ANNUAL REPORT

Submitted to the

Committees on Armed Services

of the

United States Senate

and the

United States House of Representatives

and to the

Secretary of Defense

Secretary of Homeland Security

and the

Secretaries of the Army, Navy and Air Force

Pursuant to the

Uniform Code of Military Justice

for the period

October 1, 2016 to September 30, 2017
2

CONTENTS

Section 1: Joint Annual Report of the Code Committee 

Section 2: Report of the United States Court of Appeals for the 

Armed Forces

Section 3: Report of the Judge Advocate General of the Army

Section 4: Report of the Judge Advocate General of the Navy

and the Annual Military Justice Report of the 

Marine Corps

Section 5: Report of the Judge Advocate General of the Air 

Force

Section 6: Report of the Judge Advocate General of the Coast 

Guard
3

Section 1

Joint Annual Report of the Code Committee
4

Section 1

Joint Annual Report of the Code Committee 

Pursuant to the Uniform Code of Military Justice

October 1, 2016 to September 30, 2017

The Judges of the United States Court of Appeals for the Armed Forces, 

the Judge Advocates General of the Army, Navy, Air Force, and Coast Guard, 

the Staff Judge Advocate to the Commandant of the Marine Corps, and Dean 

Lisa Schenck and Mr. James E. McPherson, Public Members appointed by the 

Secretary of Defense, submit their annual report on the operation of the Uniform 

Code of Military Justice (UCMJ) pursuant to Article 146, UCMJ, Title 10, United 

States Code, § 946.

The Code Committee convened on Tuesday, March 7, 2017, to consider 

matters pertaining to the administration of military justice. The meeting was open 

to the public and was previously announced by notices in the Federal Register and 

on the Court’s website.

Then-Chief Judge Erdmann commented that the 2017 meeting of the Code 

Committee was likely the final or penultimate meeting due to the enactment of the 

Military Justice Act of 2016 (MJA). Because the MJA has not been implemented 

as of 7 March 2017, the Code Committee met as usual. Then-Chief Judge 

Erdmann noted that, although the Committee does not know when the MJA will be 

implemented, it will certainly be within the next two years. 

Colonel Huygen offered an amendment to the 2016 draft minutes 

concerning the Air Force’s implementation of a case management system. 

Colonel Huygen noted that the Air Force already has an automated case 

management system. In FY16 and FY17, the Air Force will continue to research 

and develop the next generation of this system. There was a motion to approve the 

minutes as amended. All members voted in favor of the motion, and the motion 

passed. 

Lieutenant Alexandra Nica, JAGC, USN, Executive Secretary of the Joint 

Service Committee on Military Justice (JSC), provided a briefing on the work of the 

JSC. LT Nica noted that much of her brief would focus significantly on the 

accomplishments and hard work of Major Harlye Carlton, USMC, and her team 

before the Navy took over JSC leadership. 

LT Nica explained that, in addition to the normal work of the JSC, a massive 

effort has been concentrated toward issuing implementation guidance, rules and 

regulation, MREs, and conforming changes regarding the MJA. 

The JSC’s personnel changes primarily consisted of a switch to Navy 
5

leadership and increased hours in order to prepare for and implement the MJA. LT 

Nica expressed gratitude to Captain Warren A. Record, JAGC, USN, and Mr. 

James Martinson for their leadership among the Navy personnel and civilian 

working group, respectively. The JSC is a collateral billet for personnel. However, 

since the MJA was enacted, working group meetings have increased from twice 

per month to approximately seven meetings per month and voting group meetings 

have increased from once per month to twice or more per month. 

The administrative matters portion of LT Nica’s briefing primarily involved 

the work of the predecessor group chaired by Colonel William N. Pigott, Jr., 

USMC. Administrative changes included the production of updated internal SOPs, 

a draft DoD instruction, and improved public transparency through a public site 

allowing submissions directly to the JSC via email. Additionally, the JSC has 

worked with Defense Digital Services to create the new Electronic Manual for 

Courts-Martial, which will allow the JSC to easily and more efficiently edit the MCM 

as changes occur.

Since the 2016 meeting of the Code Committee, the President issued EO 

13730, incorporating the results of the calendar year 2015 annual review on 15 

May 2016, and EO 13740, incorporating changes in the law since 2012. On 29 

November 2016, the JSC published proposed MCM amendments and executive 

summaries, holding a public hearing for commentary on 15 December 2016. The 

commentary period closed in January 2017, and the JSC is now working to 

adjudicate comments to best integrate them with the MJA. 

Notable changes include:

RCM 104(b)(1)(B) is amended to include civilian counsel in the class of victims’ 

counsel. There is also discussion to include Navy and Marine Corps terms for 

Victims’ Legal Counsel.

RCM 601(d)(2)(B) is amended to specifically refer to the requirement for pretrial 

advice received pursuant to Article 34. 

RCM 701(g)(2) is amended to instruct when a military judge must seal materials.

RCM 704(c), (c)(1), and (e) are amended to allow—subject to service 

regulations—general court-martial convening authorities to delegate the authority 

to grant immunity to special court-martial convening authorities.

RCM 704(c)(1) and (2) are amended to reference the complete chapter in the 

United States Code covering grants of immunities.

RCM 1103(b) is amended to eliminate the difference between general and special 

courts-martial with respect to verbatim transcripts.
6

RCM 1103A is amended to clarify procedures for examining and disclosing sealed 

material throughout the court-martial and post-trial review process. 

MRE 311(c)(4) and (d)(5)(A) are amended to permit admission of otherwise 

unlawfully obtained evidence if the official seeking the evidence acted on 

reasonable reliance on binding precedent valid at the time (the good faith 

exception from Davis v. United States, 564 U.S. 229, (2011)). 

MRE 505(l) and 506(m) are amended to account for in camera reviews and to 

conform with amendments to RCM 701(g)(2).

MRE 513 and 514 are amended to refer practitioners to RCM 701(g)(2) and 

1103A.

The JSC also received public and service commentary—mostly regarding 

RCM 1103A—which is currently being adjudicated. Additionally, the Judicial 

Proceedings Panel (JPP) has shown interest and conducted meetings with respect 

to changes in RCM 1103A; the JSC has provided public comments to the JPP in 

an effort to ensure transparency. 

LT Nica noted that, given the complexity of commentary and overhaul from 

the MJA, the JSC has voted to make holistic changes: instead of an EO for yearend review and another implementing changes from the MJA, the JSC has elected 

to provide to the public and services one new product—the entire Manual for 

Courts-Martial—hopefully in Spring 2017. 

Several supplemental and regulatory materials have been published to 

accompany the 2012 Manual for Courts-Martial. From March to November 2016,

the Federal Register published JSC-submitted, DoD General Counsel-approved 

supplemental materials to accompany the 2012 Manual for Courts-Martial as 

amended by EOs 13643, 13669, 13696, and 13730. In December 2016, the 

Federal Register announced the publication of the Manual for Courts-Martial, 2016 

Edition, and amendments that were made to the preface, table of contents, 

appendices, and index. This required the JSC to review all the aforementioned 

supplementary materials. On 16 August 2016, in response to EO 13730, the JSC 

delivered a letter to the Judge Advocates General of each service branch 

regarding Court of Criminal Appeals Rules of Procedure, Rule 20 regarding 

petitions for extraordinary relief answer and reply. 

LT Nica also briefed the committee on the following JSC studies:

 Sentencing Interim Working Guidance Group. The Sentencing Interim 

Working Guidance Group has been drafting sentencing parameters and 

criteria in anticipation of the Senate version of the MJA. On 20 September 

2016, the Group turned in its draft parameters and criteria; the MJA bill was 

enacted without any requirement for sentencing parameters or criteria.
7

 Mental Health Report. Mental Health Report 1 was aimed at studying the 

optimal balance between victim privacy interests, law enforcement, and due 

process interests of accused service members. It is also concerned with 

studying the potential benefits of uniform guidance for the release of mental 

health information and records. The Report was submitted 28 April 2016, 

after which DoD OGC submitted a follow-on information request regarding 

requests for mental health records and recommendations as to what best 

practices should be implemented. The JSC reported back to DoD on 22 

December 2016. 

 Victim Collateral Misconduct in Sexual Assault Cases Subcommittee 

Report. This subcommittee was tasked, in response to Response Systems 

Panel (RSP) Recommendation 60, to review issues related to collateral 

misconduct in sexual assault cases, notably the appropriateness of 

automatic immunity for alleged victims of sexual assault for lower level 

collateral misconduct. The report recommended granting delegation 

authority to the convening authority for general courts-martial to allow 

special court-martial convening authorities to grant immunity. This language 

was a proposed addition to R.C.M. 704. The report also includes discussion 

encouraging the expediting of immunity requests for collateral misconduct in 

sexual assault cases. This language was incorporated into a Discussion to 

R.C.M. 704. The convening authorities retain discretion over whether to 

grant immunity. During LT Nica’s briefing on this subject, Judge Stucky and 

Judge Ryan expressed concern with RSP’s initial recommendation that the 

JSC consider automatic grants of immunity for lower level collateral 

misconduct in sexual assault cases. No automatic grant of immunity was 

adopted.

 Proposed Amendment to RCM 1103A allowing Defense Advisory 

Committee on the Investigation, Prosecution, and Defense of Sexual 

Assault (DACIPAD) to access sealed information. The JSC was tasked by 

DoD OGC to provide a proposed amendment to RCM 1103A allowing 

DACIPAD to access sealed information. However, the JSC voting group 

decided that there were significant privacy concerns attached to DACIPAD’s 

access to sealed material. Additionally, DACIPAD’s first meeting revealed 

that DACIPAD had no expectation or need to review sealed materials. DoD 

OGC approved JSC’s determination that DACIPAD should not access 

sealed materials. Dean Schenck expressed concern that DACIPAD will be 

called to review cases in which it cannot view sealed material related to the 

case. This issue may be revisited if DACIPAD identifies such a need and 

requests access to these materials.
8

Implementation of the 2016 Military Justice Act 

LT Nica noted that implementation of the Military Justice Act of 2016 has 

taken up a great deal of JSC’s time. The working group and voting group’s 

meetings have accelerated: three-to-four hour meetings have turned into eight 

hour meetings and the number of meetings has increased to several times per 

month, if not weekly. Once voted and approved, the MCM will be formatted for 

publication on the Federal Register via a notice and direction to go to a website. 

The entire MCM will be on the site for comment. There will be no separate calls for 

proposals this year, as the JSC has elected to take the holistic approach and make 

one release with the new MCM. Because Army Publishing Division can no longer 

be used, future MCMs will be released electronically; there will, however, be 

hardcopy manuals published and made available for the Manual for Courts-Martial, 

2016 Edition. 

Briefings from the services:

Army

Major General Thomas E. Ayres, representing the Judge Advocate General 

of the Army, began by comparing the Army’s three primary activities from last year 

and describing how one of the three has changed. Last year the Army was: 1) 

fighting a counterinsurgency and counterterrorism threat in Iraq, Syria, and 

Afghanistan; 2) preparing for future conflicts against near-peer competitors, and 3) 

downsizing. While the first two endeavors remain, the Army is now growing instead 

of downsizing. Last year, active duty personnel decreased from 490,000 to 

475,000 (the smallest force since WWII), but have now increased to 496,000. The 

Army JAG Corps has increased from a previous low of 1,803 to 1,819 active duty, 

with expected growth in the coming year. The JAG reserve component is up to 

1,814 in the National Guard and 891 U.S. Army Reserve. 

