 
     living spaces on military installations, including replacing 
     or repairing locking mechanisms on points of entry, 
     installation of CCTV security cameras, and other passive 
     security measures as necessary to increase the prevention of 
     crimes, including sexual assault, on military installations.

     SEC. 539R. 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 (b) of section 539J, and not excluded under 
     subsection (c) of section 539J, 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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