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II
116TH CONGRESS
1ST SESSION
S. 1789
To amend title 10, United States Code, to reform procedures for determina-
tions on disposition of charges and the convening of courts-martial for
certain offenses under the Uniform Code of Military Justice, and for
other purposes.
IN THE SENATE OF THE UNITED STATES
JUNE 11, 2019
Mrs. GILLIBRAND (for herself, Mr. GRASSLEY, Mrs. SHAHEEN, Mr. LEAHY,
Mr. DURBIN, Ms. WARREN, Mr. BENNET, Mr. MERKLEY, Mr.
BLUMENTHAL, Mr. WYDEN, Ms. HIRONO, Ms. HASSAN, Ms. BALDWIN,
Mr. COONS, Mr. MENENDEZ, Mrs. FEINSTEIN, Mr. UDALL, Ms. KLO-
BUCHAR, Mr. BROWN, Ms. MURKOWSKI, Ms. SMITH, Mr. BOOKER, Mr.
SANDERS, Mr. CASEY, Mr. CRUZ, Mr. PAUL, Ms. HARRIS, Mr. MARKEY,
Mr. HEINRICH, and Ms. DUCKWORTH) introduced the following bill;
which was read twice and referred to the Committee on Armed Services
A BILL
To amend title 10, United States Code, to reform procedures
for determinations on disposition of charges and the con-
vening of courts-martial for certain offenses under the
Uniform Code of Military Justice, and for other pur-
poses.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
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•S 1789 IS
SECTION 1. SHORT TITLE.
1
This Act may be cited as the ‘‘Military Justice Im-
2
provement Act of 2019’’.
3
SEC. 2. IMPROVEMENT OF DETERMINATIONS ON DISPOSI-
4
TION OF CHARGES FOR CERTAIN OFFENSES
5
UNDER UCMJ WITH AUTHORIZED MAXIMUM
6
SENTENCE OF CONFINEMENT OF MORE THAN
7
ONE YEAR.
8
(a) IMPROVEMENT OF DETERMINATIONS.—
9
(1) MILITARY DEPARTMENTS.—With respect to
10
charges under chapter 47 of title 10, United States
11
Code (the Uniform Code of Military Justice), that
12
allege an offense specified in subsection (b) and not
13
excluded under subsection (c), the Secretary of De-
14
fense shall require the Secretaries of the military de-
15
partments to provide as described in subsection (d)
16
for the determinations as follows:
17
(A) Determinations under section 830 of
18
such chapter (article 30 of the Uniform Code of
19
Military Justice) on the preferral of charges.
20
(B) Determinations under section 830 of
21
such chapter (article 30 of the Uniform Code of
22
Military Justice) on the disposition of charges.
23
(C) Determinations under section 834 of
24
such chapter (article 34 of the Uniform Code of
25
Military Justice) on the referral of charges.
26
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•S 1789 IS
(2) HOMELAND
SECURITY.—With respect to
1
charges under chapter 47 of title 10, United States
2
Code (the Uniform Code of Military Justice), that
3
allege an offense specified in subsection (b) and not
4
excluded under subsection (c) against a member of
5
the Coast Guard (when it is not operating as a serv-
6
ice in the Navy), the Secretary of Homeland Secu-
7
rity shall provide as described in subsection (d) for
8
the determinations as follows:
9
(A) Determinations under section 830 of
10
such chapter (article 30(a) of the Uniform Code
11
of Military Justice) on the preferral of charges.
12
(B) Determinations under section 830 of
13
such chapter (article 30 of the Uniform Code of
14
Military Justice) on the disposition of charges.
15
(C) Determinations under section 834 of
16
such chapter (article 34 of the Uniform Code of
17
Military Justice) on the referral of charges.
18
(b) COVERED OFFENSES.—An offense specified in
19
this subsection is an offense as follows:
20
(1) An offense under chapter 47 of title 10,
21
United States Code (the Uniform Code of Military
22
Justice), for which the maximum punishment au-
23
thorized under that chapter includes confinement for
24
more than one year.
25
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•S 1789 IS
(2) The offense of obstructing justice under sec-
1
tion 931b of title 10, United States Code (article
2
131b of the Uniform Code of Military Justice), re-
3
gardless of the maximum punishment authorized
4
under that chapter for such offense.
5
(3) The offense of retaliation for reporting a
6
crime under section 932 of title 10, United States
7
Code (article 132 of the Uniform Code of Military
8
Justice), regardless of the maximum punishment au-
9
thorized under that chapter for such offense.
10
(4) A conspiracy to commit an offense specified
11
in paragraphs (1) through (3) as punishable under
12
section 881 of title 10, United States Code (article
13
81 of the Uniform Code of Military Justice).