While forces have increased, the numbers of courts-martial have slightly 

decreased from 826 to 795, consisting of 558 general courts-martial and 237 

special courts-martial. The Army has continued to focus on sexual assault through 

the use of Special Victims Counsel (SVC), growing from 23 to a total of 46 

authorizations. The Army also added 23 Special Victims Prosecutors as well as 23 

Special Victim Witness Liaisons. The Army has refined their SVC from 138 to 90 

active duty SVC, with 221 Army Reserve and National Guard SVC, representing a 

total of 958 clients. 

Major General Ayres noted that the Army’s other initiatives focus on 

transparency and efficient training to adapt to the MJA. The Army is seeking to 

increase transparency by requesting that external entities evaluate individual 

military justice training within the Army. Major General Ayres also explained that 

the Army is developing its operational planning team into a training team which 

would travel to various installations and provide training on the MJA, with an 

emphasis on post-trial changes. 
9

Navy

On behalf of Vice Admiral James W. Crawford III, the Judge Advocate 

General of the Navy, Colonel Daniel Lecce, USMC, Assistant Judge Advocate 

General for Military Justice, delivered a brief focused on the current state of the 

Navy, courts-martial and post-trial review numbers, and military justice 

developments. 

The Navy currently holds a force of 323,000 active duty sailors, 108,000 

reserve sailors, 912 active duty JAG officers, 395 reserve JAG officers, and 515 

active duty legalmen. This year the Navy had 123 general courts-martial, up from 

118 last year. Special courts-martial, however, decreased to 135 this year from 

157 last year. Summary courts-martial also decreased to 30 this year from 32 last 

year. Post-trial review of general courts-martial has remained fairly steady, 

increasing from 195 to 197 while reviews of special courts-martial have increased 

from 160 to 184. There were 22 Article 69 reviews.

Colonel Lecce dedicated a significant portion of his briefing to outlining the 

Navy’s developments in military justice. The Navy currently has 77 military justice 

litigation career track JAG officers, 63 of whom are billeted in jobs specifically 

coded for military justice litigation career track officers. The Navy also maintains a 

special victims investigation and prosecution capability comprised of speciallytrained prosecutors and defense counsel, with Commander and Lieutenant 

Commander senior trial counsel selected by VADM Crawford. Colonel Lecce noted 

that almost all the aforementioned counsel have LLMs in trial advocacy. 

Colonel Lecce went on to remark that the Navy has enhanced its Trial 

Counsel Assistance Program (TCAP) and its Defense Counsel Assistance 

Program (DCAP). TCAP is being run by a Navy Captain military justice career 

track expert, assisted by a GS-15 expert deputy with extensive experience in child 

sexual abuse case-handling. DCAP’s director is career track-qualified and holds an 

LLM in litigation and dispute resolution; another highly qualified expert has been 

hired and is due onboard in the coming months. 

The Navy’s Defense Services Organization (DSO) also continues to grow 

stronger. The Navy has added defense legal service specialist positions that have 

become integral to DSO. These defense legal specialists can conduct 

investigations independent of military criminal investigative organizations and are 

located at major personnel and fleet concentration areas. 

The Navy’s Victims’ Legal Counsel (VLC) program has remained robust and 

growing, currently consisting of 32 JAG officers and 10 administrative support 

personnel. This year, 16 Navy VLC’s participated in 892 military justice 

administrative proceedings and conducted 543 outreach briefs. The VLC program 

has expanded to cover child victims assaulted by active duty service members; 

training has also been expanded to cover appellate matters. 

Air Force

Colonel Julie Huygen, Chief of the Military Justice Division at the Air Force 

Legal Operations Agency, representing Lieutenant General Chris Burne, Judge 
10

Advocate General of the Air Force, focused her briefing on highlights from fiscal 

year 2016, including a completed circuit alignment and continuing efforts to 

increase transparency. 

Colonel Huygen noted that, by 30 September 2016, the Air Force had 1,278 

active duty JAG officers supported by 829 paralegals and 906 Department of the 

Air Force civilian employees; 389 paralegals and 971 Air Force JAG officers were 

serving in a reserve capacity. In 2015-2016, the Air Force received authorizations 

to handle an increased workload with regard to sexual assault response, including 

an expansion of eligibility for SVC services. In 2016, the Air Force filled some of 

the additional authorizations, adding 6 senior trial counsel for a total of 24 filled 

authorizations. These filled authorizations include 11 qualified special victims unit 

senior trial counsel. The Air Force added senior defense counsel—tasked with 

supervising and mentoring 84 area defense counsel and 74 defense paralegals 

across the Air Force—to increase from 19 to 21 senior defense counsel. Finally, 21

authorizations for special victims paralegals were filled. In sum, the Air Force has 

46 special victims paralegals, 50 SVC, and 6 senior SVC across 42 installations 

worldwide. 

Colonel Huygen described the Air Force’s completed circuit alignment, 

which established five geographic circuit offices located at:

1. Joint Base San Antonio-Randolph (TX)

2. Joint Base Langley-Eustis (VA)

3. Travis AFB (CA)

4. Kadena Air Base (Japan)

5. Ramstein Air Base (Germany)

Each base has been allocated senior litigators and military judges to 

increase efficiency, promote civility, and maximize training. Training volume and 

efficiency have increased since the circuit alignment. Senior trial counsel at these 

offices provided over 2,000 hours of training for junior trial counsel, and Joint Base 

Andrews hosted the first circuit annual training in August 2016. The Air Force also 

relocated enlisted court reporters at the circuit offices in order to improve efficiency 

of docketing for courts-martial across the Air Force. 

The Air Force continues to increase transparency to the public at large as 

well as to service members. The main tool being used to accomplish this goal is a 

public website with increased functional utility. The website provides automated 

docketing information with a worldwide schedule of general and special courtsmartial, regardless of location. An automated trial results function has been added 

to post trial results within 24 hours of their validation; this system seeks to promote 

transparency but is also careful to maintain and protect the privacy interests of 

airmen acquitted of some or all of the offenses for which they are tried. The Air 

Force will also continue to publish monthly trial results with information on the 

effect of pretrial agreements and is currently working toward incorporating those 

effects into its automated reporting system.
11

Coast Guard

Rear Admiral Steven J. Andersen, Judge Advocate General of the Coast 

Guard, briefed the Committee on the current state of Coast Guard military justice. 

The Coast Guard remains relatively stable, with a personnel force just over 40,000 

strong, including 7,000 reservists. The Coast Guard saw a slight increase in Judge 

Advocates this year, up to 223 active duty Judge Advocates, approximately 25% of 

whom are currently serving out of specialty; this includes four Judge Advocate flag 

officers not serving in a legal capacity. The increase in personnel has mainly 

stemmed from efforts to consolidate prosecution efforts in Norfolk and Alameda, 

where the Coast Guard is working to station two full-time prosecutors handling 

serious misconduct. This year also saw an increase in Judge Advocates detailed 

to the Navy serving as defense counsel at DSO. The Coast Guard has 107 civilian 

attorneys as well. 

RDML Andersen noted that, over the past few years, the Coast Guard has 

enjoyed a steady case load. With regard to sexual assault cases, criminal 

investigations—and resulting trials—are trending downward. 

At the end of RDML Andersen’s brief, Chief Judge Erdmann asked if the 

Coast Guard was continuing to use Navy judges on its courts. RDML Andersen 

responded that the Coast Guard is moving from one to three full-time trial judges, 

but still receives judges from other branches of service. While the Coast Guard will 

continue to maintain collateral duty judges, those individuals will begin to shift to a 

magistrate function, eventually preparing to serve as full-time trial judges. 

Marine Corps: 

Major General John R. Ewers Jr., Staff Judge Advocate to the Commandant 

of the Marine Corps, briefed the Committee on the state of the Marine Corps 

military justice year-in-review. General courts-martial have increased, and the 

small number of special courts-martial has decreased; there has, however, been 

an increase in pending courts-martial. The Marine Corps’ military justice “triad” 

consists of 80 trial counsel, 70 defense counsel, and 18 VLC. Trial counsel is 

supported by TCAP and defense counsel is supported by DCAP, while obtaining 

an appellate capability for VLC—representing all victims, not just of sexual 

assault—is still a goal. General Ewers described the Marine Corps’ main challenge 

as maintaining and enhancing capability without the ability to increase 

representatives. The Marine Corps will attempt to accomplish this goal through 

innovation, including imported expertise from highly-qualified experts, playbooks, 

checklists, competition, and other measures simulating trial. The Marine Corps 

does not have a plan to move to a military justice track.

Separate reports of the United States Court of Appeals for the Armed 

Forces and the individual services address further items of special interest to the 

Committees on Armed Services of the United States Senate and the United 

States House of Representatives, as well as the Secretaries of Defense, 

Homeland Security, Army, Navy, and Air Force.
12

Scott W. Stucky

Chief Judge

Margaret A. Ryan

Judge

Kevin A. Ohlson

Judge

John E. Sparks

Judge

Major General Thomas E. Ayres, U.S. Army

Representing the Judge Advocate General of the Army

Major General John R. Ewers, Jr., U.S. Marine Corps

Staff Judge Advocate to the Commandant of the Marine Corps

Rear Admiral Steven J. Andersen, U.S. Coast Guard

Judge Advocate General of the Coast Guard

Colonel Daniel J. Lecce, U.S. Marine Corps

Representing the Judge Advocate General of the Navy

Colonel Julie J.R. Huygen, U.S. Air Force 

Representing the Judge Advocate General of the Air Force

Dean Lisa M. Schenck

Public Member

Mr. James E. McPherson

Public Member 
13

Section 2

Report of the United States Court of Appeals for the Armed Forces
14

REPORT OF THE UNITED STATES 

COURT OF APPEALS FOR THE ARMED FORCES

October 1, 2016 to September 30, 2017

The Judges of the United States Court of Appeals for the Armed Forces submit 

their Annual Report on the administration of the Court and military justice during the 

October 2016 Term of Court to the Committees on Armed Services of the United 

States Senate and the United States House of Representatives, and to the 

Secretaries of Defense, Homeland Security, Army, Navy, and Air Force in accordance 

with Article 146, Uniform Code of Military Justice (UCMJ), Title 10, United States 

Code, § 946.

Chief Judge Charles E. “Chip” Erdmann completed his 15-year term on July 31, 

2017, passing the gavel to Chief Judge Scott W. Stucky in a ceremonial session held 

on May 24, 2017. During the same session, the Court honored the service of the 

long-serving Clerk of the Court, Mr. William A. DeCicco, on the occasion of his 

retirement. With the completion of now-Senior Judge Erdmann’s term, the Court was 

reduced to four Judges at the end of this Term of Court. 

THE BUSINESS OF THE COURT

The filing and disposition of cases are set forth in the attached statistical report 

and graphs for the period from October 1, 2016 to September 30, 2017. Additional 

information pertaining to specific opinions is available from the Court’s published 

opinions and Daily Journal. Other dispositions may be found in the Court’s official 

reports, the Military Justice Reporter, and on the Court’s website. The Court’s website 

also contains a consolidated digest of past opinions of the Court, information on the 

Court’s history and jurisdiction, the Rules of Practice and Procedure, previous Annual 

Reports, a schedule of upcoming hearings, audio recordings of past hearings, and 

information on clerkship opportunities, bar admission, electronic filing, and the Court’s 

library.

