[Federal Register Volume 80, Number 99 (Friday, May 22, 2015)]
[Proposed Rules]
[Pages 29571-29582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-12256]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 114

[Docket ID: DOD-2014-OS-0131]
RIN 0790-AJ31


Victim and Witness Assistance

AGENCY: Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)), DoD.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This regulatory action updates established policy, assigned 
responsibilities, and prescribed procedures for the rights of crime 
victims under the Uniform Code of Military Justice (UCMJ). The rule 
discusses notification requirements and assistance available to victims 
and witnesses of crime, as well as annual reporting requirements on 
assistance provided across the DoD to victims and witnesses of crime.

DATES: Written comments must be received on or before July 21, 2015.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate of Oversight and Compliance, Regulatory 
and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-
9010.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Lt. Col. Ryan Oakley, Office of Legal 
Policy, 703-571-9301.

SUPPLEMENTARY INFORMATION: The Department of Defense is determined to 
assist victims and witnesses of violent crimes committed in violation 
of the Uniform Code of Military Justice (UCMJ).

I. Purpose of the Regulatory Action

    a. This rule establishes policy, assigns responsibilities, and 
prescribes procedures to assist victims and witnesses of crimes 
committed in violation the Uniform Code of Military Justice (UCMJ), and 
updates established policy, assigns responsibilities, and prescribes 
procedures for the rights of crime victims under the UCMJ and required 
mechanisms for enforcement. The rule also provides timely notification 
of information and assistance available to victims and witnesses of 
crime from initial contact through investigation, prosecution, 
confinement, and release, annual reporting requirements on assistance 
provided across the DoD to victims and witnesses of crime, and legal 
assistance for crime victims entitled to such services. The Military 
Services are required to provide legal counsel, known as Special 
Victims' Counsel/Victims' Legal Counsel (SVC/VLC), to assist victims of 
alleged sex-related offenses under Articles 120, 120a, 120b, 120c, and 
125 of the UCMJ, who are eligible for legal assistance. The Military 
Services are also required to establish a special victim capability 
comprised of specially trained criminal investigators, judge advocates, 
paralegals, and victim/witness assistance personnel to support victims 
of covered special victim offenses. To de-conflict with ``Special 
Victims' Counsel'' programs, this distinct group of recognizable 
professionals will be referred to, at the DoD level, as the ``Special 
Victim Investigation and Prosecution (SVIP)'' capability.
    b. Authority: 10 U.S.C. chapter 47, the UCMJ; 10 U.S.C. 113, 1034, 
1044, 1044e 1058, 1059, and 1408; 18 U.S.C. 1512 through 1514; sections 
1701 and 1716 of Public Law 113-66, which strengthened the rights of 
victims of crimes committed under the UCMJ, and designated SVC/VLC for 
victims of covered offenses; section 573 of Public Law 112-239, which 
required the Military Services to establish a special victim capability 
comprised of specially trained investigators, judge advocates, 
paralegals, and victim witness assistance personnel to support victims 
of covered offenses; and section 533 of the Carl Levin and Howard P. 
``Buck'' McKeon National Defense Authorization Act for Fiscal Year 
2015, which extended eligibility for SVC/VLC services to members of a 
reserve component of the armed forces.

II. Summary of the Major Provisions of the Regulatory Action in 
Question

    This rule describes the responsibilities that the USD(P&R), 
Inspector General of the Department of Defense, and DoD component heads 
have when dealing with the procedures described in the regulatory text. 
The rule also discusses procedures involving local responsible 
officials, comprehensive information and services to be provided to 
victims and witnesses, special victim investigation and prosecution 
(SVIP) capability, legal assistance for crime victims, and special 
victims' counsel programs.

III. Costs and Benefits

    The combined cost of annual reporting requirements to the DoD and 
Military Services related to DoD victim and witness assistance programs 
(VWAP) is approximately $12,317. DoD VWAP programs are administered 
directly by the DoD Components, including the Military Services, at 
local installations and regional commands worldwide.
    (1) A complete victim and witness assistance policy, to ensure the 
consistent and effective management of DoD victim and witness 
assistance programs operated by DoD Components. The proposed rule 
updates and replaces DoD Directive 1030.01, ``Victim and Witness 
Assistance'' (April 13, 2004) (available at http://www.dtic.mil/whs/directives/corres/pdf/103001p.pdf), and DoD Instruction 1030.2 ``Victim 
and Witness Procedures'' (June 4, 2004) (available at http://www.dtic.mil/whs/directives/corres/pdf/103002p.pdf), to implement 
statutory requirements for the DoD victim assistance programs

[[Page 29572]]

under the a single DoD instruction., which revises the rights for crime 
victims of offenses committed under the UCMJ, requires the Military 
Services to create enforcement mechanisms, provides for legal 
assistance for crime victims entitled to legal services, requires that 
Military Services to provide SVC/VLC to assist victims of covered 
offenses, and further implements the SVIP capability, which provides 
enhanced support to victims of sexual assault, serious domestic 
violence, and child abuse offenses. requiring each Military Service to 
establish a special victim capability comprised of specially trained 
criminal investigators, judge advocates, paralegals, and victim witness 
personnel to enhance support to victims of sexual assault, serious 
domestic violence, and child abuse offenses.
    VWAP provides guidance for assisting victims and witnesses of crime 
from initial contact through investigation, prosecution, confinement, 
and release, until the victim specifies to the local responsible 
official that he or she no longer requires or desires services. 
Particular attention is paid to victims of serious and violent crime, 
including child abuse, domestic violence, and sexual assault.
    (2) Strengthens the rights of crime victims in the military justice 
system and requires the establishment mechanisms for enforcement of 
these rights in each Military Department, in accordance with section 
1701 of Public Law 113-66. These provisions ensure victims have a right 
to be reasonably heard at public hearings concerning the continuation 
of confinement before the trial of the accused, preliminary hearings 
under section 832 (Article 32) of the UCMJ, and court-martial 
proceedings relating to the Military Rules of Evidence (M.R.E.) 412, 
513, and 514 of the Manual for Courts-Martial (MCM) (available at 
http://www.apd.army.mil/pdffiles/mcm.pdf) and that all victims are 
treated with fairness and respect for their dignity and privacy.
    (3) Orients victims and witnesses to the military justice system, 
about the military criminal justice process, on the role of the victim 
or witness in the process, and how the victim or witness can obtain 
additional information concerning the process and the case.
    (4) Provides timely notification of information and assistance 
available to victims and witnesses of crime from initial contact 
through investigation, prosecution, and confinement.
    (5) Enables victims to confer with the attorney for the U.S. 
Government in the case before preliminary and trial proceedings, and to 
express their views to the commander or convening authority as to 
disposition of the case.
    (6) Assists victims with prompt return of personal property held as 
evidence during a military criminal investigation and court-martial.
    (7) Provides eligible victims and military families with access to 
transitional compensation in accordance with Federal law and DoD 
Instruction 1342.24, ``Transitional Compensation for Abused 
Dependents,'' May 23, 1995 (available at http://www.dtic.mil/whs/directives/corres/pdf/134224p.pdf).
    (8) Ensures victims are aware of procedures to receive restitution 
as provided in accordance with State, local, and federal crime victims' 
funds, and the procedures for applying for such funds. Restitution may 
also be available from, or offered by, an accused as a condition in the 
terms of a pretrial agreement, during the sentencing process, as a part 
of post-trial mitigation under Rule of Court-Martial 1105, of the MCM. 
Under Article 139, UCMJ, victims may also be provided with relief if 
the property loss or damage resulted from wrongful taking or willful 
damage by a member of the Armed Forces due to riotous, violent, or 
disorderly conduct.
    (9) Mandates compliance with DoD standards for victim assistance 
services in the military community established in DoD Instruction 
6400.07 ``Standards for Victim Assistance Services in the Military 
Community,'' November 25, 2013 (available at http://www.dtic.mil/whs/directives/corres/pdf/640007p.pdf).
    (10) Provides that crime victims who are entitled to military legal 
assistance under sections 1044 and 1044e of title 10, U.S.C., and as 
further prescribed by the Military Departments and National Guard 
Bureau policies, may consult with a military legal assistance attorney.
    (11) Provides legal counsel, known as Special Victims' Counsel or 
Victims' Legal Counsel (SVC/VLC), to assist victims of alleged sex-
related offenses in accordance with Articles 120, 120a, 120b, 120c, and 
125 of the UCMJ, and attempts to commit any of these offenses under 
Article 80 of the UCMJ, regardless of whether the report of the offense 
is restricted or unrestricted. Individuals entitled to SVC/VLC 
representation include any of the following:
    (a) Individuals eligible for military legal assistance under 
sections 1044 and 1044e of title 10, U.S.C., and as further prescribed 
by the Military Departments' and National Guard Bureau policies.
    (b) Members of a reserve component of the armed forces, in 
accordance with section 533 of the National Defense Authorization Act 
for Fiscal Year 2015, and as further prescribed by the Military 
Departments and National Guard Bureau policies.
    (12) Establishes a Special Victim Investigation and Prosecution 
(SVIP) capability in each Military Service comprised of specially 
trained criminal investigators, judge advocates, paralegals, and victim 
and witness assistance personnel to work with specially trained 
military criminal investigators to support victims of adult sexual 
assault, domestic violence, and child abuse. To de-conflict with the 
names of SVC/VCL programs, this distinct group of recognizable 
professionals will be referred to as SVIP at the DoD level. Ensures 
SVIP training programs meet established DoD and Military Service 
standards for special prosecutors, paralegal, VWAP coordinators and 
providers, and legal support personnel.
    (13) Establishes local Victim and Witness Assistance Councils, when 
practicable, at each military installation, to ensure victim and 
witness service providers follow an interdisciplinary approach. This 
will ensure effective coordination between VWAP coordinators and DoD 
personnel providing related services, including sexual assault 
prevention and response coordinators, family advocacy personnel, 
military treatment facility health care providers and emergency room 
personnel, family service center personnel, chaplains, military equal 
opportunity personnel, judge advocates, SVC/VLCs, unit commanding 
officers, corrections personnel, and other persons designated by the 
Secretaries of the Military Departments.
    (14) Maintains annual reporting requirements on assistance provided 
across the DoD to victims and witnesses of crime, which will be 
provided to the Department of Justice Office of Victims of Crime and 
the Bureau of Justice Statistics.