14
(5) A solicitation to commit an offense specified
15
in paragraphs (1) through (3) as punishable under
16
section 882 of title 10, United States Code (article
17
82 of the Uniform Code of Military Justice).
18
(6) An attempt to commit an offense specified
19
in paragraphs (1) through (3) as punishable under
20
section 880 of title 10, United States Code (article
21
80 of the Uniform Code of Military Justice).
22
(c) EXCLUDED OFFENSES.—Subsection (a) does not
23
apply to an offense as follows:
24
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•S 1789 IS
(1) An offense under sections 883 through 917
1
of title 10, United States Code (articles 83 through
2
117 of the Uniform Code of Military Justice).
3
(2) An offense under section 933 or 934 of title
4
10, United States Code (articles 133 and 134 of the
5
Uniform Code of Military Justice).
6
(3) A conspiracy to commit an offense specified
7
in paragraph (1) or (2) as punishable under section
8
881 of title 10, United States Code (article 81 of the
9
Uniform Code of Military Justice).
10
(4) A solicitation to commit an offense specified
11
in paragraph (1) or (2) as punishable under section
12
882 of title 10, United States Code (article 82 of the
13
Uniform Code of Military Justice).
14
(5) An attempt to commit an offense specified
15
in paragraph (1) or (2) as punishable under section
16
880 of title 10, United States Code (article 80 of the
17
Uniform Code of Military Justice).
18
(d) REQUIREMENTS
AND LIMITATIONS.—The dis-
19
position of charges covered by subsection (a) shall be sub-
20
ject to the following:
21
(1) The determination whether to prefer such
22
charges or refer such charges to a court-martial for
23
trial, as applicable, shall be made by a commissioned
24
officer of the Armed Forces designated in accord-
25
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•S 1789 IS
ance with regulations prescribed for purposes of this
1
subsection from among commissioned officers of the
2
Armed Forces in grade O–6 or higher who—
3
(A) are available for detail as trial counsel
4
under section 827 of title 10, United States
5
Code (article 27 of the Uniform Code of Mili-
6
tary Justice);
7
(B) have significant experience in trials by
8
general or special court-martial; and
9
(C) are outside the chain of command of
10
the member subject to such charges.
11
(2) Upon a determination under paragraph (1)
12
to refer charges to a court-martial for trial, the offi-
13
cer making that determination shall determine
14
whether to refer such charges for trial by a general
15
court-martial convened under section 822 of title 10,
16
United States Code (article 22 of the Uniform Code
17
of Military Justice), or a special court-martial con-
18
vened under section 823 of title 10, United States
19
Code (article 23 of the Uniform Code of Military
20
Justice).
21
(3) A determination under paragraph (1) to
22
prefer charges or refer charges to a court-martial for
23
trial, as applicable, shall cover all known offenses,
24
including lesser included offenses.
25
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•S 1789 IS
(4) The determination to prefer charges or
1
refer charges to a court-martial for trial, as applica-
2
ble, under paragraph (1), and the type of court-mar-
3
tial to which to refer under subparagraph (B), shall
4
be binding on any applicable convening authority for
5
the referral of such charges.
6
(5) The actions of an officer described in para-
7
graph (1) in determining under that paragraph
8
whether or not to prefer charges or refer charges to
9
a court-martial for trial, as applicable, shall be free
10
of unlawful or unauthorized influence or coercion.
11
(6) The determination under paragraph (1) not
12
to refer charges to a general or special court-martial
13
for trial shall not operate to terminate or otherwise
14
alter the authority of commanding officers to refer
15
charges for trial by summary court-martial convened
16
under section 824 of title 10, United States Code
17
(article 24 of the Uniform Code of Military Justice),
18
or to impose non-judicial punishment in connection
19
with the conduct covered by such charges as author-
20
ized by section 815 of title 10, United States Code
21
(article 15 of the Uniform Code of Military Justice).
22
(e) CONSTRUCTION WITH CHARGES ON OTHER OF-
23
FENSES.—Nothing in this section shall be construed to
24
alter or affect the preferral, disposition, or referral author-
25
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•S 1789 IS
ity of charges under chapter 47 of title 10, United States
1
Code (the Uniform Code of Military Justice), that allege
2
an offense for which the maximum punishment authorized
3
under that chapter includes confinement for one year or
4
less.
5
(f) POLICIES AND PROCEDURES.—
6
(1) IN GENERAL.—The Secretaries of the mili-
7
tary departments and the Secretary of Homeland
8
Security (with respect to the Coast Guard when it
9
is not operating as a service in the Navy) shall re-
10
vise policies and procedures as necessary to comply
11
with this section.