On October 2, 2015, the Court modified the Term of the Court to begin on 

October 1 of each year and to end on September 30 of the following calendar year. For 

last year’s report, this change resulted in a Term of Court spanning 13 months instead 

of 12 months. This report describes the Court’s first 12-month Term of Court under the 

modified schedule.

During the October 2016 Term of Court, the Court met its goal of issuing 

opinions in all cases heard during the Term prior to the end of the Term. An informal 

summary of selected decisions is set forth in Appendix A.
15

RULES OF PRACTICE AND PROCEDURE

During the October 2016 Term, the Court approved changes to Rules 3A(a) and 

21(a) of the Court’s Rules of Practice and Procedure. The changes to Rules 3A(a) and 

21(a) were made to correspond with legislative changes to Senior Judge pay structure 

and to resolve tension between Rule 21(a) and Rule 21(e).

The changes to Rule 3A(a) regarding Senior Judge pay were approved to 

correspond to the 2017 National Defense Authorization Act (2017 NDAA). The 2017 

NDAA amended Article 142(e)(2), UCMJ, to provide that, instead of stopping a Senior 

Judge’s annuity while in active service, the Senior Judge performing judicial duties 

shall continue to receive the annuity in full, and also receive additional pay equal to the 

difference between the daily equivalent of the annual rate of pay provided for a Judge 

of the Court and the daily equivalent of retired pay of the Judge under Article 145, 

UCMJ.

The changes to Rule 21(a) were approved to settle tensions between Rule 

21(a)’s mandate that good cause “must” be shown by an appellant and Rule 21(e)’s 

proviso that “no issue” petitions will be reviewed by the Court without waiting for an 

answer. The Rules Committee unanimously voted that the words “should appear” will 

replace “must appear” in Rule 21(a). 

BAR OF THE COURT

During the October 2016 Term, 157 attorneys were admitted to practice before 

the Court, bringing the cumulative total of admissions to the Bar of the Court to 

36,941.

JUDICIAL OUTREACH

In furtherance of a practice established in 1987, the Court scheduled special 

sessions and heard oral arguments outside its permanent courthouse in Washington, 

D.C. during the October 2016 Term of Court. This practice, known as “Project 

Outreach,” was developed as part of a public awareness program to demonstrate the 

operation of a Federal Court of Appeals and the military’s criminal justice system. The 

Court conducted hearings during this period, with the consent of the parties, at the 

University of Colorado Law School in Boulder, CO, Peterson Air Force Base in 

Colorado Springs, CO, Notre Dame Law School in South Bend, IN, and the Claude W. 

Pettit College of Law at Ohio Northern University in Ada, OH. Inaddition, the Judges of 

the Court participated in a variety of professional training, speaking, and educational 

endeavors on military installations, at law schools, and before professional groups.
16

CONTINUING LEGAL EDUCATION AND TRAINING PROGRAM

On March 8 and 9, 2017, the Court held its Continuing Legal Education and 

Training Program at the American University Washington College of Law in 

Washington, D.C. The program opened with welcoming remarks from the Honorable 

Charles E. “Chip” Erdmann, then the Chief Judge, United States Court of Appeals for 

the Armed Forces. He preceded the following speakers: Colonel Frederic L. Borch III, 

U.S. Army (Retired), Regimental Historian and Archivist at the Judge Advocate 

General’s Legal Center and School; Emily Feltren, Director of Government Relations at 

the American Association of Law Libraries; Brenner M. Fissell, Affiliated Scholar at the 

Georgetown University Law Center and former clerk to current Chief Judge Scott W. 

Stucky, United States Court of Appeals for the Armed Forces; Alexander P. “Alex” 

Berrang, Assistant U.S. Attorney for the Eastern District of Virginia; The Honorable 

Scott W. Stucky, now the Chief Judge, United States Court of Appeals for the Armed 

Forces; a panel consisting of Andrew S. Effron, Senior Judge, United States Court of 

Appeals for the Armed Forces and Director, Military Justice Review Group, Dwight 

Sullivan, Senior Associate Deputy General Counsel (Military Justice and Personnel 

Policy) at the Department of Defense, and Captain Art Record, United States Navy, 

Judge Advocate General’s Corps; James Young, Commissioner for current Chief Judge 

Scott W. Stucky; Elizabeth L. “Liz” Lippy, Assistant Director of the Trial Advocacy 

Program at the American University Washington College of Law; and James E. Baker, 

Senior Judge, United States Court of Appeals for the Armed Forces and Visiting 

Professor at the Georgetown University Law Center.

Scott W. Stucky 

Chief Judge

Margaret A. Ryan 

Judge

Kevin A. Ohlson 

Judge

John E. Sparks, Jr. 

Judge
17

APPENDIX A – SELECTED DECISIONS

This appendix contains an informal staff summary of selected decisions of the 

October 2016 Term of Court. A full list and summary of the cases decided by the 

Court during the Term, including any related concurrences and dissents, can be found 

on the Court’s website.

United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. 2016), holding that the issue of 

whether concurrent service by a military appellate judge on an Air Force Court of 

Criminal Appeals (AFCCA) panel and as a Judge on the United States Court of 

Military Commission Review (USCMCR) was constitutionally or statutorily prohibited 

was moot.

Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. 2017), dismissing the 

accused’s petition for review of the Coast Guard Court of Criminal Appeals’ decision 

granting mandamus relief to the alleged victim. The Court held that it lacked jurisdiction 

to consider the petition under either the UCMJ or the All Writs Act.

United States v. Sager, 76 M.J. 158 (C.A.A.F. 2017), holding that Article 120(d)’s 

prohibition of sexual contact with someone who is “asleep, unconscious, or otherwise 

unaware” creates three separate theories of criminal liability.

United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017), holding that a military 

appellate judge’s appointment to the USCMCR did not terminate his military 

commission, and did not prohibit the military appellate judge’s service on the AFCCA 

panel that decided appellant’s case; and that the Appointments Clause of the 

Constitution did not prohibit his continued service as an appellate military judge. 

United States v. Haverty, 76 M.J. 199 (C.A.A.F. 2017), holding that, to violate 

Article 92, UCMJ, proscribing the violation of, or failure to obey, “any lawful general 

order or regulation,” to wit, an Army Regulation prohibiting hazing, the accused must 

consciously disregard a known risk that the hazing conduct is cruel, abusive, 

oppressive, or harmful, therefore requiring a mens rea of recklessness; and that the 

military judge’s failure to instruct on mens rea, particularly the requirement that the 

accused acted with recklessness, was prejudicial and amounted to plain error. 

United States v. Hukill, 76 M.J. 210 (C.A.A.F. 2017), holding that evidence of one 

charged and contested offense may not be used as propensity evidence for another 

separate charged offense; and that admitting such evidence was error which was not 

harmless beyond a reasonable doubt. 

United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017), holding that alleged 

unlawful command influence—where the Chief of Staff of the Air Force advised the 

convening authority that, unless he retired, he would be fired—did not prejudice the 

accused, but that, where an objective and disinterested observer with knowledge of the 

case would harbor significant doubts about the fairness of the proceedings, the 
18

appearance of unlawful command influence required reversal of the findings and 

sentence without prejudice. 

United States v. Oliver, 76 M.J. 271 (C.A.A.F. 2017), holding that trial defense 

counsel’s affirmative response of no objection to the military judge’s consideration of 

wrongful sexual contact as a lesser included offense of abusive sexual contact was a 

forfeiture, not a waiver, of the right to argue against such consideration on appeal; and 

that, though the military judge erred in considering wrongful sexual contact as a lesser 

included offense of abusive sexual contact, such consideration was not plain error 

where the accused suffered no prejudice. 

United States v. Shea, 76 M.J. 277 (C.A.A.F. 2017), holding that the accused did 

not have a right, on remand from this Court, to a panel composed of the same appellate 

judges who originally reviewed his case; and that the accused did not meet his burden 

to show some evidence of apparent unlawful command influence. 

United States v. Cooley, 75 M.J. 247 (C.A.A.F. 2016), holding that the charge 

of sexual abuse of a child was without legal basis where a change to the specification 

of the charge was major, the accused objected to the change, and the charge was not 

preferred again after the change; and that the accused was not required to make a 

separate showing of prejudice, overruling United States v. Sullivan, 42 M.J. 360 

(C.A.A.F. 1995), United States v. Smith, 49 M.J. 269 (C.A.A.F. 1998), United States v. 

Brown, 34 M.J. 105 (C.M.A. 1992), and United States v. Johnson, 12 C.M.A. 710, 31 

C.M.R. 296 (1962); and that a new Article 134, UCMJ, charge for making a statement 

to a child that was of a nature to bring discredit upon the armed forces failed to state 

an offense. 

United States v. Commisso, 76 M.J. 315 (C.A.A.F. 2017), holding that three 

panel members inaccurately answered material questions during voir dire and 

subsequently failed to correct them during the court-martial; that the accused would 

have otherwise had a valid basis for challenging those three members for cause; and 

that a post-trial hearing to determine the accuracy of these panel members’ answers 

during voir dire failed to adequately remedy the members’ dishonesty and potential for 

the accused to issue a challenge for implied bias. 

United States v. Ramos, 76 M.J. 372 (C.A.A.F. 2017), holding that special agents 

had a duty to provide an Article 31(b), UCMJ, rights warning to a servicemember before 

continuing to ask questions regarding his wife’s marijuana growing business once the 

agents began to suspect that the servicemember’s involvement violated provisions of 

the UCMJ; and that the subsequent use of the unwarned statements of the accused in 

response to those questions as the basis for his conviction of making a false official 

statement prejudiced the accused’s substantial rights. 

United States v. Gurczynski, 76 M.J. 381 (C.A.A.F. 2017), holding that the 

search of a portable hard drive was not constitutionally reasonable and that the military 

judge did not abuse his discretion in suppressing evidence of an offense not named in 
19

the warrant as outside the warrant’s scope. 

United States v. Forrester, 76 M.J. 389 (C.A.A.F. 2017), holding that the 

accused’s conviction and sentencing for four specifications of possession of child 

pornography was not multiplicitous in violation of the Double Jeopardy Clause where 

each conviction involved the same images, but each specification involved 

possession taking place on four separate and distinct electronic devices. 