IV. Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting

[[Page 29573]]

flexibility. This rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget (OMB).

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(Pub. L. 104-4) requires agencies assess anticipated costs and benefits 
before issuing any rule whose mandates require spending in any 1 year 
of $100 million in 1995 dollars, updated annually for inflation. In 
2014, that threshold is approximately $141 million. This document will 
not mandate any requirements for State, local, or tribal governments, 
nor will it affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    The Department of Defense certifies that this proposed rule is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it 
would not, if promulgated, have a significant economic impact on a 
substantial number of small entities. Therefore, the Regulatory 
Flexibility Act, as amended, does not require DoD to prepare a 
regulatory flexibility analysis.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    This proposed rule does not impose reporting or recordkeeping 
requirements under the Paperwork Reduction Act of 1995.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct requirement costs on State 
and local governments, preempts State law, or otherwise has Federalism 
implications. This proposed rule will not have a substantial effect on 
State and local governments.

List of Subjects in 32 CFR Part 114

    Child welfare, Military law, Uniform Code of Military Justice.

    Accordingly, 32 CFR part 114 is proposed to be added to read as 
follows:

PART 114--VICTIM AND WITNESS ASSISTANCE

Sec.
114.1 Purpose.
114.2 Applicability.
114.3 Definitions.
114.4 Policy.
114.5 Responsibilities.
114.6 Procedures.

    Authority: 10 U.S.C. chapter 47, 10 U.S.C. 113, 1034, 1044, 
10443, 1058, 1059, and 1408, 18 U.S.C. 1512 through 1514, sections 
1701 and 1706 of Pub. L. 113-66, 127 Stat. 672, section 573 of Pub. 
L. 112-239, 126 Stat. 1632, and section 533 of Pub. L. 113-291, 128 
Stat. 3292.


Sec.  114.1  Purpose.

    This part:
    (a) Establishes policy, assigns responsibilities, and prescribes 
procedures to assist victims and witnesses of crimes committed in 
violation of 10 U.S.C. chapter 47, also known and referred to in this 
part as the Uniform Code of Military Justice (UCMJ).
    (b) Establishes policy, assigns responsibilities, and prescribes 
procedures for:
    (1) The rights of crime victims under the UCMJ and required 
mechanisms for enforcement, in accordance with section 1701 of Public 
Law 113-66, ``National Defense Authorization Act for Fiscal Year 
2014,'' and in accordance with DoD standards for victim witness 
assistance services in the military community established in DoD 
Instruction 6400.07, ``Standards for Victim Assistance Services in the 
Military Community,'' (available at http://www.dtic.mil/whs/directives/corres/pdf/640007p.pdf).
    (2) Providing timely notification of information and assistance 
available to victims and witnesses of crime from initial contact 
through investigation, prosecution, confinement, and release, in 
accordance with 18 U.S.C. 1512 through 1514, 32 CFR part 286, DoD 
Instruction 1325.07, ``Administration of Military Correctional 
Facilities and Clemency and Parole Authority,'' (available at http://www.dtic.mil/whs/directives/corres/pdf/132507p.pdf), DoD Instruction 
1342.24, ``Transitional Compensation for Abused Dependents,'' 
(available at http://www.dtic.mil/whs/directives/corres/pdf/134224p.pdf), DoD Directive 7050.06, ``Military Whistleblower 
Protection,'' (available at http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf), and 10 U.S.C. 113, 1034, 1059, and 1408; and section 
1706 of Public Law 113-66.
    (3) Annual reporting requirements on assistance provided across the 
DoD to victims and witnesses of crime.
    (c) Provides for legal assistance for crime victims entitled to 
such services pursuant to 10 U.S.C. 1044, and 10 U.S.C. 1565b, and as 
further prescribed by the Military Departments and National Guard 
Bureau policies.
    (d) Incorporates section 573 of Public Law 112-239, ``The National 
Defense Authorization Act for Fiscal Year 2013,'' January 2, 2013, 
requiring each Military Service to establish a special victim 
capability comprised of specially trained criminal investigators, judge 
advocates, paralegals, and victim and witness assistance personnel to 
support victims of covered special victim offenses. To de-conflict with 
SVC/VCL programs, this distinct group of recognizable professionals 
will be referred to, at the DoD level, as the Special Victim 
Investigation and Prosecution (SVIP) capability.
    (e) Incorporates the victim and witness portion of the special 
victim capability in accordance with) DoDI 5509.19, ``Establishment of 
Special Victim Investigation and Prosecution (SVIP) Capability within 
the Military Criminal Investigative Organizations (MCIOs),'' February 
3, 2015 (available at http://www.dtic.mil/whs/directives/corres/pdf/550519p.pdf), and Directive-type Memorandum (DTM) 14-003, ``DoD 
Implementation of Special Victim Capability (SVC) Prosecution and Legal 
Support,'' February 12, 2014, Incorporating Change 1, February 5, 2015
    (f) Incorporates section 1716 of Public Law 113-66, and section 533 
of the National Defense Authorization Act for 2005 (NDAA 2005), 
requiring the Military Services to provide legal counsel, known as 
Special Victims' Counsel or Victims' Legal Counsel, (SVC/VLC) to assist 
victims of alleged sex-related offenses in accordance with Articles 
120, 120a, 120b, 120c, 125 of the UCMJ, and attempts to commit any of 
these offenses under Article 80 of the UCMJ, who are eligible for legal 
assistance in accordance with 10 U.S.C. 1044 and 1044e, and as further 
prescribed by the Military Departments and National Guard Bureau 
policies.


Sec.  114.2  Applicability.

    This part applies to OSD, the Military Departments, the Office of 
the Chairman of the Joint Chiefs of Staff and the Joint Staff, the 
Combatant Commands, the Office of the Inspector General of the 
Department of Defense, the Defense Agencies, the DoD Field Activities, 
and all other organizational entities within the DoD (referred to 
collectively in this part as the ``DoD Components'').


Sec.  114.3  Definitions.

