What You Should Know About the Military Justice Act of 2016
The Department of Defense is currently taking public comments on provisions implementing the Military Justice Act of 2016, legislation that proposed changes to the Manual for Courts-Martial and the Uniform Code of Military Justice. As Senator John McCain has said, the Act constitutes “the most significant reforms to the Uniform Code of Military Justice since it was enacted six decades ago.”
Here are some highlights of the changes the law will make to the military justice system:
1. The act authorizes military judges to issue rulings on certain issues that arise prior to referral and provides a new option for disposition of certain offenses in a judge-alone special court-martial. (As Shane Reeves and Mark Visger explain, this court-martial may adjudge confinement for up to six months but may not adjudge a bad-conduct discharge or dishonorable discharge. Upon agreement of both parties, a military magistrate may hear such courts-martial.)
2. Servicemembers, like their civilian counterparts, will be provided with the opportunity to obtain judicial review in all cases by eliminating current restrictions that preclude direct appellate review in many cases.
3. It changes the quality of pre-referral investigations by expanding the authority to obtain documents during investigations through subpoenas and other processes (Art. 46).
4. The legislation broadens the opportunity for enlisted personnel to serve on court-martial panels while providing an enlisted accused with the option of requesting trial before a panel composed of officers (Art. 25).
5. The President is authorized to designate lesser included offenses under legislative criteria and establishes specific statutory punitive articles to cover many forms of misconduct (such as kidnapping) that are now addressed by Executive Order in the Manual for Courts-Martial.
6. It amends the statute of limitations for child-abuse offenses from five to ten years, for fraudulent enlistment to five years or term of enlistment/commission, and extends the period when DNA testing implicates an identified person.
7. The stalking offense is revised to include cyberstalking and threats to intimate partners (Art. 130).
8. The definition of “sexual acts” and “incapable of consenting” is changed in Art. 120 (Rape And Sexual Assault Offenses) to align with federal civilian law.
9. The law creates several new enumerated offenses, including: Article 93a: Prohibited activities with military recruit or trainee by person in position of special trust; Article 121a: Fraudulent use of credit cards, debit cards, and other access devices; Article 123: Offenses concerning Government computers; and Article 132: Retaliation (for reporting or planning to report a criminal offense).
10. There is a one-year statutory deadline for the President to implement these regulations, with most provisions to be implemented not later than Dec. 23, 2017. The statutory deadline for all provisions to become effective is not later than Jan. 1, 2019. Public comments on the proposed changes must be received no later than September 11, 2017.
Joe Carter is an adjunct professor of journalism at Patrick Henry College, an editor for several organizations, and the author of the NIV Lifehacks Bible.
Photo Credit: Capt. Craig Dunham, 81st Training Wing assistant staff judge advocate and trial prosecutor, and Airman 1st Class Alayna Carboni, 81st TRW paralegal, review documents during a summary court martial Feb. 8, 2013, at the Levitow Training Support Facility, Keesler Air Force Base, Miss. Mobile summary courts martial set an example for new Airmen about consequences of their actions by quickly imposing good order and discipline. (U.S. Air Force photo by Kemberly Groue)