United States v. Mitchell, 76 M.J. 413 (C.A.A.F. 2017), holding that asking the 

accused, without counsel, for his phone’s passcode violated the accused’s Fifth 

Amendment right against self-incrimination; and that evidence derived from the Fifth 

Amendment violation must be suppressed; but that the phone itself should not have 

been suppressed. 
20

USCAAF STATISTICAL REPORT 

OCTOBER 2016 TERM OF COURT

CUMULATIVE SUMMARY

CUMULATIVE PENDING OCTOBER 1, 2016

Master Docket 30

Petition Docket 72

Miscellaneous Docket 3

TOTAL 105

CUMULATIVE FILINGS

Master Docket 267

Petition Docket 587

Miscellaneous Docket 17

TOTAL 871

CUMULATIVE DISPOSITIONS

Master Docket 257

Petition Docket 588

Miscellaneous Docket 14

TOTAL 859

CUMULATIVE PENDING OCTOBER 1, 2017

Master Docket 40

Petition Docket 71

Miscellaneous Docket 6 

TOTAL 117

OPINION SUMMARY

CATEGORY SIGNED PER CURIAM MEM/ORDER TOTAL

Master Docket 39 1 217 257

Petition Docket 0 1 587 588

Miscellaneous Docket 0 0 14 14

TOTAL 39 2 818 859
21

MASTER DOCKET SUMMARY

PENDING AT BEGINNING OF TERM 30

FILINGS

Petition granted from the Petition Docket 258

Certificates filed 8

Mandatory appeals filed 1

Remanded/Returned cases 0

TOTAL 267

DISPOSITIONS

Affirmed 215

Reversed in whole or in part 42

 Certificates dismissed 0

TOTAL 257

PENDING AT END OF TERM

Awaiting briefs 12

Awaiting oral argument 18

Awaiting lead case decision (trailer cases) 5

Awaiting final action 5

TOTAL 40

PETITION DOCKET SUMMARY

PENDING AT BEGINNING OF TERM 72

FILINGS

Petitions for grant of review filed 585

Petitions for new trial filed 2

Returned cases 0

TOTAL 587

DISPOSITIONS

Petitions for grant of review denied 328

Petitions for grant of review granted 252

Petitions for grant of review withdrawn 2

Petitions for grant of review dismissed 6

TOTAL 588
22

PENDING AT END OF TERM

Awaiting pleadings 22

Awaiting staff review 13

Awaiting final action 36

TOTAL 71

MISCELLANEOUS DOCKET SUMMARY

PENDING AT BEGINNING OF TERM 3

FILINGS

Writ appeals sought 5

Writs of habeas corpus sought 3

Writs of coram nobis sought 2

Other extraordinary relief sought 7 

TOTAL 17

DISPOSITIONS

Petitions or appeals denied 12

Petitions or appeals granted 0

Petitions or appeals dismissed 1

Petitions or appeals withdrawn 1

TOTAL 14

PENDING AT END OF TERM

Awaiting briefs 0

Awaiting staff review 2

Awaiting final action 4

TOTAL 6
23

PETITIONS FOR RECONSIDERATION

ALL CASES DISPOSITIONS

Begin pending 4 Denied 19

Filed 23 Granted 6

TOTAL 27 Dismissed 0

TOTAL 25

End Pending 2

MOTIONS

ALL MOTIONS DISPOSITIONS

Begin pending 5 Granted 347

Filed 408 Denied 64

TOTAL 413 Dismissed 0 

TOTAL 411

End Pending 2
24
25
26
27
28
29
30
31
32
33

Section 3

Report of the Judge Advocate General of the Army 
34

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE ARMY

OCTOBER 1, 2016 TO SEPTEMBER 30, 2017

 In fiscal year 2017 (FY17), The Judge Advocate General (TJAG) advised Army 

leadership on significant issues pertaining to military justice, to include high visibility 

cases and investigations. The Office of The Judge Advocate General (OTJAG) 

continued to implement programs improving both the administration of military justice 

and advocacy skills of military justice practitioners. In furtherance of TJAG’s duties 

under Article 6(a), Uniform Code of Military Justice (UCMJ), TJAG and senior leaders in 

the Judge Advocate General’s Corps (JAGC) conducted 16 visits to installations and 

commands in the United States and overseas to inspect the delivery of military justice 

support to commanders and Soldiers. The JAGC remains committed to sustaining 

excellence in the practice of military justice through a variety of initiatives and programs. 

OTJAG CRIMINAL LAW DIVISION

 The OTJAG, Criminal Law Division (CLD) has two primary missions. First, the CLD 

advises TJAG on military justice policy and practice. Specific responsibilities include: 

promulgating military justice regulations; reviewing other Army Regulations for legal 

sufficiency; providing legal opinions to the Army Staff related to military justice matters; 

producing and updating military justice publications to include the Manual for CourtsMartial (MCM); conducting statistical analysis and evaluation of trends that affect 

military justice within the Army; providing legal advice on military corrections issues, the 

Army drug testing program, sexual assault and domestic violence victim assistance 

policies, and federal prosecutions; representing the Army on the Joint Service 

Committee (JSC) on Military Justice; responding to inquiries from the President, 

Congress, Department of Defense (DoD) and the Army Staff; responding to inquiries 

under the Freedom of Information Act (FOIA); and conducting reviews of court-martial 

cases under Article 69 of the UCMJ to ascertain legal sufficiency, sentence 

appropriateness, and to identify issues that may require corrective action by TJAG. 

 Second, the CLD provides comprehensive policy guidance and resources to military 

justice practitioners in the field, which includes a special emphasis on training (including 

training related to sexual assault litigation) and programs designed to guarantee long 

term military justice proficiency worldwide across all grades. The CLD facilitates the 

active integration and synchronization of training by coordinating quarterly training and 

budget meetings with the Corps’ key training arms: Trial and Defense Counsel 

Assistance Programs (TCAP and DCAP) and The Judge Advocate General’s Legal 

Center and School (TJAGLCS). The CLD manages software initiatives for JAGC-wide 

application and facilitates active information flow to and from the field using web-based 

media. This allows not only the internal flow of information but also allows greater 

transparency as we post monthly court-martial results of trial in the FOIA Reading 

Room. 
35

 Traditionally reported CLD actions for the last three fiscal years are listed below. 

 

 The CLD chairs regular meetings of the Military Justice Initiatives Council (MJIC), 

with membership consisting of key stakeholder organizations within the Army JAGC 

(such as TJAGLCS, TCAP, DCAP, Defense Appellate Division (DAD), Government 

Appellate Division (GAD), and the U.S. Army Trial Judiciary) that deal with military 

justice matters. The MJIC’s purpose is to examine key military justice issues, to 

reconcile points of view regarding those issues, and as appropriate, to propose feasible, 

achievable, and sustainable solutions. In FY17, some of the issues worked on included 

Additional Skill Identifiers (ASIs) and the Congressionally mandated Pilot Program, as 

well as the implementation within the Army JAGC of key provisions of the Military 

Justice Act of 2016 (MJA ’16, see below for further discussion). 

 The Military Justice Additional Skill Identifier (ASI) program continues to grow. The 

purpose of the program is to help generate and sustain expertise, to provide incentives 

to attend training, and to assist in the selection of personnel for key military justice 

positions. To date, 1,684 judge advocates have been awarded skill identifiers: 833 

basic, 545 senior, 214 expert, and 92 master military justice practitioners. Importantly 

during FY17, ASI applicants were instructed to ensure that required letters of 

recommendations had information that clearly indicated that applicants could 

demonstrate significant and substantial involvement in a number of courts-martial, with 

that involvement being detailed by the recommending official. This new requirement 

thus provides for a further qualitative dimension to the ASI program.

 The CLD participates in inspections three times per year of the Forensic Drug 

Testing Laboratories at Fort Meade, MD and Tripler Army Medical Center, HI. These 

inspections are intended to ensure that the laboratory results are forensically acceptable 

and that the laboratories are following DoD and Army policy guidance. The CLD 

attorney participation is intended to assist in ensuring not only that the laboratory results 

are forensically acceptable (which protects both the government and the Soldier), but 

also to ensure that the results may be used in administrative and judicial proceedings if 

required.

 The CLD actively supports the JSC mission with the Chief, CLD (O6) serving as a 

voting group member and the Chief, Policy Branch, CLD (O5) serving as a working 

group member. The CLD participated in the JSC drafting of one Proposed Executive 

Order (PEO). The PEO contained recommended amendments to Rules for CourtMartial (RCM) 104, 601, 701, 704, and 1103 and amendments to Military Rules of 

FY15 FY16 FY17

Congressional and other inquiries 120 148 158

Officer Dismissals 18 32 30

Article 69 and other reviews 68 137 72

Freedom of Information/Privacy Act 

Requests 16 23 20 
36

Evidence (Mil. R. Evid.) 311, 505, 506, 513, and 514. Copies of PEOs and EOs are 

located on the JSC webpage at http://jsc.defense.gov. The JSC is currently revising the 

MCM to reflect all of the changes in the FY17 NDAA with a new edition printed for 

distribution prior to 1 January 2019. 

 On 29 August 2017, the DoD General Counsel authorized the formation of a JSC 

subcommittee to study and make recommendations concerning the implementation of 

the new Article 140a, UCMJ. Article 140a covers case management, data collection, 

and accessibility within the military justice system. The new JSC-140a subcommittee

will provide its findings and recommendations to the JSC in July 2018 and is chaired by 

an O-5 from CLD.

 The Military Justice Review Group (MJRG) continued to make recommended 

changes throughout this year. The JSC was intensely involved with reviewing, editing 

when necessary, and voting on those recommended changes. As a result of the MJRG 

and JSC efforts, the President will enact the MJA ’16 when he signs the FY17 NDAA in 

the beginning of calendar year 2018 (CY18) when he signs the EO. 

 The MJA ’16 represents the most significant changes to the UCMJ in more than 30 

years. Significant changes include limited pre-referral authority for military judges; a 

new military judge alone special court-martial; fixed numbers of panel members, (4 for 

special courts-martial, 8 for general courts-martial, and 12 for capital cases); an 

increase to 3/4ths in the required number of votes for a guilty finding by members; an 

election by an accused convicted by members to be sentenced either by those 

members or by the military judge; a complete overhaul of the punitive articles, including 

five new punitive articles and a significant number of offenses moved from Article 134 to 

separate enumerated articles; a streamlined post-trial process; increased authority of 

military judges during post-trial; expanded appellate review for an accused; and many 

others. 

In FY17, CLD supervised the creation of a Military Justice Legislation Training Team 

(MJLTT) to create training products and instruction on the MJA ’16, to advise on policy 

changes required for MJA ’16 implementation, as well as to assist in revising Army 

Regulations (ARs), DA PAMs, and requisite policies. The MJLTT will lead training 

seminars worldwide throughout CY18 on the revised UCMJ to ensure the JAGC is

prepared to seamlessly transition to the amended UCMJ on the effective date of the 

MJA ’16. The MJLTT consists of one O5, two O4s, and an E8, all of whom have 

extensive military justice experience. 

 In 2014, in accordance with FY13 NDAA Section 576(a)(1), the Secretary of Defense 

established the Judicial Proceedings Panel (JPP). The JPP’s mandate was to conduct 

an independent review and assessment of judicial proceedings involving adult sexual 

assault and related offenses since the 2012 UCMJ amendments. In 2017, the JPP 

released six reports: 1) Military Defense Counsel Resources and Experience in Sexual 

Assault Cases, 2) Victims’ Appellate Rights, 3) Sexual Assault Investigations in the 

Military, 4) Statistical Data Regarding Military Adjudication of Sexual Assault Offenses 
37

for Fiscal Year 2015, 5) Panel Concerns Regarding the Fair Administration of Military 

Justice in Sexual Assault Cases, and 6) Final Report, which is a compilation of their 

earlier reports, was released in October. Finally, it released three subcommittee 

reports on Sexual Assault Investigations in the Military, Initial Disposition Withholding 

Authority, M.R.E. 412 & 513, and Training and Experience of Trial Counsel and 

SVCs/VLCs, Barriers to the Fair Administration of Military Justice in Sexual Assault 

Cases. The CLD provided one judge advocate that served as the Army representative 

to the JPP and who was primarily responsible for gathering information and witnesses in 

response to the JPP’s requests. 

 In December, 2014, Congress directed the Secretary of Defense to establish the 

sixth congressionally mandated task force on sexual assault in the military since 2003. 