    Unless otherwise noted, these terms and their definitions are for 
the purpose of this part:
    Central repository. A headquarters office, designated by Service 
regulation, to serve as a clearinghouse of

[[Page 29574]]

information on a confinee's status and to collect and report data on 
the delivery of victim and witness assistance, including notification 
of confinee status changes.
    Confinement facility victim/witness assistance coordinator. A staff 
member at a military confinement facility who is responsible for 
notifying victims and witnesses of changes in a confinee's status and 
reporting those notifications to the central repository.
    Court proceeding. A preliminary hearing held pursuant to Article 32 
of the UCMJ; a hearing under Article 39a of the UCMJ; a court-martial; 
a military presentencing hearing; or a military appellate hearing. The 
providence (guilty plea) inquiry between the military judge and the 
accused when a pretrial agreement has been entered into between the 
accused and the convening authority, and conferences, such as those 
under Military Rule of Evidence 802, which occur between attorneys and 
the military judge, or between attorneys and Article 32 of the UCMJ 
preliminary hearing officers, or other official, are not court 
proceedings for purposes of this part. If all or part of a court 
proceeding has been closed to the public by the military judge, 
preliminary hearing officer, or other official, the victims and 
witnesses will still be notified of the closed hearing as provided in 
this part, and of the reasons for the closure. In such a case, the 
military judge, preliminary hearing officer, or other official may 
place reasonable limits on the reasons disclosed, if such limits are 
necessary to protect the safety of any person, the fairness of the 
proceeding, or are otherwise in the interests of national security.
    DoD Component responsible official. Person designated by each DoD 
Component head to be primarily responsible in the DoD Component for 
coordinating, implementing, and managing the victim and witness 
assistance program established by this part.
    Equal opportunity. The right of all persons to participate in, and 
benefit from, programs and activities for which they are qualified. 
These programs and activities will be free from social, personal, or 
institutional barriers that prevent people from rising to the highest 
level of responsibility possible. Persons will be evaluated on 
individual merit, fitness, and capability, regardless of race, color, 
sex, national origin, or religion.
    Local responsible official. Person designated by the DoD Component 
responsible official who has primary responsibility for identifying 
victims and witnesses of crime and for coordinating the delivery of 
services described in this part through a multidisciplinary approach. 
The position or billet of the local responsible official will be 
designated in writing by Service regulation. The local responsible 
official may delegate responsibilities in accordance with this part.
    Local Victim and Witness Assistance Council. A regular forum held 
at the DoD installation, or regional command level, that promotes 
efficiencies, coordinates victim assistance-related programs, and 
assesses the implementation of victim assistance standards and victim 
assistance-related programs, in accordance with this part, DoD 
Instruction 6400.07, and any other applicable Service guidance.
    Military Department Clemency and Parole Board. In accordance with 
DoD Instruction 1325.07, a board which assists the Military Department 
Secretary as the primary authority for administration and execution of 
clemency, parole, and mandatory supervised release policy and programs.
    Military Services. Refers to the Army, the Navy, the Air Force, and 
the Marine Corps, the Coast Guard, and the Reserve Components, which 
include the Army and Air National Guards of the United States.
    Protected communication. (1) Any lawful communication to a Member 
of Congress or an IG.
    (2) A communication in which a member of the Armed Forces 
communicates information that the member reasonably believes evidences 
a violation of law or regulation, including a law or regulation 
prohibiting sexual harassment or unlawful discrimination, gross 
mismanagement, a gross waste of funds or other resources, an abuse of 
authority, or a substantial and specific danger to public health or 
safety, when such communication is made to any of the following:
    (i) A Member of Congress, an IG, or a member of a DoD audit, 
inspection, investigation, or law enforcement organization.
    (ii) Any person or organization in the chain of command; or any 
other person designated pursuant to regulations or other established 
administrative procedures to receive such communications.
    Reprisal. Taking or threatening to take an unfavorable personnel 
action, or withholding or threatening to withhold a favorable personnel 
action, for making or preparing to make a protected communication.
    Restricted reporting. Defined in DoD Directive 6495.01, ``Sexual 
Assault Prevention and Response (SAPR) Program'' (available at http://www.dtic.mil/whs/directives/corres/pdf/649501p.pdf).
    Sexual assault forensic examiner. A health care provider who has 
specialized training through his or her military service, or has a 
nationally recognized certification to perform medical examinations to 
evaluate and collect evidence related to a sexual assault.
    Special victim investigation and prosecution (SVIP) capability. In 
accordance with section 573 of Public Law 112-239 and DoDI 5505.09, 
``Establishment of Special Victim Investigation and Prosecution (SVIP) 
Capability within the Military Criminal Investigative Organizations 
(MCIOs),'' February 3, 2015 (available at http://www.dtic.mil/whs/directives/corres/pdf/550519p.pdf), and Directive-type Memorandum 
(DTM), ``DoD Implementation of Special Victim Capability (SVC) 
Prosecution and Legal Support,'' February 12, 2014, Incorporating 
Change 1, February 5, 2015 (available at http://www.dtic.mil/whs/directives/corres/pdf/DTM-14-003.pdf), a distinct, recognizable group 
of appropriately skilled professionals, consisting of specially trained 
and selected military criminal investigative organization (MCIO) 
investigators, judge advocates, victim witness assistance personnel, 
and administrative paralegal support personnel who work collaboratively 
to:
    (1) Investigate allegations of adult sexual assault, domestic 
violence involving sexual assault and/or aggravated assault with 
grievous bodily harm, and child abuse involving sexual assault and/or 
aggravated assault with grievous bodily harm.
    (2) Provide support for the victims of such covered offenses.
    Special victim offenses. The designated criminal offenses of sexual 
assault, domestic violence involving sexual assault, and/or aggravated 
assault with grievous bodily harm, and child abuse involving sexual 
assault and/or aggravated assault with grievous bodily harm, in 
accordance with the UCMJ. Sexual assault includes offenses under 
Articles 120 (rape and sexual assault general), 120b (rape and sexual 
assault of a child), and 120c (other sexual misconduct), or forcible 
sodomy under Article 25 of the UCMJ or attempts to commit such offenses 
under Article 80 of the UCMJ. Aggravated assault with grievous bodily 
harm, in relation to domestic violence and child abuse cases, includes 
an offense as specified under Article 128 of the UCMJ (assault). The 
Military Services and National Guard Bureau may deem other UCMJ

[[Page 29575]]

offenses appropriate for SVIP support, based on the facts and 
circumstances of specific cases, and the needs of victims.
    Special Victims' Counsel/Victims' Legal Counsel (SVC/VLC). Legal 
counsel provided to assist eligible victims of alleged sex-related 
offenses pursuant to Article 120, 120a, 120b, 120c, and 125 of the UCMJ 
and attempts to commit any of these offenses under Article 80 of the 
UCMJ (or other offenses as defined by the Military Services), in 
accordance with 10 U.S.C. 1044, 1044e, and 1565b; section 1716 of 
Public Law 113-66; and section 533 of the NDAA 2005.
    Specially trained prosecutors. Experienced judge advocates detailed 
by Military Department Judge Advocate Generals (TJAGs), the Staff Judge 
Advocate to the Commandant of the Marine Corps, or other appropriate 
authority to litigate or assist with the prosecution of special victim 
cases and provide advisory support to MCIO investigators and 
responsible legal offices. Before specially trained prosecutors are 
detailed, their Service TJAG, Staff Judge Advocate to the Commandant of 
the Marine Corps, or other appropriate authority has determined they 
have the necessary training, maturity, and advocacy and leadership 
skills to carry out those duties.
    Unrestricted reporting. Defined in DoD Directive 6495.01 (available 
at http://www.dtic.mil/whs/directives/corres/pdf/649501p.pdf).
    Victim. A person who has suffered direct physical, emotional, or 
pecuniary harm as a result of the commission of a crime committed in 
violation of the UCMJ. Such individuals will include, but are not 
limited to:
    (1) Service members and their dependents.
    (2) When stationed outside the continental United States (CONUS), 
DoD civilian employees and contractors and their family members. This 
designation makes services, such as medical care in military medical 
facilities, available to them that are not available to DoD civilian 
employees, contractors, and their family members in stateside 
locations.
    (3) When a victim is under 18 years of age, incompetent, 
incapacitated, or deceased, the term includes one of the following (in 
order of precedence): A spouse, legal guardian, parent, child, sibling, 
another family member, or another person designated by the court or the 
DoD Component responsible official, or designee. For a victim that is 
an institutional entity, an authorized representative of the entity. 
Federal Departments and State and local agencies, as entities, are not 
eligible for services available to individual victims.
    Victim assistance personnel. Personnel who are available to provide 
support and assistance to victims of crime and harassment consistent 
with their assigned responsibilities and in accordance with this part. 
They include part-time, full-time, collateral duty, and other 
authorized individuals, and may be domestic violence or sexual assault 
prevention and response coordinators (to include unit and uniformed 
victim advocates), Sexual Assault Response Coordinators, victim-witness 
assistance personnel, or military equal opportunity advisors.
    Victim assistance-related programs. The SAPR Program; FAP; and the 
VWAP. A complainant under the DoD MEO Program may be referred by the 
MEO office to one of the victim assistance-related programs for 
additional assistance.
    Witness. A person who has information or evidence about a criminal 
offense within the investigative jurisdiction of a DoD Component and 
who provides that knowledge to a DoD Component. When the witness is a 
minor, that term includes a parent or legal guardian, or other person 
responsible for the child. The term does not include a defense witness 
or an individual involved in the crime as an alleged perpetrator or 
accomplice.