12
(2) UNIFORMITY.—The General Counsel of the
13
Department of Defense and the General Counsel of
14
the Department of Homeland Security shall jointly
15
review the policies and procedures revised under this
16
subsection in order to ensure that any lack of uni-
17
formity in policies and procedures, as so revised,
18
among the military departments and the Depart-
19
ment of Homeland Security does not render uncon-
20
stitutional any policy or procedure, as so revised.
21
(g) MANUAL FOR COURTS-MARTIAL.—The Secretary
22
of Defense shall recommend such changes to the Manual
23
for Courts-Martial as are necessary to ensure compliance
24
with this section.
25
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•S 1789 IS
SEC. 3. MODIFICATION OF OFFICERS AUTHORIZED TO CON-
1
VENE GENERAL AND SPECIAL COURTS-MAR-
2
TIAL FOR CERTAIN OFFENSES UNDER UCMJ
3
WITH AUTHORIZED MAXIMUM SENTENCE OF
4
CONFINEMENT OF MORE THAN ONE YEAR.
5
(a) IN GENERAL.—Subsection (a) of section 822 of
6
title 10, United States Code (article 22 of the Uniform
7
Code of Military Justice), is amended—
8
(1) by redesignating paragraphs (8) and (9) as
9
paragraphs (9) and (10), respectively; and
10
(2) by inserting after paragraph (7) the fol-
11
lowing new paragraph (8):
12
‘‘(8) with respect to offenses to which section
13
2(a) of the Military Justice Improvement Act of
14
2019 applies, the officers in the offices established
15
pursuant to section 3(c) of that Act or officers in
16
the grade of O–6 or higher who are assigned such
17
responsibility by the Chief of Staff of the Army, the
18
Chief of Naval Operations, the Chief of Staff of the
19
Air Force, the Commandant of the Marine Corps, or
20
the Commandant of the Coast Guard;’’.
21
(b) NO EXERCISE BY OFFICERS IN CHAIN OF COM-
22
MAND OF ACCUSED OR VICTIM.—Such section (article) is
23
further amended by adding at the end the following new
24
subsection:
25
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•S 1789 IS
‘‘(c) An officer specified in subsection (a)(8) may not
1
convene a court-martial under this section if the officer
2
is in the chain of command of the accused or the victim.’’.
3
(c) OFFICES OF CHIEFS OF STAFF ON COURTS-MAR-
4
TIAL.—
5
(1) OFFICES REQUIRED.—Each Chief of Staff
6
of the Armed Forces or Commandant specified in
7
paragraph (8) of section 822(a) of title 10, United
8
States Code (article 22(a) of the Uniform Code of
9
Military Justice), as amended by subsection (a),
10
shall establish an office to do the following:
11
(A) To convene general and special courts-
12
martial under sections 822 and 823 of title 10,
13
United States Code (articles 22 and 23 of the
14
Uniform Code of Military Justice), pursuant to
15
paragraph (8) of section 822(a) of title 10,
16
United States Code (article 22(a) of the Uni-
17
form Code of Military Justice), as so amended,
18
with respect to offenses to which section 2(a)
19
applies.
20
(B) To detail under section 825 of title 10,
21
United States Code (article 25 of the Uniform
22
Code of Military Justice), members of courts-
23
martial convened as described in subparagraph
24
(A).
25
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•S 1789 IS
(2) PERSONNEL.—The personnel of each office
1
established under paragraph (1) shall consist of such
2
members of the Armed Forces and civilian personnel
3
of the Department of Defense, or such members of
4
the Coast Guard or civilian personnel of the Depart-
5
ment of Homeland Security, as may be detailed or
6
assigned to the office by the Chief of Staff or Com-
7
mandant concerned. The members and personnel so
8
detailed or assigned, as the case may be, shall be de-
9
tailed or assigned from personnel billets in existence
10
as of the effective date for this Act specified in sec-
11
tion 6.
12
SEC. 4. DISCHARGE USING OTHERWISE AUTHORIZED PER-
13
SONNEL AND RESOURCES.
14
(a) IN GENERAL.—The Secretaries of the military
15
departments and the Secretary of Homeland Security
16
(with respect to the Coast Guard when it is not operating
17
as a service in the Navy) shall carry out sections 2 and
18
3 using personnel, funds, and resources otherwise author-
19
ized by law.
20
(b) NO
AUTHORIZATION
OF
ADDITIONAL
PER-
21
SONNEL OR RESOURCES.—Sections 2 and 3 shall not be
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