Section 546 of the National Defense Authorization Act for FY 152015 enacted the 

Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual 

Assault in the Armed Forces (DAC-IPAD). (The DAC-IPAD was initially required to 

begin its work in September 2017, following the completion of the JPP term, however, in 

the following year Congress advanced the start date for the Committee, requiring it to 

be formed within 90 days of the enactment of the National Defense Authorization Act for 

FY 16). The authorizing legislation charges the Committee to execute three tasks over 

its five-year term: 1) Advise the Secretary of Defense on the investigation, prosecution, 

and defense of allegations of rape, forcible sodomy, sexual assault, and other sexual 

misconduct involving members of the Armed Forces; 2) Review, on an ongoing basis, 

cases involving allegations of sexual misconduct for purposes of providing advice to the 

Secretary of Defense; and 3) Submit an annual report to the Secretary of Defense and 

to the Committees on Armed Services of the Senate and the House of Representatives 

no later than March 30 of each year. The DAC-IPAD held its first public meeting in 

January, 2017 and released its Initial Report just two months later to comply with its 

statutory requirements. The committee acknowledges the report has a very limited 

scope due to their brief existence at the time it was submitted. The CLD provides one 

judge advocate that serves as the Army representative to the DAC-IPAD and who is 

primarily responsible for gathering information and witnesses in response to the DACIPAD’s requests. 

 The CLD is responsible for the revision and publication of AR 27-10, Legal Services, 

Military Justice. A current revision is underway to enact changes from the MJA ’16 with 

a planned release to coincide with the new MCM. During this time period CLD also 

renegotiated a new Memorandum of Agreement with the Criminal Investigations 

Command.

 In conjunction with instructors from TJAGLCS, TCAP and DCAP, the CLD 

accomplished the first major update of its trial advocacy training manual in 20 years. 

With this update, The Advocacy Trainer will be fully digitized by the beginning of CY18 

and includes material reflecting trial practice in the 21st Century: a chapter on trial 

visuals and instruction on evidentiary foundations for such things as e-mails, Facebook 

pages, and tweets. 

 Finally, the CLD’s Strategic Priorities Branch continued to work with large civilian 
38

prosecutors’ offices and other training organizations with a national footprint to observe 

and evaluate Army military justice training. These partnerships, with organizations such 

as the Cook County State’s Attorney’s Office in Chicago, the National Advocacy Center, 

and the National District Attorneys Association, allow Army training officers to emulate 

best practices from those trial practice instructors and enhance the instruction provided 

to our military justice practitioners. Without exception, all reviewers returned glowing 

evaluations of the training conducted.

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL

 The mission of the Department of Criminal Law (DCL) of TJAGLCS in Charlottesville, 

Virginia, is to develop, improve and sustain excellence in the practice of military criminal 

law. The need to hone military justice skills in today’s joint, expeditionary force is 

paramount and is the primary focus of our curriculum. From substantive criminal law 

and theory to technical and practical litigation skills, the DCL continues to provide 

training and education to develop new advocates and sharpen seasoned advocates in 

the practice of military justice. Criminal Law professors also provide limited off-site 

instruction and critical reach-back capability for military justice practitioners of all 

Services. 

 The DCL provides a variety of courses to a varied audience including commanders, 

Judge Advocates, Sister Service Judge Advocates, and international students. Courses 

are designed for: initial-entry Judge Advocates in the Basic Course; new Trial Counsel, 

Defense Counsel and Special Victim Counsel (SVC) in the Intermediate Trial Advocacy 

Course (ITAC); mid-level Judge Advocates in the Graduate Course, the Military Justice 

Leaders Course, the Judge Advocate Officer Advanced Course, and the SVC Course; 

senior Judge Advocates in the Military Judge Course and the SJA Course; and 

commanders and senior non-commissioned officers in the Command Sergeant Major 

Legal Orientation, the Senior Officer Legal Orientation Course, Army Strategic 

Education Program (ASEP), and the General Officer Legal Orientation Course (GOLO). 

Except for the ASEP and GOLO course, which is provided individually to General 

Officers in a single day, all courses are taught using a sexual assault fact pattern and 

are synchronized with other JAGC training agencies. 

 The ITAC is an advocacy-centered course designed to be more challenging than the 

JAG Basic Course and serve as intermediate advocacy training. The ITAC builds on 

courses young advocates will have already received: the New Prosecutor Course 

(offered by TCAP), Defense Counsel 101 (offered by DCAP), and the SVC Course. 

Students learn how to conduct sophisticated case analysis of a sexual assault, conduct 

voir dire, prepare instructions, interview a sexual assault victim, interact with an SVC, 

conduct a direct and cross-examination of a sexual assault victim, interview and 

conduct direct examinations of expert witnesses, and use technology and demonstrative 

evidence in the opening statement and closing argument. This year the DCL further 

refined the course by developing and implementing live demonstrations of advocacy 

skills by the faculty. To add realism to the intensive training, students must interview 
39

and cross-examine Forensic Psychologists, Digital Forensic Analysts, Toxicologists, 

and Sexual Assault Medical Forensic Examiners. Also, Judge Advocates who are 

attending the Graduate Course role-play the victim to provide ITAC students with the 

challenge of interviewing and interacting with a live victim. This demanding course is 

provided twice annually.

 The DCL continued to develop and improve the SVC Certification (SVCC) Course, 

offering one SVC-Child Victim Course and two SVC Courses last year. As an outreach 

effort, the DCL sent two professors to present a block of instruction on the Army SVC 

training program at the National Crime Victim Law Institute at Lewis and Clark Law 

School. Through the Army SVC Program Manager, the DCL coordinates with and 

draws best practices from sister Services, which in turn enhances coordination and 

training in this burgeoning area of law. In cooperation with the SVC Program Manager’s 

Officer, the DCL sent two professors to the Fort Bragg regional SVC training to bring 

back training topics for the SVCC Course and to understand the next level of SVC 

training.

 The SVCC Course is part of the certification process before Judge Advocates are 

authorized to take clients. Students learn best practices for working with sexual assault 

victims, how trauma impacts crime victims, how to work with law enforcement and 

victim-care professionals, how to manage professional responsibility and scope of 

representation issues, and how to most effectively advocate for victims’ rights while 

working with commanders and other participants in the military justice system. The 

SVCC Course includes a roundtable discussion where actual sexual assault victims 

discuss their experiences and the assistance they received from their SVC. There is 

also a practical exercise where students build rapport and perform a mock initial 

interview with a client-victim role-player. The SVCC Course is a prerequisite for the 

SVC-Child Victim Course which focuses on: how to communicate with children; how 

children process and discuss traumatic events; which experts are best suited to assist 

child victims; and services available for child victims. As victim rights and policy 

continue to develop, the DCL assists in the implementation and education of those 

policies and makes recommendations for policy changes and improvements to the SVC 

Program Manager. 

 The DCL presented the Forty-Fifth Kenneth J. Hodson Lecture in Criminal Law, 

hosting Dean Richard Rosen, Dean of Texas Tech Law School. The DCL continued 

outreach to the field by teaching at: the Army’s Sexual Harassment and Assault 

Response Program Academy; the Staff Judge Advocate Best Practices Course; the 

Army Trial Judge Sexual Assault Training and four Reserve Component off-sites.

U.S. ARMY JUDICIARY

U.S. Army Court of Criminal Appeals/Office of the Clerk of Court

 The Office of the Clerk of Court receives records of trial for review by the U.S. 

Army Court of Criminal Appeals (ACCA) under Article 66, UCMJ, appeals under Article 
40

62, UCMJ, and Petitions for Extraordinary Relief. In FY 2017, 388 records of trial and 

over 1,300 motions and briefs were referred to one of the three judicial panels 

comprising the ACCA for judicial review. The average processing times for those 

courts-martial from sentencing to convening authority action was 158 days. In 158 of 

those cases, initial action was completed by the convening authority within the 120 days 

prescribed by United States v. Moreno. Three hundred thirty-two of the records were 

received by ACCA within 30 days of convening authority action.

 The Army’s superior court rendered an initial decision in 449 cases in FY17, with an 

average processing time of 316 days from receipt of the record of trial by the clerk of 

court to decision by ACCA. Of the 449 decisions, 397 were rendered within the 18-

month period prescribed by United States v Moreno. There were no court-martial 

convictions reversed due to command influence, denial of the right to a speedy review, 

lost records, or other administrative deficiencies. No provision of the UCMJ or MCM 

was held unconstitutional by ACCA.

 Working with the CLD, the Office of the Clerk of Court also processed 66 additional 

cases for examination under Article 69, UCMJ. The Office of the Clerk of Court served 

the ACCA decisions upon all personnel not in confinement and coordinated with military 

confinement facilities for service of confined Soldiers. The office closed 734 courtmartial cases during the past year, prior to their retirement to the archives.

 The court maintains a website at https://www.jagcnet.army.mil/acca. The court’s 

published and unpublished memorandum opinions are publicly available on the website. 

In FY17, the office uploaded more than 200 opinions and decisions to the website. 

Additional publicly available information includes application materials for admission to 

the bar at ACCA; Rules of Court; oral argument schedules; and the procedures for 

making a FOIA or Privacy Act (PA) request from ACCA. The website also includes a 

“FOIA Reading Room” containing frequently requested documents from some of the 

Army’s higher-profile court-martial cases.

 The Clerk of Court is the custodian of the Army’s permanent court-martial records 

(general courts-martial and those special courts-martial resulting in an approved 

punitive discharge) dating from 1977. Inquiries about current and previous courtsmartial are received from federal and state investigative agencies; local law 

enforcement offices; sex offender registration databases; media and news 

organizations; military historians; veterans; and Soldiers previously convicted at courtmartial. Additionally, because the Brady Bill requires the processing of handgun permit 

applications within three working days, many expedited requests arrive from the Federal 

Bureau of Investigation’s National Instant Background Check System.

 
41

 Summary of information requests to ACCA for the last three fiscal years:

 FY15 FY16 FY171

Freedom of Information Act 661 251 142

Privacy Act 210 562 192

Certified Copies of Convictions 75 108 629

Total Number of Requests: 946 921 963

 During this time, the office’s FOIA team provided assistance to the Department of 

Justice, through the Army Litigation Division, in both civil and criminal litigation. 

 The Office of the Clerk of Court also provides assistance to overseas court-martial 

jurisdictions in processing requests for non-DoD civilians to travel overseas to testify at 

trials. This includes making travel arrangements, assisting with requests for expedited 

passport processing, and issuing invitational travel orders. 

 The office’s Management and Program Analyst continued to provide vital support to 

the Office of the Clerk of Court, OTJAG, and other organizations and individuals. Using 

the Army Court-Martial Information System (ACMIS), the office designed, developed, 

and released nearly 350 timely and accurate reports in response to requestors both 

inside and outside the DoD.

 The office’s two full-time civilian attorneys, in addition to supervising the office staff, 

provide daily guidance on post-trial processing matters to Army installations worldwide. 

This includes telephonic and email consultation on the contents of promulgating orders 

and convening authority actions following courts-martial.

 The Office of the Clerk of Court is also responsible for processing applications for 

admission to the ACCA bar both for military and civilian counsel. In FY 17, the office 

admitted forty-five new counsel. The office also maintains accurate records of attorney 

disciplinary actions. 

 Finally, the Office of the Clerk of Court provided instruction to legal NCOs, warrant 

officers, and those individuals attending military justice courses at TJAGLCS, as well as 

training for newly assigned SJAs.

Trial Judiciary

 There are 24 active duty and 22 reserve component military judges in the U.S. Army 

Trial Judiciary. The Chief Trial Judge, located at Fort Belvoir, Virginia, manages the 

Trial Judiciary, which consists of five circuits. Chief Circuit Judges supervise the circuit 

judges within each circuit. There are currently three judges stationed overseas, one in 

 

1 While the overall number of information requests has remained relatively constant over the past three 

years, the change in distribution of these numbers by type of request is the result of adjustments in how 

the Army categorizes and tracks information requests in the Freedom of Information & Privacy Acts Case 

Tracking System (FACTS). 
42

Korea and two in Germany. 