Sec.  114.4  Policy.

    It is DoD policy that:
    (a) The DoD is committed to protecting the rights of victims and 
witnesses of crime and supporting their needs in the criminal justice 
process. The DoD Components will comply with all statutory and policy 
mandates and will take all additional actions within the limits of 
available resources to assist victims and witnesses of crime without 
infringing on the constitutional or other legal rights of a suspect or 
an accused.
    (b) DoD victim assistance services will focus on the victim and 
will respond, protect, and care for the victim from initiation of a 
report through offense disposition, if applicable, and will continue 
such support until the victim specifies to the local responsible 
official that he or she no longer requires or desires services.
    (c) Each DoD Component will provide particular attention and 
support to victims of serious, violent crimes, including child abuse, 
domestic violence, and sexual assault. In order to ensure the safety of 
victims, and their families, victim assistance personnel shall respect 
the dignity and the privacy of persons receiving services, and 
carefully observe any safety plans and military or civilian protective 
orders in place.
    (d) Victim assistance services must meet DoD competency, ethical, 
and foundational standards established in DoD Instruction 6400.07, 
``Standards for Victim Assistance Services in the Military Community,'' 
(available at http://www.dtic.mil/whs/directives/corres/pdf/640007p.pdf).
    (e) Making or preparing to make or being perceived as making or 
preparing to make a protected communication, to include reporting a 
violation of law or regulation, including a law or regulation 
prohibiting rape, sexual assault, or other sexual misconduct, in 
violation of 10 U.S.C. 920 through 920c, sexual harassment, or unlawful 
discrimination, in accordance with 10 U.S.C. 1034, section 1709 of 
Public Law 113-66, and DoD Directive 7050.06, ``Military Whistleblower 
Protection,'' (available at http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf), shall not result in reprisal activity from management 
officials.
    (f) This part is not intended to, and does not, create any 
entitlement, cause of action, or defense at law or in equity, in favor 
of any person or entity arising out of the failure to accord to a 
victim or a witness the assistance outlined in this part. No 
limitations are hereby placed on the lawful prerogatives of the DoD or 
its officials.


Sec.  114.5  Responsibilities.

    (a) The Under Secretary of Defense for Personnel and Readiness 
(USD(P&R)):
    (1) Establishes overall policy for victim and witness assistance 
and monitors compliance with this part.
    (2) Approves procedures developed by the Secretaries of the 
Military Departments that implement and are consistent with this part.
    (3) Maintains the DoD Victim Assistance Leadership Council, in 
accordance with DoD Instruction 6400.07, which advises the Secretary of 
Defense on policies and practices related to the provision of victim 
assistance and provides a forum that promotes efficiencies, coordinates 
victim assistance-related policies, and assesses the implementation of 
victim assistance standards across the DoD's victim assistance-related 
programs.
    (b) The Director, DoD Human Resources Activity, through the Defense 
Manpower Data Center, and under the authority, direction, and control 
of the USD(P&R), assists in formulating a data collection mechanism to 
track and report victim notifications from initial contact through 
investigation to disposition, to include prosecution, confinement, and 
release.

[[Page 29576]]

    (c) The Inspector General of the Department of Defense (IG DoD):
    (1) Establishes investigative policy and performs appropriate 
oversight reviews of the management of the Victim Witness Assistance 
Program (VWAP) by the DoD military criminal investigative organizations 
(MCIOs). This is not intended to substitute for the routine managerial 
oversight of the program provided by the MCIOs, the USD(P&R), the DoD 
Component heads, the DoD Component responsible officials, or the local 
responsible officials.
    (2) Investigates and oversees DoD Component Inspector General 
investigations of allegations or reprisal for making or preparing to 
make or being perceived as making or preparing to make a protected 
communication, in accordance with 10 U.S.C. 1034, and section 573 of 
Public Law 112-239.
    (c) The DoD Component heads:
    (1) Ensure compliance with this part, and establish policies and 
procedures to implement the VWAP within their DoD Components.
    (2) Designate the DoD Component responsible official for the VWAP, 
who will report annually to the USD(P&R) using DD Form 2706, ``Victim 
and Witness Assistance Annual Report.''
    (3) Provide for the assignment of personnel in sufficient numbers 
to enable those programs identified in the 10 U.S.C. 113 note to be 
carried out effectively.
    (4) Designate a central repository for confinee information for 
each Military Service, and establish procedures to ensure victims who 
so elect are notified of changes in inmate status.
    (5) Maintain a Victim and Witness Assistance Council, when 
practicable, at each military installation, to ensure victim and 
witness service providers follow an interdisciplinary approach. These 
providers may include chaplains, sexual assault prevention and response 
personnel, family advocacy personnel, military treatment facility 
health care providers and emergency room personnel, family service 
center personnel, military equal opportunity personnel, judge 
advocates, SVC/VLCs, unit commanding officers, corrections personnel, 
and other persons designated by the Secretaries of the Military 
Departments.
    (6) Maintain training programs to ensure Victim Witness Assistance 
Program (VWAP) providers receive instruction to assist them in 
complying with this part. Training programs will include specialized 
training for VWAP personnel assigned to the SVIP capability, in 
accordance with Sec.  114.6(c).
    (7) Designate local responsible officials in writing in accordance 
with Military Service regulations and Sec.  114.6(a)(1).
    (8) Maintain oversight procedures to ensure establishment of an 
integrated support system capable of providing the services outlined in 
Sec.  114.6, and meet the competency, ethical, and foundational 
standards established in DoD Instruction 6400.07. Such oversight may 
include coverage by DoD Component Inspectors General, staff assistance 
visits, surveys, and status reports.
    (9) Establish mechanisms for ensuring that victims are notified of 
and afforded the rights specified in the UCMJ, including the rights 
specified in 10 U.S.C. 806b (Article 6b) and Rule of Court-Martial 
(R.C.M.) 306 in title 10 of the United States Code.
    (10) Establish mechanisms for the enforcement of the rights 
specified in the UCMJ, including mechanisms for the application for 
such rights and for consideration and disposition of applications for 
such rights. At a minimum, such enforcement mechanisms will include the 
designation of an authority within each Military Service to receive and 
investigate complaints relating to the provision or violation of such 
rights and the establishment of disciplinary sanctions for responsible 
military and civilian personnel who wantonly fail to comply with the 
requirements relating to such rights.


Sec.  114.6  Procedures.

