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National Defense Authorization Act for Fiscal Year 2020 Brings 3 Significant Provisions

December 18, 2019

The National Defense Authorization Act for Fiscal Year 2020 (NDAA FY20) was recently unveiled by Congress, passed, and signed by President Trump. The NDAA outlines how Congress intends to “raise and support” the military for the next fiscal year, setting budget guidelines and expectations. The NDAA also introduces new military justice provisions for further legislative review and possible approval.

NDAA FY20 is complete with dozens of various provisions, yet there are three that stand out from the rest due to their potential impact. To get a better understanding of how NDAA FY20 will change military justice system procedures, it is best to start by examining these three most noteworthy provisions.

SECTION 531 – EXPANSION OF PRE-REFERRAL MATTERS

Under the Military Justice Act of 2016, military judges and military magistrates were allowed to review investigative subpoenas, digital evidence, and other issues referred by an appellate court before any referral of charges. As described within NDAA FY20, the changes were implemented “in the interest of efficiency in military justice.”

Section 531 of the NDAA FY20 allows military judges and magistrates to review even more relevant information and evidence before referring to charges. In particular, it allows for the review and interpretation of Article 6b(e) and Article 6b(c). The articles describe an alleged victim’s rights and how to enforce them as criminal proceedings unfold.

Judges and magistrates have also gained the authority to review information relating to the accused’s treatments and faculties before matters are taken to trial or court martial. Whether the accused was placed in pretrial confinement, the mental capacity of the accused, and any requests made by the accused to be assigned military counsel in their defense are all reviewable. This portion of Section 531 is noteworthy in that it stands to grant some relief to the accused in many military criminal cases. If a military judge or magistrate deems the pretrial treatment of the accused to be inadequate or unlawful, then their case could be upturned.

SECTION 532 – COMMAND INFLUENCE

Unlawful command influence has been a hot topic in the world of military criminal justice lately. It was confirmed when Marines were arrested en masse while in battle formation at Camp Pendleton this July. It was an underlying factor in the sexual assault case of U.S. v. Barry in 2018. Going back to 2017 even, unlawful command influence forced the sexual assault case of U.S. v. Boyce to undergo a second trial.

In recognition of the prevalence and severity of unlawful command influence, Section 532 of the NDAA FY20 attempts to both clarify and broaden its definition, starting by simply referring to the violation as “command influence.” Paragraphs of new language will be added to Article 37, including prohibiting any commanding officer or person of authority to criticize anyone involved with an ongoing case, whether that case is in court processes or not. There is also expanded language to prohibit people of influence from attempting to coerce witnesses or deter a court’s action.

Article 37(a)(4) now describes what is not a violation of command influence. For example, a commanding officer is permitted to openly speak about a criminal offense if they do not project a specific disposition or opinion of the matter. That is to say, remaining factual in commentary is acceptable. Although, remaining purely factual and unbiased when providing commentary is often more difficult than it seems.

Interestingly, the expanded definitions under Section 532 also clearly state that findings or sentencing in court martial cannot be “held incorrect” unless the alleged unlawful command influence “materially prejudices the substantial rights of the accused.” In other words, it is possible for command influence to be recognized during court proceedings without necessarily impacting the rights of the accused and the integrity of the legal process as a whole. Ineffective unlawful command influence is prohibited, yes, but, no, it does not warrant throwing out a ruling or sentencing by default.

SECTION 537 – UCMJ SENTENCING GUIDELINES

Under this provision, the Secretary of Defense has been tasked to create nonbinding sentencing guidelines for any convictions related to Uniform Code of Military Justice (UCMJ) Chapter 47 Title 10. Punishments the Secretary of Defense can consider include everything from confinement and fines to discharges. To enable the Secretary to get a fairer understanding of what punishments are reasonable for what violations, the Military Justice Review Panel has provided a lengthy sentencing data collection for review and interpretation.

Section 537 of NDAA FY20 is interesting in that it is an open invitation to allow the Secretary of Defense to significantly influence the actions of the military justice system and court martial. In the past, deciding fair punishment for convicted service members was a duty largely kept within the Armed Forces, handled by military judges and others up the Chain of Command. Technically, the Secretary of Defense is a civilian who is separate from the U.S. Military.

Placing the responsibility of deciding sentencing requirements for military convictions on the Secretary of Defense may be an attempt to increase system transparency. It may also be the first step in lessening conviction guidelines, which have been criticized for being overly harsh in many cases, especially in reference to drug crimes. Although, it is also possible the Secretary of Defense will want to increase conviction requirements across the board to appear “tough on crime” within the ranks. With the recent passage of the NDAA, time will have to tell how the Secretary of Defense, currently Mark Esper, interprets this responsibility.

DEFENSE COUNSEL FOR SERVICE MEMBERS ACROSS THE WORLD

Attorney Joseph L. Jordan and his legal team keep a close eye on developments in the world of military justice and court martial, for even the slightest policy change could make a huge difference for the accused. For more emerging information about NDAA FY20, its provisions, and how they impact military criminal law, visit his blog often for new entries and updates.

If you need the assistance of a military criminal defense attorney for a case of your own, call his firm at (866) 361-4723. With Attorney Jordan’s background as a former prosecutor and Army JAG Officer, he is poised to tackle even the most complicated of high-stakes cases for his clients. Attorney Jordan proudly offers his services to men and women in all branches of the military and who are stationed at bases across the globe. No matter where you are in the world, Attorney Joseph Jordan can defend you.

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