Military judges primarily preside over trials by general and special court-martial. The 

percentage of contested cases and the complexity of these cases remains high, largely 

due to the increased number of sexual misconduct related prosecutions. In FY17, 

military judges of the U.S. Army Trial Judiciary presided over 678 courts-martial, a 15 

percent decrease from FY16. Of the total cases tried in FY17, 203 were fully 

contested, 45 involved mixed pleas, 282 were guilty pleas, and the remainder were 

terminated prior to findings. Of the 530 cases in which findings were entered in FY17, 

274 of them or 51.7 percent included sexual misconduct related offenses (Articles 120, 

120b, and 120c). 

 The Trial Judiciary maintains and continuously updates DA Pamphlet 27-9, Military 

Judges’ Benchbook (Benchbook), used by all Services, which contains trial scripts and 

pattern instructions for members. Changes to the Benchbook are approved by the 

Chief Trial Judge following review and comment by the Benchbook Committee and 

other stakeholders in the military justice community. In CY17, the Trial Judiciary 

considered 37 proposed changes to the Benchbook, approving 29 of them. A major 

revision of the Benchbook, necessitated by the Military Justice Act of 2016, is 

underway. An electronic version of the Benchbook, containing all approved changes to 

date, can be found on the Trial Judiciary website at www.jagcnet.army.mil/USATJ. 

Court dockets and other judiciary related documents and resource materials are also 

located on the Trial Judiciary website. 

 The Trial Judiciary conducts an annual Military Judges’ Course at The Judge 

Advocate General’s Legal Center and School in Charlottesville, Virginia. The threeweek course is a certification course for judge advocates of all Services – Army, Navy, 

Marine Corps, Air Force, and Coast Guard – prior to assignment as military judges. The 

course also typically includes select international students. In FY17, 49 judge 

advocates and four international students attended the 60th Military Judges’ Course, 

which was held from 17 April to 5 May 2017. Fourteen active duty and reserve 

component Army judge advocates graduated and were invested as new military trial 

judges.

 Military judges gathered twice this year for training. All military judges attended the 

Joint Military Judges’ Annual Training at MacDill Air Force Base in Tampa, Florida and 

the Trial Judiciary Sexual Assault Training at Fort Belvoir, Virginia. The Trial Judiciary 

was also fortunate to be able to send several military judges to courses at the National 

Judicial College, to include the “Handling Capital Cases” course. 

 The Trial Judiciary continues to provide military judges to serve as judges with the 

Military Commissions Trial Judiciary. There are currently three Army military judges 

serving on the Military Commissions Trial Judiciary, one of whom acts as the Chief 

Judge. 

 There was one cross-service detailing of an Army military judge during FY17. An 

Army military judge was detailed to preside in the capital sentence rehearing in United 
43

States v. Witt, an Air Force court-martial. 

U.S. ARMY TRIAL DEFENSE SERVICE

 In FY17, approximately 460 Active and Reserve Component (RC) judge advocates

were serving in the U.S. Army Trial Defense Service (TDS) worldwide, including 141 

on active duty; 183 assigned to one of three Army Reserve (USAR) TDS Legal

Operations Detachments (LOD) and 140 in the Army National Guard (ARNG). The 

TDS provides high quality, professional defense services to Soldiers across the Army. 

Counsel assigned to the TDS are stationed at 42 active duty installations worldwide 

and approximately 100 reserve component locations, though their oversight and 

supervision is independent from local commanders and Staff Judge Advocate offices. 

The Chief, TDS, exercises centralized supervision over all TDS-assigned counsel 

from the Office of the Chief, TDS at Fort Belvoir, Virginia.

 

 The TDS details one or more counsel to zealously represent Soldiers at Army

special and general courts-martial. In addition, TDS counsel assist Soldiers facing

other military justice related adverse administrative actions such as separation 

proceedings and memoranda of reprimand rebuttals. 

The FY16 and FY17 active duty caseload were as follows:

 FY16 FY17

General and Special Courts-Martial: 896 526

Administrative Boards: 1,194 984

Nonjudicial Punishment: 24,686 22,865

Military Justice Consultations: 30,003 33,167

 The TDS provided defense services to Army personnel deployed worldwide, 

including Iraq, Afghanistan, Kuwait, and Qatar. Personnel in these areas are 

supported out of field offices in Afghanistan and Kuwait, with defense counsel traveling 

into Iraq and other theaters as needed.

 The USAR TDS personnel are divided among three separate units. The 22d LOD, 

headquartered in San Antonio, Texas, has an area of responsibility that includes all 

states west of the Mississippi River, along with the Republic of Korea and U.S. 

territories in the Pacific Command Area of Responsibility. The 154th LOD, 

headquartered in Alexandria, Virginia, covers the U.S. Southeast, Lower Mississippi 

River Valley, and Puerto Rico. The 16th LOD, headquartered in Fort Hamilton, New 

York, covers the U.S. Northeast, Midwest, and Germany. 

 The ARNG TDS, headquartered in Arlington, Virginia, consists of approximately 140 

judge advocates, one legal administrator, and 78 enlisted paralegals stationed in 50 

states, the District of Columbia, and three territories. The Office of the Chief, ARNG 
44

TDS in Arlington, Virginia, provides the technical supervision, management, direction, 

and legal defense training for all ANRG TDS while in Title 32 status.

 The Defense Counsel Assistance Program (DCAP) is the training branch of TDS. In

FY17, DCAP was staffed with four judge advocates and two civilian Senior 

Counsel/Trainers, who provided training and advice to TDS counsel worldwide. This 

fiscal year’s training events consisted of five iterations of Defense Counsel (DC) 101, a 

three-day course that provides critical instruction to newly-assigned DC and paralegals 

on all aspects of client representation with an emphasis on professional responsibility 

and complex issues arising in sexual assault cases. Furthermore, all DC and 

paralegals attended one of five DC 201 courses to receive training on new 

developments in military justice, with a focus on sexual assault litigation. Regional DC 

and senior DC from the Active, Reserve, and National Guard also gathered to receive 

instruction on their duties as leaders in TDS at Sexual Assault Leader Training (SALT). 

Additionally, DCAP and TCAP jointly organized and taught four Advanced Trial

Advocacy Courses, the Sexual Assault Trial Advocacy Course, and the Expert 

Symposium.

 In FY17, DCAP received over one thousand inquiries from DC via emails, phone

calls, and in-person inquiries during training events. DCAP provided assistance to DC 

in the field that included researching case law, answering case specific questions, and

providing sample motions, expert requests, and other trial documents that might be

helpful in the defense of the case. Moreover, DCAP’s website and the Knowledge 

Management Milbook website allowed free flowing discussions and collaboration

among counsel on critical issues. Finally, DCAP also worked with DAD to assist TDS

counsel in the preparation and filing of extraordinary writs before the Army Court of 

Criminal Appeals (ACCA) and the Court of Appeals for the Armed Forces (CAAF). 

 In addition to providing training and advice, DCAP published the seventh Edition of

DC 101 Deskbook and distributed it to all newly-assigned DC. DCAP is in the process 

of updating the DC 201 Deskbook, with an eye toward releasing it at the end of FY17, 

in order to coincide with substantial changes the Manual for Courts-Martial that will go 

into effect in FY18. Additionally, DCAP prepared and disseminated ten “DCAP Sends” 

information papers, which quickly explained important new developments in military 

justice to DC. DCAP also participated in the development of the new online advocacy 

trainer for use by all counsel in the JAG Corps, in coordination with OTJAG Criminal 

Law Division and the Trial Counsel Assistance Program.

GOVERNMENT APPELLATE DIVISION

The Government Appellate Division (GAD), with 16 active duty and 10 reserve 

component military appellate attorneys, represents the United States before ACCA, 

CAAF, and the US Supreme Court in appeals by Soldiers convicted at courts-martial 

with an adjudged sentence of either a punitive discharge or confinement for one year

or more. The GAD also represents the United States before those fora in 
45

government appeals from courts-martial and petitions for extraordinary relief. 

Additionally, GAD oversees the operations of the Trial Counsel Assistance Program 

(TCAP).

In FY17, GAD filed 430 briefs at ACCA, which included 231 assignment of error 

responses, 13 specified issue briefs, 16 supplemental briefs, three government 

appeals, and answers to three extraordinary writ petitions. It filed 386 responses to 

petitions for grant of review at CAAF, 8 of those briefs, and 33 other briefs, including 21 

final briefs, four responses to extraordinary writs, five briefs in support of TJAG 

Certificates for Review, one petition for reconsideration, and two Amicus Curiae briefs.

The GAD appellate attorneys argued 29 cases before ACCA and 18 cases before 

CAAF.

In FY17, TCAP continued to perform its three primary missions. First, TCAP 

delivered continuing legal education and specialized training to Army trial counsel and 

government paralegals worldwide. Second, TCAP provided direct prosecutorial 

assistance to SJA offices on many of the Army’s most complex and/or high-profile 

cases. Finally, TCAP also managed the operations of the Special Victim Prosecution 

(SVP), Special Victim Noncommissioned Officer (SVN), and Special Victim Witness 

Liaison (SVWL) programs.

The cadre of TCAP trainers, including five military attorneys, three civilian Special 

Victim Litigation Experts, a part-time senior paralegal noncommissioned officer, and a 

Special Victim Witness Liaison program manager, developed and delivered 30 training 

events for trial counsel and government paralegals worldwide. This year’s training

events consisted of 22 specialty courses, including: the New Prosecutors Course; the 

Military Institute for the Prosecution of Sexual Violence; Crime Lab Forensic Training; 

Child Forensic Interviewing; Prosecuting the Online Exploitation of Children; Expert 

Symposium; Child Abuse Prosecutor’s Course; Senior Trial Counsel Course; Sexual 

Assault Trial Advocacy Course; Special Victim Prosecutor Course; Special Victim 

Prosecutor Noncommissioned Officer Course; and, the Special Victim Witness Liaison 

Course. The TCAP Team also traveled to 15 Army installations to conduct two to three 

day outreach training events, as well as three, week-long, regional training events 

overseas. 

Many of this year’s training events focused on trial advocacy skills and prosecuting

sexual assault and domestic violence cases. Specifically, TCAP presented five 

iterations of the Trial Counsel Course (TCC), formerly known as the New Prosecutor

Course (NPC) and three iterations of the Military Institute for the Prosecution of Sexual 

Violence Course (MIPSV). TCC is a five-day course focused on the fundamentals of 

military justice using a sexual assault fact pattern. MIPSV provides further specialty 

training on sexual assault and domestic violence. Following attendance at TCC, MIPSV, 

and the Intermediate Trial Advocacy Course (ITAC) taught at TJACLCS, counsel with 

18 months or more of court-martial practice are qualified to attend the joint 

TCAP/DCAP/SVC capstone training event - the Sexual Assault Trial Advocacy Course 

(SATAC). The SATAC is a two-week trial advocacy course focusing on the 
46

fundamentals of trial advocacy in the context of litigating special victim cases. This 

year’s SATAC included lectures, break-out sessions, and numerous advocacy 

exercises; it was conducted jointly with both DCAP and the SVC program office. 