    (a) Local responsible officials. Local responsible officials:
    (1) Will coordinate to ensure that systems are in place at the 
installation level to provide information on available benefits and 
services, assist in obtaining those benefits and services, and provide 
other services required by this section.
    (2) May delegate their duties as appropriate, but retain 
responsibility to coordinate the delivery of required services.
    (3) May use an interdisciplinary approach involving the various 
service providers listed in paragraph (b)(7) of this section, to 
coordinate the delivery of information and services to be provided to 
victims and witnesses.
    (b) Comprehensive information and services to be provided to 
victims and witnesses--(1) Rights of crime victims. Personnel directly 
engaged in the prevention, detection, investigation, and disposition of 
offenses, to include courts-martial, including law enforcement and 
legal personnel, commanders, trial counsel, and staff judge advocates, 
will ensure that victims are accorded their rights in accordance with 
Article 6b of UCMJ and section 1701 of Public Law 113-66. A crime 
victim has the right to:
    (i) Be reasonably protected from the accused offender.
    (ii) Be provided with reasonable, accurate, and timely notice of:
    (A) A public hearing concerning the continuation of confinement 
before the trial of the accused.
    (B) A preliminary hearing pursuant to section 832 of the UCMJ 
(Article 32) relating to the offense.
    (C) A court-martial relating to the offense.
    (D) A public proceeding of the Military Department Clemency and 
Parole Board hearing relating to the offense.
    (E) The release or escape of the accused, unless such notice may 
endanger the safety of any person.
    (iii) Be present at, and not be excluded from any public hearing or 
proceeding described in paragraph (b)(1)(ii) of this section, unless 
the military judge or preliminary hearing officer of a preliminary 
hearing pursuant to Section 832, UCMJ, (Article 32), after receiving 
clear and convincing evidence, determines that testimony by the victim 
would be materially affected if the victim heard that hearing or 
proceeding.
    (iv) Be reasonably heard personally or through counsel at:
    (A) A public hearing concerning the continuation of confinement 
before the court-martial of the accused.
    (B) A preliminary hearing pursuant to section 832 (Article 32) of 
the UCMJ and court-martial proceedings relating to the Military Rules 
of Evidence (M.R.E.) 412, 513, and 514 of the Manual for Courts-Martial 
(MCM) in title 10 of the United States Code, also referred to in this 
part as the MCM, and regarding other rights provided by statute, 
regulation, or case law.
    (C) A public sentencing hearing relating to the offense.
    (D) A public Military Department Clemency and Parole Board hearing 
relating to the offense. A victim may make a personal appearance before 
the Military Department Clemency and Parole Board or submit an audio, 
video, or written statement.
    (v) Confer with the attorney for the U.S. Government in the case. 
This will include the reasonable right to confer with the attorney for 
U.S. Government at any proceeding described in paragraph (b)(1)(ii) of 
this section.
    (A) Crime victims who are entitled to legal assistance may consult 
with a military legal assistance attorney in

[[Page 29577]]

accordance with paragraph (c)(1) of this section.
    (B) Victims of an offense under Articles 120, 120a, 120b, or 120c 
or forcible sodomy under the UCMJ or attempts to commit such offenses 
under Article 80 of the UCMJ, who are entitled to legal assistance in 
accordance with 10 U.S.C. 1044, may consult with a SVC/VLC in 
accordance with paragraph (d)(1) of this section. Victims of these 
covered offenses shall be informed by a sexual assault response 
coordinator (SARC), victim advocate, victim witness liaison, military 
criminal investigator, trial counsel, or other local responsible 
official that they have the right to consult with a SVC/VLC as soon as 
they seek assistance from the individual in accordance with 10 U.S.C. 
1565b, and as otherwise authorized by Military Department and National 
Guard Bureau policy.
    (C) All victims may also elect to seek the advice of a private 
attorney, at their own expense.
    (vi) Receive restitution as provided in accordance with State and 
Federal law.
    (vii) Proceedings free from unreasonable delay.
    (viii) Be treated with fairness and respect for his or her dignity 
and privacy.
    (ix) Express his or her views to the commander or convening 
authority as to disposition of the case.
    (2) Initial information and services. (i) Immediately after 
identification of a crime victim or witness, the local responsible 
official, law enforcement officer, or criminal investigation officer 
will explain and provide information to each victim and witness, as 
appropriate, including:
    (A) The DD Form 2701, ``Initial Information for Victims and 
Witnesses of Crime,'' or computer-generated equivalent will be used as 
a handout to convey basic information. Specific points of contact will 
be recorded on the appropriate form authorized for use by the 
particular Military Service.
    (B) Proper completion of this form serves as evidence that the 
local responsible official or designee, law enforcement officer, or 
criminal investigative officer notified the victim or witness of his or 
her rights, as described in paragraph (b)(1) of this section. The date 
the form is given to the victim or witness shall be recorded by the 
delivering official. This serves as evidence the victim or witness was 
timely notified of his or her statutory rights.
    (ii) The local responsible official will explain the form to 
victims and witnesses at the earliest opportunity. This will include:
    (A) Information about available military and civilian emergency 
medical and social services, victim advocacy services for victims of 
domestic violence or sexual assault, and, when necessary, assistance in 
securing such services.
    (B) Information about restitution or other relief a victim may be 
entitled to, and the manner in which such relief may be obtained.
    (C) Information to victims of intra-familial abuse offenses on the 
availability of limited transitional compensation benefits and possible 
entitlement to some of the active duty Service member's retirement 
benefits pursuant to 10 U.S.C. 1059 and 1408 and DoD Instruction 
1342.24 ``Transitional Compensation for Abused Dependents,'' May 23, 
1995 (available at http://www.dtic.mil/whs/directives/corres/pdf/134224p.pdf).
    (D) Information about public and private programs available to 
provide counseling, treatment, and other support, including available 
compensation through federal, State, and local agencies.
    (E) Information about the prohibition against intimidation and 
harassment of victims and witnesses, and arrangements for the victim or 
witness to receive reasonable protection from threat, harm, or 
intimidation from an accused offender and from people acting in concert 
with or under the control of the accused offender.
    (F) Information concerning military and civilian protective orders, 
as appropriate.
    (G) Information about the military criminal justice process, the 
role of the victim or witness in the process, and how the victim or 
witness can obtain additional information concerning the process and 
the case in accordance with section 1704 of Public Law 113-66. This 
includes an explanation of:
    (1) Victim's roles and rights during the defense counsel 
interviews, preliminary hearings pursuant to section 832, UCMJ (Article 
32) and section 1702 of Public Law 113-66.
    (2) Victim's rights when action is taken by the convening authority 
pursuant to Article 60 of the UCMJ process, and during the post-trial/
clemency phase of the process in accordance with section 1706 of Public 
Law 113-66.
    (H) If necessary, assistance in contacting the people responsible 
for providing victim and witness services and relief.
    (I) If necessary, how to file a military whistleblower complaint 
with an Inspector General regarding suspected reprisal for making, 
preparing to make, or being perceived as making or preparing to make a 
protected communication in accordance with 10 U.S.C. 1034 and DoD 
Directive 7050.06,.
    (J) Information about the victim's right to seek the advice of an 
attorney with respect to his or her rights as a crime victim pursuant 
to federal law and DoD policy. This includes the right of Service 
members and their dependents to consult a military legal assistance 
attorney in accordance with paragraph (c)(1) of this section, or a SVC/
VLC in accordance with paragraph (d)(1) of this section.
    (3) Information to be provided during investigation of a crime. (i) 
If a victim or witness has not already received the DD Form 2701 from 
the local responsible official or designee, it will be provided by law 
enforcement officer or investigator.
    (ii) Local responsible officials or law enforcement investigators 
and criminal investigators will inform victims and witnesses, as 
appropriate, of the status of the investigation of the crime, to the 
extent providing such information does not interfere with the 
investigation.
    (4) Information and services to be provided concerning the 
prosecution of a crime. (i) The DD Form 2702, ``Court-Martial 
Information for Victims and Witnesses of Crime,'' will be used as a 
handout to convey basic information about the court-martial process. 
The date it is given to the victim or witness shall be recorded by the 
delivering official. If applicable, the following will be explained and 
provided by the U.S. Government attorney, or designee, to victims and 
witnesses:
    (A) Notification of crime victims' rights, to include victim's 
right to express views as to disposition of case to the responsible 
commander and convening authority, in accordance with Rule for Court-
Martial 306 of the MCM.
    (B) Notification of the victim's right to seek the advice of an 
attorney with respect to his or her rights as a crime victim pursuant 
to federal law and DoD policy. This includes the right of service 
members and their dependents to consult a military legal assistance 
attorney in accordance with paragraph (c)(1) of this section or a SVC/
VLC in accordance with paragraph (d)(1) of this section.
    (C) Consultation concerning the decisions to prefer or not prefer 
charges against the accused offender and the disposition of the offense 
if other than a trial by court-martial.
    (D) Consultation concerning the decision to refer or not to refer 
the charges against the accused offender to trial by court-martial and 
notification of the decision to pursue or not pursue

