JANUARY 3, 2019 – A host of changes to the Uniform Code of Military Justice became effective Jan. 1, modernizing definitions for many offenses, adjusting maximum penalties, standardizing court-martial panels, creating new computer-crime laws, and much more.
The changes strike a balance between protecting the rights of the accused and empowering commanders to effect good order and discipline, said Col. Sara Root, chief of the Army’s Military Justice Legislation Training Team.
“We’re pretty excited,” Root said. “It’s a healthy growth of our military justice system.”
Root and three members of her team spent the last year traveling to 48 installations to train 6,000 legal personnel and law-enforcement agents about the changes. Her two-day classes included everyone from judges to law clerks, and privates to generals, she said, and even 600 from other military services.
Many of the changes came about after a review by the Military Justice Review Group, consisting of military and criminal justice experts whose report made recommendations to Congress.
“We’ve had a lot of changes to our system [over the years], but piecemeal.” Root said. She explained that the Review Group convened to take a thorough and holistic look at the system to standardize military law and update the Manual for Courts Martial.
Many of the MJRG’s changes were incorporated into the Military Justice Act of 2016, the 2017 National Defense Authorization Act, and then Executive Order 13825 signed by the president March 8. Additionally, Secretary of the Army Mark Esper signed a directive Dec. 20 that clarifies definitions for dozens of offenses taking effect this week.
“We’ve really needed that much time,” Root said, from 2017 to now, in order to train all members of the Army Judge Advocate General’s Corps. Those attending her classes then needed time to train commanders and others on the installations, she added.
One of the changes replaces the offense of adultery with “extra-marital sexual conduct.” The new offense broadens the definition of sexual intercourse, which now includes same-sex affairs. The amendments also now provide legal separation as a defense.
In the past, service members could be charged with adultery even if they had been legally separated for years but were not divorced. Now legal separation from a court of competent jurisdiction can be used as an affirmative defense, Root said.
Also in the past, prosecutors had to prove traditional intercourse to obtain a conviction for adultery, Root said. Now oral sex and other types of sexual intercourse are included.
PROTECTING JUNIOR SOLDIERS
UCMJ Article 93a provides stiffer penalties for recruiters, drill sergeants and others in “positions of special trust” convicted of abusing their authority over recruits or trainees.
The maximum sentence was increased from two years to five years of confinement for those in authority engaging in prohibited sexual activities with junior Soldiers. And it doesn’t matter if the sex is consensual or not, Root said, it’s still a crime.
Article 132 also protects victims and those reporting crimes from retaliation. An adverse personnel action — such as a bad NCO Evaluation Report, if determined to be solely for reprisal — can get the person in authority up to three years confinement without pay and a dishonorable discharge.
Article 123 provides stiff penalties for Soldiers who wrongfully access unauthorized information on government computers. Distributing classified information can earn a maximum sentence of 10 years confinement, but even wrongfully accessing it can get up to five years in jail. Unauthorized access of personally identifiable information, or PII, is also a crime. Intentionally damaging government computers or installing a virus can also bring five years in the clinker.
Article 121a updates offenses involving the fraudulent use of credit cards, debit cards or other access devices to acquire anything of value. The penalty for such crimes has been increased to a max of 15 years confinement if the theft is over $1,000.
If the theft is under $1,000 the maximum penalty was increased from five to 10 years confinement, and this crime also includes exceeding one’s authorization to use the access device, for example, misusing a Government Travel Card.
Cyberstalking is also now included as a stalking offense under Article 130 of the UCMJ.
A “bench trial” by a judge alone can now determine guilt or innocence for many offenses. Almost any charge can be referred to such a forum, except for rape and sexual assault, which requires referral to a general court-martial. However, if the offense has a sentence of more than two years, the accused has a right to object to such charges being referred to a bench trial and could request a special or general court-martial.
If found guilty at a bench trial, Root said a Soldier cannot be given a punitive discharge and the max sentence would be limited to no more than six months forfeiture of pay and no more than six months confinement. The judge can still adjudge a reduction in rank.
“It’s a great tool that we’re really excited to see how commanders use it out in the formations,” Root said.
More than half of the cases in the Army actually are settled by plea agreements in lieu of a contested trial, Root said. Commanders have always had the authority to limit the max sentence with a plea agreement, but she said now they can agree to a minimum sentence as well. This might result in a range for the judge to sentence within, for example, no less than one year confinement, but no more than five years confinement.
If a case goes to a non-capital general court-martial, the panel has now been standardized to eight members. In the past the size of the panel could vary from five to an unlimited number, but often around 10-12 members. Now each general court-martial must begin with eight panel members, she said, but could continue if one panel member must leave due to an emergency during trial.
Special courts-martial will now be set at four panel members. A court-martial convening authority can also authorize alternate members to be on a special or a general court-martial, she said.
Capital offenses such as murder require a 12-member panel.
For a non-capital court-martial, three-fourths of the panel members must agree with the prosecution to convict the accused, she said. For instance, if only five members of an eight-member panel vote guilty, then the accused is acquitted. A conviction for a capital offense still requires a unanimous verdict.
Congress expanded judges’ authorities to issue investigative subpoenas earlier in the process, for example, to obtain a surveillance video from a store. One of the most significant changes is that now military judges can issue warrants and orders to service providers to obtain electronic communications such as email correspondence.
In the past, trial counsel had to wait until preferring charges to issue investigative subpoenas. Now, with the approval of the general court-martial convening authority, trial counsel can issue subpoenas earlier to help determine whether charges are necessary. For electronic communications, the government previously had to rely on federal counterparts to assist with obtaining electronic communications.
“Being able to have these tools available earlier in the process is going to be helpful for overall justice,” Root said.
The changes also call for more robust Article 32 hearings to help the commander determine if an accused should go to trial, she said. For instance, a preliminary hearing officer must now issue a more detailed report immediately after an Article 32 hearing’s conclusion. In addition, both the accused and the victim now have the right to submit anything they deem relevant to the preliminary hearing officer within 24 hours after the hearing specifically for the court-martial convening authority to consider.
Aimed at speeding up the post-trial process, immediately following a court-martial, audio can now be provided to the accused, the victim, and the convening authority in lieu of a verbatim transcript which will be typed and provided later, but prior to appeal.
A number of other procedural changes are aimed at making the military justice system even more efficient, Root said.
More changes to punitive offenses also take effect this week. For instance, the definition of burglary has changed to include breaking and entering any building or structure of another, anytime, with the intent to commit any offense under the UCMJ. In the past, burglary was limited to breaking and entering the dwelling house of another in the nighttime.
The penalty for wearing unauthorized medals of valor has increased from 6 months to a max of one-year confinement along with forfeiture of pay and a bad-conduct discharge. This includes wearing an unauthorized Medal of Honor, Distinguished Service Cross, Silver Star, Purple Heart, or valor device. The maximum penalty for wearing any other unauthorized medal is still only six months.
Regarding misconduct that occurred prior to Jan. 1, the changes to the punitive articles are not retroactive, Root said. However, some of the procedural changes will apply to cases that were not referred to trial before Jan. 1.
All members of the JAG Corps are trained in the changes and ready to go, Root said.
“We’re pretty proud that our commanders are really at the center of this,” she said, “and it just gives them some more tools for good order and discipline.”
By Gary Sheftick, Army News Service