In support of its mission to assist prosecutors in the field, TCAP also provided expert 

military counsel to prosecute many of the Army’s most complex and/or high-profile

cases, and provided direct expert assistance and consultation through its three civilian 

Special Victim Litigation Experts (SVLEs). The TCAP also continued its traditional 

information-sharing and collaboration activities such as publishing regular issues of its 

“TCAP Express” newsletter to inform and advise the field on new legal developments 

and issues, compiling and distributing a resource disk of useful templates, resources 

and tools, as well as responding in real time to hundreds of legal questions submitted 

by phone and email from prosecutors and paralegals worldwide.

Finally, TCAP continued to manage the Army’s 26 SVPs, 23 SVNs, and 23 SVWLs 

located at the Army’s 21 busiest UCMJ jurisdictions. Their primary mission is to ensure 

that every instance of sexual assault, child abuse, and intimate-partner violence within 

their geographic area of responsibility is properly investigated and, where appropriate, 

charged and prosecuted. The SVPs, SVNs, and SVWLs also work with the Criminal 

Investigation Command’s specialized Sexual Assault Investigators and with the local 

SVC to ensure that survivors are treated respectfully, notified of all available support 

services, and kept abreast on the status of the investigation and prosecution. Our 

SVPs are also charged with creating local training programs for trial counsel and 

government paralegals in order to ensure that our trial practitioners receive relevant 

military justice and advocacy training on a regular basis.

DEFENSE APPELLATE DIVISION 

 The Defense Appellate Division (DAD), with 22 active duty and nine reserve 

component military appellate defense attorneys, provides appellate representation to 

eligible Soldiers and other individuals before ACCA, CAAF, and the Supreme Court of 

the United States. Eligible Soldiers include those convicted at courts-martial where the 

approved sentence includes a punitive discharge or confinement for one year or more. 

DAD attorneys also assist military and civilian trial defense counsel in the preparation 

and filing of extraordinary writs before the aforementioned courts. 

 The DAD currently represents Soldiers in approximately 600 cases. These cases 

are moving through the various stages of the appellate process, either recently 

docketed and referred to DAD, pending action by ACCA or CAAF, or awaiting final 

action and discharge from the Army. Approximately 203 cases are pending review and 

submission to ACCA. 

 Last year, DAD filed 408 briefs with ACCA. The DAD also filed 349 briefs with 

CAAF. Appellate counsel raised assignments of error in approximately 55% of these 

cases. Counsel also argued 27 cases at ACCA and 20 at CAAF. 
47

 Army DAD co-chaired, with Navy-Marine Corps Appellate Government Division, a 

joint training event at Joint Base Myer-Henderson Hall to organize and provide 

advanced appellate advocacy that included government and defense appellate 

attorneys as well as special victim attorneys and advocates from the Army, Navy, Air 

Force, Marine Corps and Coast Guard.

Some of the significant cases from this past year include:

 United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017). Specialist Christopher Hukill 

was convicted of one specification of rape and one specification of abusive sexual 

contact in violation of Article 120, UCMJ. The ACCA denied Hukill’s initial appeal which 

was based on a claim of ineffective assistance of counsel. However, the ACCA granted 

reconsideration to entertain Hukill’s claim brought under United States v. Hills, 75 M.J. 

350 (C.A.A.F. 2016), and again denied relief and affirmed the findings and the 

sentence. The CAAF granted SPC Hukill’s petition to review the issue of whether, in a 

court-martial tried by military judge alone, the military judge abused his discretion by 

granting the Government’s motion to use the charged sexual misconduct for M.R.E. 413 

purposes to prove propensity to commit the charged sexual misconduct. The CAAF 

held that the use of evidence of charged conduct as M.R.E. 413 propensity evidence for 

other charged conduct in the same case is error, regardless of the forum, the number of 

victims, or whether the events are connected. Moreover, as in Hills, the CAAF 

reiterated that the error had constitutional implications since the error violated the 

appellant’s presumption of innocence. The CAAF’s holding has impacted multiple 

cases on appeal and at court-martial, as the use of charged misconduct to show 

propensity was a common practice in the Army.

 United States v. Gurczynski, 75 M.J. 120 (C.A.A.F. 2016). The government charged 

Private Gurczynski with two specifications of possessing child pornography, in violation 

of Article 134, UCMJ. At trial, the military judge granted the defense’s motion to 

suppress evidence of child pornography from Private Gurczynski’s digital media 

devices. The government appealed this ruling pursuant to Article 62(a)(1)(B), UCMJ. 

The Army Court affirmed the military judge’s ruling, and the government subsequently 

filed a certificate for review signed by The Judge Advocate General to the CAAF. In its 

opinion, the CAAF unanimously rejected the government’s appeal, finding that the plain 

view exception to the Fourth Amendment’s warrant requirement does not apply because 

the underlying search was unreasonable. The CAAF cited several factors in its 

analysis, including: 1) Private Gurczynski “was convicted of the offense for which search 

warrant was issued five months prior to the search,” and 2) “over nine months passed 

between the issuance of the search warrant and the digital examination of the seized 

devices.”

 United States v. Commisso, 76 M.J. 315 (C.A.A.F. 2017). Sergeant First Class 

Jason Commisso was convicted of one specification each of violating a lawful general 

regulation, making a false official statement, indecent recording of a person’s private 

area, obstruction of justice, and two specifications of abusive sexual contact, in violation 

of Articles 92, 107, 120, 120c, and 134, UCMJ. After trial, SFC Commisso discovered 
48

that three panel members who sat on his court-martial panel had regularly attended the 

SARB meetings, including at least four meetings prior to his court-martial where his 

case was discussed from the putative victim’s perspective. These three members failed 

to disclose either their knowledge of the case of their participation in the SARB in 

response to voir dire questions designed to elicit this information. Upon discovering this 

lack of candor, the defense counsel filed a post-trial motion for a mistrial, which was 

denied by the military judge. The ACCA dismissed the guilty findings for the Art. 92 and 

Art. 107 violations but affirmed the remainder of the findings and sentence. The CAAF 

granted SFC Commisso’s petition to review the issue of whether the military judge 

abused his discretion in denying the defense’s post-trial motion for a mistrial, thereby 

violating the appellant’s right to have his case decided by a panel of fair and impartial 

members. The CAAF held that the military judge abused his discretion in denying the 

motion for mistrial. The fact pattern in this case highlights concerns about implied or 

actual bias of panel members based on their role in the SHARP program.

 United States v. Mitchell, 76 M.J. 413 (C.A.A.F. 2017). Sergeant Edward Mitchell II 

was taken into custody by military police and interrogated regarding various alleged 

offenses. Sergeant Mitchell invoked his right to counsel during that interrogation. He 

was released, but apprehended again by military police about two hours later in order to 

execute a search authorization the police had obtained in the intervening time. The 

search authorization allowed the police to lawfully seize the appellee’s cell phone, which 

they did. The police then asked the appellee for the passcode to his cell phone, which 

he declined to provide. After some discussion, the appellee agreed to unlock his phone 

for police and disable its security system. The police later found incriminating evidence 

on the phone. Prior to trial, the SGT Mitchell successfully moved to suppress the 

evidence obtained from the phone because the police violated his Fifth Amendment and 

Edwards v. Arizona, 451 U.S. 477 (1981), rights by asking for his passcode and asking 

for him to unlock the phone. The government unsuccessfully appealed the military 

judge’s order suppressing the evidence to the Army Court of Criminal Appeals. The 

Judge Advocate General of the Army then certified three issues to the CAAF relating to 

the application of the Fifth Amendment and the Edwards rule to the appellee’s entry of 

his passcode. The CAAF cut through the certified issues by holding that the plain 

language of M.R.E. 305(c)(2) mandated suppression of the contents of the phone. The 

CAAF held that when the police asked SGT Mitchell for his passcode, they violated the 

Edwards rule prohibiting custodial interrogation after a suspect has invoked the right to 

counsel. As a result, the CAAF held it was proper to suppress the contents of a lawfully 

seized cell phone that a suspect unlocked in response to a police request for his 

passcode after the suspect invoked his right to counsel. The Court found that it did not 

need to reach the question of whether or not entry of the passcode into the phone was 

itself testimonial, because the original request for the passcode called for a testimonial 

response. 

 United States v. Nieto, 76 M.J. 101 (C.A.A.F. 2017). Two Soldiers alleged that 

Specialist Luis Nieto used his cell phone to make video recording of the Soldiers using 

the latrine at a base in Afghanistan. Based on this allegation, two noncommissioned 

officers “looked through” the appellant’s cell phone, but did not find any photos or videos 
49

consistent with the allegations. An Army CID agent began an investigation, during which 

CID was told by unknown persons that they had seen both a cell phone and a laptop 

computer in Specialist Nieto’s living area. A CID agent requested a search 

authorization for both the appellant’s phone and any laptop he own based on the 

agent’s personal knowledge that Soldiers “normally downloaded the photos they take” 

from phone to computers. A military magistrate granted this search authorization, and 

CID agents subsequently seized both a cell phone and a laptop computer from the 

appellant. The appellant sought to suppress the contents of the laptop computer but 

was unsuccessful in that motion at trial. The Army Court of Criminal Appeals summarily 

affirmed the appellant’s resulting conviction. The CAAF, however, granted review of 

whether or not the military judge abused his discretion by failing to suppress the 

contents of the laptop. The CAAF held that probable cause to search a digital media 

device for evidence of an alleged crime must be supported by a “particularized nexus” 

linking an alleged crime to the digital media device. The Court found any nexus 

between the laptop computer of Specialist Nieto and the alleged crime under 

investigation was insufficient to establish probable cause to search the laptop. A law 

enforcement officer’s “generalized profile” of suspect behavior was not enough to 

establish such a nexus absent some additional facts supporting the application of that 

profile to the suspect or digital media in question. 

LITIGATION DIVISION

 Civil lawsuits involving military justice matters are relatively few but remain an 

important part of the Litigation Division's practice. Most suits are brought by

former Soldiers seeking collateral review of military court-martial proceedings

pursuant to a petition for writ of habeas corpus in federal district court, as

opposed to habeas actions challenging Army decisions such as a denial of

conscientious objector status. Additionally, Soldiers can also seek review of a 

decision by the Army Board for Correction of Military Records denying clemency for 

a court-martial sentence pursuant to the Administrative Procedures Act, 5 U.S.C. § 

701, et al. 

During FY17, the Military Personnel Litigation Branch was involved in eight 

habeas corpus cases, with five cases still active and three having been successfully 

defended against collateral attacks on court-martial convictions or seeking federal

court intervention related to other confinement issues such as confinement

conditions, illegal detention, and transfer out of military confinement facilities. 

Additionally, the General Litigation Branch periodically handles civil lawsuits

involving Constitutional challenges to the military justice system, such as

allegations involving alleged violations of equal protection, due process, and the

First Amendment.

The following cases highlight the types of issues handled by the Litigation

Division:

 Gray v. James W. Gray, Commandant, USDB (D. Kan.). In 1988, a general courtmartial convicted Petitioner Ronald Gray of the premeditated murder of two women, the 
50

attempted premeditated murder of a third woman, the rape and sodomy of the women, 

burglary, and larceny. Two of the three women were Soldiers. The court-martial 

sentenced Gray to death. The military appellate courts affirmed the court-martial 

conviction. In 2001, the US Supreme Court denied Gray's petition for writ of certiorari, 

and his request for rehearing. In July 2008, the President approved the death sentence. 

In August 2008, the Secretary of the Army signed the execution order directing Gray's 

execution. 