[[Page 29578]]

court-martial charges against the accused offender.
    (E) Notification of the initial appearance of the accused offender 
before a reviewing officer or military judge at a public pretrial 
confinement hearing or at a preliminary hearing in accordance with 
section 832 (Article 32) of the UCMJ.
    (F) Notification of the release of the suspected offender from 
pretrial confinement.
    (G) Explanation of the court-martial process on referral to trial.
    (H) Before any court proceedings (as defined to include preliminary 
hearings pursuant to section 832 (Article 32) of the UCMJ, pretrial 
hearings pursuant to Article 39(a) of the UCMJ, trial, and 
presentencing hearings), assistance in obtaining available services 
such as transportation, parking, child care, lodging, and courtroom 
translators or interpreters that may be necessary to allow the victim 
or witness to participate in court proceedings.
    (I) During the court proceedings, a private waiting area out of the 
sight and hearing of the accused and defense witnesses. In the case of 
proceedings conducted aboard ship or in a deployed environment, provide 
a private waiting area to the greatest extent practicable.
    (J) Notification of the scheduling, including changes and delays, 
of a preliminary hearing pursuant to section 832 (Article 32) of the 
UCMJ, and each court proceeding the victim is entitled to or required 
to attend will be made without delay. On request of a victim or witness 
whose absence from work or inability to pay an account is caused by the 
crime or cooperation in the investigation or prosecution, the employer 
or creditor of the victim or witness will be informed of the reasons 
for the absence from work or inability to make timely payments on an 
account. This requirement does not create an independent entitlement to 
legal assistance or a legal defense against claims of indebtedness.
    (K) Notification of the recommendation of a preliminary hearing 
officer when an Article 32 of the UCMJ preliminary hearing is held.
    (L) Consultation concerning any decision to dismiss charges or to 
enter into a pretrial agreement.
    (M) Notification of the disposition of the case, to include the 
acceptance of a plea of ``guilty,'' the rendering of a verdict, the 
withdrawal or dismissal of charges, or disposition other than court-
martial, to specifically include nonjudicial punishment under Article 
15 of the UCMJ, administrative processing or separation, or other 
administrative actions.
    (N) Notification to victims of the opportunity to present to the 
court at sentencing, in compliance with applicable law and regulations, 
a statement of the impact of the crime on the victim, including 
financial, social, psychological, and physical harm suffered by the 
victim. The right to submit a victim impact statement is limited to the 
sentencing phase and does not extend to the providence (guilty plea) 
inquiry before sentencing.
    (O) Notification of the offender's sentence and general information 
regarding minimum release date, parole, clemency, and mandatory 
supervised release.
    (P) Notification of the opportunity to receive a copy of 
proceedings. The convening authority or subsequent responsible official 
must authorize release of a copy of the record of trial without cost to 
a victim of sexual assault as defined in Rule of Court-Martial (R.C.M.) 
1104 of the MCM and Article 54(e) of the UCMJ. Victims of offenses 
other than sexual assault may also receive a copy of the record of 
trial, without cost, when necessary to lessen the physical, 
psychological, or financial hardships suffered as a result of a 
criminal act.
    (ii) After court proceedings, the local responsible official will 
take appropriate action to ensure that property of a victim or witness 
held as evidence is safeguarded and returned as expeditiously as 
possible.
    (iii) Except for information that is provided by law enforcement 
officials and U.S. Government trial counsel in accordance with 
paragraphs (b)(3) and (4) of this section, requests for information 
relating to the investigation and prosecution of a crime (e.g., 
investigative reports and related documents) from a victim or witness 
will be processed in accordance with DoD Instruction 1342.24.
    (iv) Any consultation or notification required by paragraph 
(b)(5)(i) of this section may be limited to avoid endangering the 
safety of a victim or witness, jeopardizing an ongoing investigation, 
disclosing classified or privileged information, or unduly delaying the 
disposition of an offense. Although the victim's views should be 
considered, this part is not intended to limit the responsibility or 
authority of the Military Service or the Defense Agency officials to 
act in the interest of good order and discipline.
    (5) Information and services to be provided on conviction. (i) The 
Military Department trial counsel will explain and provide services to 
victims and witnesses on the conviction of an offender in a court-
martial. The DD Form 2703, ``Post-Trial Information for Victims and 
Witnesses of Crime,'' will be used as a handout to convey basic 
information about the post-trial process.
    (ii) When appropriate, the following will be provided to victims 
and witnesses:
    (A) General information regarding convening authority action, the 
appellate process, the corrections process, information about work 
release, furlough, probation, parole, mandatory supervised release, or 
other forms of release from custody, and eligibility for each.
    (B) Specific information regarding the election to be notified of 
further actions in the case, to include the convening authority's 
action, hearings and decisions on appeal, changes in inmate status, and 
consideration for parole. The DD Form 2704, ``Victim/Witness 
Certification and Election Concerning Prisoner Status,'' will be 
explained and used for victims and appropriate witnesses (e.g., those 
who fear harm by the offender) to elect to be notified of these 
actions, hearings, decisions, and changes in the offender's status in 
confinement.
    (1) For all cases resulting in a sentence to confinement, the DD 
Form 2704 will be completed and forwarded to the Service central 
repository, the gaining confinement facility, the local responsible 
official, and the victim or witness, if any, with appropriate 
redactions made by the delivering official.
    (i) Incomplete DD Forms 2704 received by the Service central 
repository must be accompanied by a signed memorandum detailing the 
reasons for the incomplete information, or they will be sent back to 
the responsible legal office for correction.
    (ii) Do not allow an inmate access to DD Form 2704 or attach a copy 
of the forms to any record to which the confinee has access. Doing so 
could endanger the victim or witness.
    (2) For all cases resulting in conviction but no sentence to 
confinement, the DD Form 2704 will be completed and forwarded to the 
Service central repository, the local responsible official, and the 
victim or witness, if any.
    (3) The DD Forms 2704 and 2705, ``Notification to Victim/Witness of 
Prisoner Status,'' are exempt from release in accordance with 32 CFR 
part 286.
    (C) Specific information regarding the deadline and method for 
submitting a written statement to the convening authority for 
consideration when taking action on the case in accordance with

[[Page 29579]]

Article 60 of the UCMJ and R.C.M. 1105A of the MCM.
    (6) Information and services to be provided on entry into 
confinement facilities. (i) The victim and witness assistance 
coordinator at the military confinement facility will:
    (A) On entry of an offender into post-trial confinement, obtain the 
DD Form 2704 to determine victim or witness notification requirements. 
If the form is unavailable, ask the Service central repository whether 
any victim or witness has requested notification of changes in inmate 
status in the case.
    (B) When a victim or witness has requested notification of changes 
in inmate status on the DD Form 2704, and that status changes as listed 
in paragraph (b)(6)(ii) of this section, use the DD Form 2705, ``Victim 
and Witness Notification of Changes in Inmate Status,'' to notify the 
victim or witness.
    (1) The date the DD Form 2705 is given to the victim or witness 
shall be recorded by the delivering official. This serves as evidence 
that the officer notified the victim or witness of his or her statutory 
rights.
    (2) Do not allow the inmate access to DD Form 2705 or attach a copy 
of the forms to any record to which the inmate has access. Doing so 
could endanger the victim or witness.
    (C) Provide the earliest possible notice of:
    (1) The scheduling of a clemency or parole hearing for the inmate.
    (2) The results of the Service Clemency and Parole Board.
    (3) The transfer of the inmate from one facility to another.
    (4) The escape, immediately on escape, and subsequent return to 
custody, work release, furlough, or any other form of release from 
custody of the inmate.
    (5) The release of the inmate to supervision.
    (6) The death of the inmate, if the inmate dies while in custody or 
under supervision.
    (7) A change in the scheduled release date of more than 30 days 
from the last notification due to a disposition or disciplinary and 
adjustment board.
    (D) Make reasonable efforts to notify all victims and witnesses who 
have requested notification of changes in inmate status of any 
emergency or special temporary home release granted an inmate.
    (E) On transfer of an inmate to another military confinement 
facility, forward the DD Form 2704 to the gaining facility, with an 
information copy to the Service central repository.
    (ii) The status of victim and witness notification requests will be 
reported annually to the Service central repository.
    (7) Information and services to be provided on appeal. (i) When an 
offender's case is docketed for review by a Court of Criminal Appeals, 
or is granted review by the Court of Appeals for the Armed Forces 
(C.A.A.F.) or by the U.S. Supreme Court, the U.S. Government appellate 
counsel for the Government or appropriate Military Service designee 
will ensure that all victims who have indicated a desire to be notified 
receive this information, if applicable:
    (A) Notification of the scheduling, including changes and delays, 
of each public court proceeding that the victim is entitled to attend.
    (B) Notification of the decision of the court.
    (ii) When an offender's case is reviewed by the Office of The Judge 
Advocate General (TJAG) of the Military Department concerned, pursuant 
to Article 69 and Article 73 of the UCMJ, TJAG will ensure that all 
victims who have indicated a desire to be notified on DD Form 2704 
receive notification of the outcome of the review.
    (iii) The Military Services may use the sample appellate 
notification letter found at Figure 1 of this section, or develop their 
own templates to keep victims informed of appellate court proceedings.
    (8) Information and services to be provided on consideration for 
parole or supervised release. (i) Before the parole or supervised 
release of a prisoner, the military confinement facility staff will 
review the DD Form 2704 to ensure it has been properly completed. If 
there is a question concerning named persons or contact information, it 
will be immediately referred to the appropriate staff judge advocate 
for correction.
    (ii) When considering a prisoner for release on supervision, the 
military confinement facility commander will ensure that all victims on 
the DD Form 2704 indicating a desire to be notified were provided an 
opportunity to provide information to the Military Department Clemency 
and Parole Board in advance of its determination, as documented in the 
confinement file.
    (9) Reporting procedures. (i) To comply with the requirements of 10 
U.S.C., Public Law 113-66, and title 18 of the United States Code, the 
DoD Component responsible official will submit an annual report using 
the DD Form 2706 to: Office of the Under Secretary of Defense for 
Personnel and Readiness, Attention: Legal Policy Office, 4000 Defense 
Pentagon, Washington, DC 20301-4000.
    (ii) The report will be submitted by March 15 for the preceding 
calendar year and will address the assistance provided victims and 
witnesses of crime.
    (iii) The report will include:
    (A) The number of victims and witnesses who received a DD Form 2701 
from law enforcement or criminal investigations personnel.
    (B) The number of victims who received a DD Form 2702 from U.S. 
Government trial counsel, or designee.
    (C) The number of victims and witnesses who received a DD Form 2703 
from U.S. Government trial counsel or designee.
    (D) The number of victims and witnesses who elected via the DD Form 
2704 to be notified of changes in inmate status.
    (E) The number of victims and witnesses who were notified of 
changes in inmate status by the confinement facility victim witness 
assistance coordinators via the DD Form 2705 or a computer-generated 
equivalent.
    (F) The cumulative number of inmates in each Military Service for 
whom victim witness notifications must be made by each Service's 
confinement facilities. These numbers are derived by totaling the 
number of inmates with victim or witness notification requirements at 
the beginning of the year, adding new inmates with the requirement, and 
then subtracting those confinees who were released, deceased, or 
transferred to another facility (e.g., federal, State, or sister 
Military Service) during the year.
    (iv) The Office of the USD(P&R) will consolidate all reports 
submitted by each Military Service, and submit an annual report to the, 
and Bureau of Justice Statistics, and the Office for Victims of Crime, 
Department of Justice.
    (c) Special victim investigation and prosecution (SVIP) capability. 
(1) In accordance with DTM 14-003, section 573 of Public Law 112-239, 
and, the Military Services will maintain a distinct, recognizable group 
of professionals to provide effective, timely, and responsive worldwide 
victim support, and a capability to support the investigation and 
prosecution of special victim offenses within the respective Military 
Departments.
    (2) Covered special victim offenses include:
    (i) Unrestricted reports of adult sexual assault.
    (ii) Unrestricted reports of domestic violence involving sexual 
assault and/or aggravated assault with grievous bodily harm.

[[Page 29580]]

    (iii) Child abuse involving child sexual abuse and/or aggravated 
assault with grievous bodily harm.
    (3) Military Service SVIP programs will include, at a minimum, 
specially trained and selected:
    (i) Investigators from within MCIOs of the Military Departments.
    (ii) Judge advocates to serve as prosecutors.
    (iii) VWAP personnel.
    (iv) Paralegal or administrative legal support personnel.
    (4) Each Military Service will maintain standards for the 
selection, training, and certification of personnel assigned to provide 
this capability. At a minimum, SVIP training must:
    (i) Focus on the unique dynamics of sexual assault, aggravated 
domestic violence, and child abuse cases.
    (ii) Promote methods of interacting with and supporting special 
victims to ensure their rights are understood and respected.
    (iii) Focus on building advanced litigation, case management, and 
technical skills.
    (iv) Ensure that all SVIP legal personnel understand the impact of 
trauma and how this affects an individual's behavior and the memory of 
a traumatic incident when interacting with a victim.
    (v) Train SVIP personnel to identify any safety concerns and 
specific needs of victims.
    (vi) Ensure SVIP personnel understand when specially trained 
pediatric forensic interviewers are required to support the 
investigation and prosecution of complex child abuse and child sexual 
abuse cases.
    (5) Each Military Service will maintain and periodically review 
measures of performance and effectiveness to objectively assess Service 
programs, policies, training, and services. At a minimum, these 
Service-level review measures will include:
    (i) Percentage of all preferred court-martial cases that involve 
special victim offenses in each fiscal year.
    (ii) Percentage of special victim offense courts-martial tried by, 
or with the direct advice and assistance of, a specially trained 
prosecutor.
    (iii) Compliance with DoD VWAP informational, notification, and 
reporting requirements specified in paragraphs (b)(1) through (9) of 
this section, to ensure victims are consulted with and regularly 
updated by special victim capability legal personnel.
    (iv) Percentage of specially trained prosecutors and other legal 
support personnel having received additional and advanced training in 
topical areas.
    (6) The Military Services will also consider victim feedback on 
effectiveness of special victim prosecution and legal support services 
and recommendations for possible improvements, as provided in DoD 
survivor experience surveys or other available feedback mechanisms. 
This information will be used by the Military Services to gain a 
greater understanding of the reasons why a victim elected to 
participate or declined to participate at trial in accordance with 
Enclosure 12 of DoD Instruction 6495.02, and whether SVIP, VWAP, and 
other legal support services had any positive impact on this decision.
    (7) Designated SVIP capability personnel will collaborate with 
local DoD SARCs, sexual assault prevention and response victim 
advocates, Family Advocacy Program (FAP) managers, and domestic abuse 
victim advocates during all stages of the military justice process to 
ensure an integrated capability.
    (8) To support this capability, active liaisons shall be 
established at the installation level with these organizations and key 
individuals:
    (i) Local military and civilian law enforcement agencies.
    (ii) SARCs.
    (iii) Victim advocates.
    (iv) FAP managers.
    (v) Chaplains.
    (vi) Sexual assault forensic examiners and other medical and mental 
health care providers.
    (vii) Unit commanding officers.
    (viii) Other persons designated by the Secretaries of the Military 
Departments necessary to support special victims.
    (9) In cases of adult sexual assault the staff judge advocate or 
designated representative of the responsible legal office will 
participate in case management group meetings, in accordance with DoD 
Instruction 6495.02, on a monthly basis to review individual cases. 
Cases involving victims who are assaulted by a spouse or intimate 
partner will be reviewed by FAP.
    (10) The staff judge advocate of the responsible legal office will 
participate in FAP case review or incident determination meetings of 
domestic violence, spouse or intimate partner sexual assault, and child 
abuse cases in accordance with DoD Instruction 6400.06.
    (11) In the case of a victim who is under 18 years of age and not a 
member of the Military Services, or who is incompetent, incapacitated, 
or deceased, the military judge will designate in writing a 
representative of the estate of the victim, a family member, or another 
suitable individual to assume the victim's rights under the UCMJ. The 
victim's representative is designated for the sole purpose of assuming 
the legal rights of the victim as they pertain to the victim's status 
as a victim of any offense(s) properly before the court. Under no 
circumstances will the individual designated as representative have 
been accused of any crime against the victim.
    (i) The Secretaries of the Military Departments may publish 
additional guidance or regulation regarding, who, before referral, may 
designate an appropriate representative, such as the convening 
authority or other qualified local responsible official.
    (ii) In making a decision to appoint a representative, the 
designating authority should consider:
    (A) The age and maturity, relationship to the victim.
    (B) The physical proximity to the victim.
    (C) The costs incurred in effecting the appointment.
    (D) The willingness of the proposed designee to serve in such a 
role.
    (E) The previous appointment of a guardian by a court of competent 
jurisdiction.
    (F) The preference of the victim, if known.
    (G) Any potential delay in any proceeding that may be caused by a 
specific appointment.
    (H) Any other relevant information.
    (iii) The representative, legal guardian, or equivalent of a victim 
of who is eligible, or in the case of a deceased victim, was eligible 
at the time of death for legal assistance provided by SVC/VLC, may 
elect legal representation for a SVC/VLC on behalf of the victim.
    (c) Legal assistance for crime victims--(1) Eligibility. Active and 
retired Service members and their dependents are entitled to receive 
legal assistance pursuant to 10 U.S.C. 1044 and 1565 and Under 
Secretary for Defense for Personnel and Readiness Memorandum, ``Legal 
Assistance for Sexual Assault Victims,'' October 17, 2011.
    (2) Information and Services. Legal assistance services for crime 
victims will include confidential advice and assistance for crime 
victims to address:
    (i) Rights and benefits afforded to the victim under law and DoD 
policy.
    (ii) Role of the VWAP coordinator or liaison.
    (iii) Role of the victim advocate.
    (iv) Privileges existing between the victim and victim advocate.
    (v) Differences between restricted and unrestricted reporting.
    (vi) Overview of the military justice system.
    (vii) Services available from appropriate agencies for emotional 
and

[[Page 29581]]

mental health counseling and other medical services.
    (viii) Advising of rights to expedited transfer.
    (ix) Availability of and protections offered by civilian and 
military protective orders.
    (d) Special Victims' Counsel/Victims' Legal Counsel programs--(1) 
Eligibility. In accordance with 10 U.S.C. 1044, 1044e, and 1565b, 
section 1716 of Public Law 113-66, and section 533 of the NDAA 2005, 
the Military Services provide legal counsel, known as SVC/VLC, to 
assist victims of alleged sex-related offenses including Articles 120, 
120a, 120b, and 120c, forcible sodomy under Article 125 of the UCMJ, 
attempts to commit such offenses under Article 80 of the UCMJ, or other 
crimes under the UCMJ as authorized by the Service, who are eligible 
for legal assistance pursuant to 10 U.S.C. 1044e and as further 
prescribed by the Military Departments and National Guard Bureau 
policies. Individuals eligible for SVC/VLC representation include any 
of the following:
    (i) Individuals entitled to military legal assistance under 10 
U.S.C. 1044 and 1044e, and as further prescribed by the Military 
Departments and National Guard Bureau policies. (ii) Members of a 
reserve component of the armed forces, in accordance with section 533 
of NDAA 2005, and as further prescribed by the Military Departments and 
National Guard Bureau policies.
    (2) Attorney-client information and services. The types of legal 
services provided by SVC/VLC programs in each Military Service will 
include:
    (i) Legal consultation regarding the VWAP, including:
    (A) The rights and benefits afforded the victim.
    (B) The role of the VWAP liaison.
    (C) The nature of communication made to the VWAP liaison in 
comparison to communication made to a SVC/VLC or a legal assistance 
attorney pursuant to 10 U.S.C. 1044.
    (ii) Legal consultation regarding the responsibilities and support 
provided to the victim by the SARC, a unit or installation sexual 
assault victim advocate, or domestic abuse advocate, to include any 
privileges that may exist regarding communications between those 
persons and the victim.
    (iii) Legal consultation regarding the potential for civil 
litigation against other parties (other than the DoD).
    (iv) Legal consultation regarding the military justice system, 
including, but not limited to:
    (A) The roles and responsibilities of the military judge, trial 
counsel, the defense counsel, and military criminal investigators.
    (B) Any proceedings of the military justice process in which the 
victim may observe or participate in person or through his or her SVC/
VLC.
    (v) Accompanying or representing the victim at any proceedings when 
necessary and appropriate, including interviews, in connection with the 
reporting, investigation, and prosecution of the alleged sex-related 
offense.
    (vi) Legal consultation regarding eligibility and requirements for 
services available from appropriate agencies or offices for emotional 
and mental health counseling and other medical services.
    (vii) Legal representation or consultation and assistance:
    (A) In personal civil legal matters in accordance with 10 U.S.C. 
1044.
    (B) In any proceedings of the military justice process in which a 
victim can participate as a witness or other party.
    (C) In understanding the availability of, and obtaining any 
protections offered by, civilian and military protecting or restraining 
orders.
    (D) In understanding the eligibility and requirements for, and 
obtaining, any available military and veteran benefits, such as 
transitional compensation benefits found in 10 U.S.C. 1059, DoD 
Instruction 1342.24, ``Transitional Compensation for Abused 
Dependents,'' (available at http://www.dtic.mil/whs/directives/corres/pdf/134224p.pdf), and other State and federal victims' compensation 
programs.
    (E) The victim's rights and options at trial, to include the option 
to state a preference to decline participation or withdraw cooperation 
as a witness and the potential consequences of doing so.
    (viii) Legal representation or consultation regarding the potential 
criminal liability of the victim stemming from or in relation to the 
circumstances surrounding the alleged sex-related offense (collateral 
misconduct), regardless of whether the report of that offense is 
restricted or unrestricted in accordance with DoD Instruction 6495.02. 
Victims may also be referred to the appropriate defense services 
organization for consultation on the potential criminal implications of 
collateral misconduct.
    (ix) Other legal assistance as the Secretary of Defense or the 
Secretary of the Military Department concerned may authorize.

Figure 1. Sample Appellate Notification Letter

------------------------------------------------------------------------
 
-------------------------------------------------------------------------
[Victim Name]
 
[Address]
 
 
 
 
Dear [Mr.][Mrs.][Ms.] [Victim Name]:
 
 
 
 
The United States [Military Service] believes it is important to keep
 victims of crimes under the Uniform Code of Military Justice informed
 of court proceedings. Based on your request, we are providing you with
 information about the military appellate process and upcoming events in
 your case, in accordance with Department of Defense Instruction
 1030.02, ``Victim Witness Assistance.''
 
 
 
[Name of Accused] (Appellant) filed an appeal of [his][her] criminal
 conviction on [Date] at the [Service] Court of Criminal Appeals. The
 process may take time before a decision is reached by the Court of
 Criminal Appeals. An appeal is a legal proceeding by which a case is
 brought before a higher court for review of the decision made by the
 lower, or trial, court. The Court of Criminal Appeals may decide this
 appeal solely on the basis of the brief submitted by the Appellant and
 the response which will be submitted by the U.S. Government, or the
 Court may decide to hold a public courtroom proceeding and hear the
 arguments made by the attorneys for both sides. If the Court does
 determine a courtroom proceeding is warranted, you will be notified of
 the date and location so that you may attend. If the Court declines to
 hold a courtroom proceeding and decides the issue on the basis of the
 Appellant's brief and the U.S. Government's response, you will be
 notified of the ultimate decision.
 
 
 

[[Page 29582]]

 
 The ruling of the [Service] Court of Criminal Appeals is not
 necessarily the final resolution of this case. There are two courts
 superior to the Court of Criminal Appeals from which the Appellant
 could also seek review. If the Court of Criminal Appeals rules against
 the Appellant, [he][she] can seek review of that ruling at the Court of
 Appeals for the Armed Forces (C.A.A.F). If the Appellant is denied
 review by the C.A.A.F. [his][her] case becomes final and you will be
 informed. If review is granted by the C.A.A.F., you will be informed of
 the review taking place, of any courtroom proceedings, and of the final
 ruling. If C.A.A.F. grants review of the Appellant's case and rules
 against [him][her], [he][she] could potentially appeal that decision to
 the Supreme Court of the United States. If this were to occur, you will
 be notified. Cases are also sometimes returned to the [Service] Court
 of Criminal Appeals for further proceedings. In addition, the
 Appellants may also petition the respective Military Department Judge
 Advocate General for a new trial based on newly discovered evidence or
 fraud upon the court. If that were to occur, you will be notified.
 
 
 
 For now, the Appellant has sought review of [his][her] conviction at
 the [Service] Court of Criminal Appeals. Nothing is required of you,
 but should you so desire, have any questions, or require further
 information, please contact [DESIGNATED REPRESENTATIVE AND CONTACT
 INFORMATION].
 
 
 
 Sincerely,
 
 (Service designee)
------------------------------------------------------------------------


    Dated: May 15, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-12256 Filed 5-21-15; 8:45 am]
 BILLING CODE 5001-06-P