In November 2008, Ronald Gray filed a motion in the United States District Court 

for the District of Kansas requesting an order staying his execution, originally scheduled 

for December 10, 2008, pending final resolution of federal habeas corpus proceedings. 

In November 2008, the District Court granted the stay of execution. In April 2009, Gray 

filed a petition for writ of habeas corpus. The government filed its answer. In December 

2009, Gray filed a response which raised three additional claims concerning denial of 

access to materials the Army provided to the President, mental competence at trial and 

on appeal, and lack of military jurisdiction over a peacetime murder in the United States. 

In September 2010, the court ruled that Gray may present the additional claims. In 

February 2011, Gray filed a Petition for Extraordinary Relief in the Nature of a Writ of 

Coram Nobís with the ACCA. The ACCA denied relief noting that it lacked jurisdiction. 

The CAAF denied Gray's writ appeal, without prejudice, leaving the door open for Gray 

to again raise his issues after his habeas proceedings. Gray filed his reply on 

November 1, 2012, which completed the briefings in the case. 

In November 2014, a new district court judge was assigned to the case. On April 

2, 2015, the Chief Judge for the District of Kansas heard oral argument regarding 

Gray’s 21 asserted assignments of error raised in his habeas petition. On September 

29, 2015, the District Court issued its memorandum and opinion addressing all counts 

of Gray's habeas petition. The Court denied 14 counts, finding that the military courts 

had provided Gray full and fair consideration on those issues. Additionally, the Court 

denied Gray’s Eighth Amendment challenge to the method of his execution and Gray's 

jurisdictional challenge. Lastly, the Court dismissed Gray’s five remaining arguments 

without prejudice. On September 27, 2015, Gray filed a Motion to Alter or Amend 

Judgment pursuant to Federal Rule of Civil Procedure 59. The Government filed its 

response on November 6, 2015. The Court denied Gray’s motion on December 23, 

2015, and he appealed to the Tenth Circuit Court of Appeals. Prior to briefing, the Court 

of Appeals noted the District Court may have improperly issued a hybrid dismissal of 

Gray’s claims and ordered the parties to show cause why the Court should not vacate 

the District Court’s judgment and remand the case for appropriate action. The parties 

filed a joint response on March 24, 2016 agreeing that the proper action was to return 

the case to the district court. On May 3, the District Court ordered Gray to show cause 

why the Court should not dismiss all of his claims without prejudice to allow him to 

exhaust his claims in the military appellate courts. Gray submitted his response on May 

27 and the Government replied on June 24, which completed the briefings in the case. 

On October 26, the District Court dismissed Gray’s habeas petition without prejudice to 

allow him to exhaust his unexhausted claims in the military courts or to refile his petition 

without the unexhausted claims. On November 13, 2017, the CAAF dismissed Gray's 

writ-appeal petition with prejudice on jurisdictional grounds.
51

 Boal et al. v. United States (C.D., Cal.) Mark Boal, a film producer, interviewed SGT 

Bowe Bergdahl about SGT Bergdahl’s reasons for leaving his post in June 2009. 

Portions of these interviews were aired in the Serial podcast produced by Boal. The 

prosecution in US v. Bergdahl sought release of all audio recordings of the interviews 

between Boal and Bergdahl, totaling approximately 25 hours. The prosecution team 

reached out to Boal’s private counsel to negotiate release of the audio recordings, 

discuss issuance of a subpoena for the subject materials, and to suggest in camera 

review. On 20 July 2016, prior to issuance of the military subpoena, Plaintiffs (Boal and 

his production company) filed a complaint for declaratory and/or injunctive relief seeking 

to prevent service of a military subpoena for audio recordings. On 21 July 2016, 

Plaintiffs filed an application for a temporary restraining order (TRO) enjoining issuance 

of the military subpoena. On 25 July 2016, the Court adopted the Parties’ joint 

stipulation regarding a briefing schedule, requiring response to the application for TRO 

no later than 5 August 2016, with Plaintiffs’ reply due no later than 15 August 2016. 

Additionally, Parties agreed that the military subpoena shall not issue until the Court 

renders an opinion on the application for TRO. On 29 July 2016, a media organization 

filed an Amici Curiae brief with the Court. Defendant’s filed a response 5 August 2016, 

requesting denial of the TRO on abstention and non-waiver of sovereign immunity 

grounds. Ultimately the parties settled and certain portions of the audio recordings were 

released by Mr. Boal. 

INTERNATIONAL AND OPERATIONAL LAW DIVISION

 The International and Operational Law Division (IOLD), provides overarching legal 

advice and guidance on the Army’s implementation of the DoD Law of War Program. In 

FY17, the mission and programs of the OTJAG IOLD continued to support the military 

justice system across three primary lines of effort: 1) preventing law of war violations; 2) 

preparing judge advocates and paralegals to administer military justice in deployed 

environments; and 3) maintaining sufficient contacts both domestically and 

internationally in order to ensure the Army’s position on the law of armed conflict and 

other legal matters are adequately understood. 

 First, IOLD aimed to prevent violations of the law of war by Army personnel through 

several proactive steps. IOLD evaluated all new weapons for compliance with 

international law. IOLD reviewed all HQDA operations and concept plans and rules of 

engagement for compliance with domestic and international law. IOLD further helped 

prepare directives, policies, instructions, and training materials to ensure that Army 

personnel understood the principles and rules of the law of war. Whenever Army 

personnel were alleged to have violated the law of war, IOLD supported the reporting, 

investigation, and prosecution of the allegations.

 Second, IOLD prepared judge advocates and paralegals for upcoming operational 

deployments to Operational Inherent Resolve, Operation Spartan Shield, and Operation 

Freedom’s Sentinel/Resolute Support missions. Specifically, IOLD conducted missiontailored pre-deployment training programs using Mobile Training Teams (MTTs). The 
52

MTTs were comprised of subject matter experts and recently re-deployed Judge 

Advocates and paralegals. The instruction covered all core legal disciplines, with a 

particular focus on the law of war and military justice. The law of war discussions 

examined the lessons learned from the tragic military strike on the Doctors Without 

Borders trauma center in Kunduz, Afghanistan. Those talks centered on the post-strike 

investigation and its findings that certain principles of the law of war were violated. With 

respect to the military justice portions of the MTT, the instructors explored the unique 

aspects and logistical challenges of administering military justice in a deployed 

environment. 

 Third, much of IOLD’s efforts in FY17 were spent on implementing TJAG’s guidance 

for strategic legal engagements. In FY17, the JAGC focused much of its strategic 

engagements efforts on developing training packets on international law issues where 

the U.S. position is question. IOLD created training packets on targeting military 

objectives, authority to detain in non-international armed conflict, and the legality of 

autonomous weapon systems. These training presentations are designed for a number 

of audiences both military and civilian and can be tailored depending on the audience. 

In addition, OTJAG published a supplement on administrative investigations and 

criminal law focusing on targeting and the Law of Armed Conflict for assessing 

compliance with the Law of Armed Conflict. 

 Additionally, TJAG and other JAGC senior leaders participated in numerous other 

legal engagements with their counterparts from partner nations around the world. 

Partner nation visitors to OTJAG participated in substantive discussions and conducted 

additional site visits to TJAGLCS, the United States Army Legal Services Agency, and 

ACCA at Fort Belvoir. These programs demonstrated the importance of organizational 

structure and resourcing to provide commanders with the highest quality legal support. 

The programs also provided a comprehensive overview of the military justice system 

throughout all pre-trial, trial, and appellate stages. Additionally, IOLD, in partnership with 

the Defense Institute of International Legal Studies and the International Institute of 

Humanitarian Law, provided human rights and military justice training for foreign legal 

officers from various countries including Uzbekistan, Colombia, Argentina, Estonia, and 

others. Finally, IOLD began providing legal training to members of the U.S. Military 

Observers Group on the legal basis for the mission, rules for the use of force, and the 

UN Code of Conduct. 

PERSONNEL, PLANS, AND TRAINING

 On September 30, 2017, the Army's end-strength was 476,245 Army Soldiers on 

Active Duty compared to 475,400 at the end of FY16. The attorney strength of the 

JAGC Active Component (AC) at the end of FY 17 was 1,819 (including general 

officers). This does not include 73 officers attending law school while participating in 

the Army’s Funded Legal Education Program. The FY17 end-strength of 1,819 

compares with an end-strength of 1,803 in FY16. The diverse composition of the FY17 

AC attorney population included 116 African-Americans, 57 Hispanics, 105 Asians, 2 

Native Americans, and 504 female Soldiers.
53

 The grade distribution of the JAGC AC attorneys for FY17 was: six general officers 

authorized (five filling JAGC authorizations, one serving in a Military Occupational 

Specialty (MOS) coded position (Chief Prosecutor for the Commissions); 122 colonels; 

262 lieutenant colonels; 501 majors; and 928 captains and first lieutenants. An 

additional 100 warrant officers, 629 Civilian attorneys, 798 Civilian paraprofessionals 

and 1,618 enlisted paralegals from the AC supported legal operations worldwide.

 The attorney strength of the JAGC USAR at the end of FY17 was 1,831 (which 

includes officers serving in Troop Program Units, the Drilling Individual Mobilization 

Augmentee (DIMA) Program, the Individual Ready Reserve, and the Active Guard & 

Reserves). The attorney strength of the ARNG at the end of FY17 was 876. 

 At the end of FY17, over 293 Army JAGC personnel (officer and enlisted, AC and 

Reserve Component) were deployed in operations in Afghanistan, Djibouti, Egypt, 

Guantanamo Bay, Honduras, Iraq, Israel, Jordan, Kosovo, Kuwait, Qatar, and other 

locations around the world.

CONCLUSION

In FY17, the JAGC continued its efforts to constantly improve every area of our 

practice. Many of these efforts involved TCAP and DCAP, which provided personnel

and expert advice to assist with numerous high profile trials. Along with TJAGLCS,

TCAP and DCAP were instrumental in capturing and disseminating lessons learned

from these cases throughout the Corps. In addition, the SVP program continued to 

build the Army’s capability to effectively prosecute sexual assault and family abuse 

offenses while our SVC program continues to grow and improve, providing a holistic 

approach to victim care that is constantly increasing in popularity among those in need 

of its services. We have also continued established partnerships with local, State, and 

Federal practitioners in our ongoing and constant effort to improve our practice.

 In a year filled with significant change, the JAGC continued to provide superior legal 

advice to senior commanders and leaders. The JAGC continued to perform its military 

justice functions in a just and effective manner. The JAGC also continues to monitor 

newly emerging military justice requirements, including all proposed legislation which 

affects both the UCMJ and the MCM, to help to ensure a premier military justice system 

that the Army demands and that Soldiers deserve.

CHARLES N. PEDE 

Lieutenant General, US Army

The Judge Advocate General
54

APPENDIX - U.S. ARMY MILITARY JUSTICE STATISTICS

Report Period: FISCAL YEAR 2017

PART 2 – DISCHARGES APPROVED [B]

GENERAL COURTS-MARTIAL ( CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES (+ dismissals) 122 (+26)

 NUMBER OF BAD-CONDUCT DISCHARGES 146

SPECIAL COURTS-MARTIAL

 NUMBER OF BAD-CONDUCT DISCHARGES 86

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL COURTS-MARTIAL 303

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL COURTS-MARTIAL 86

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL COURTS-MARTIAL 67

PART 4 – WORKLOAD OF THE U.S. ARMY COURT OF CRIMINAL APPEAL

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE U.S. ARMY COURT OF 

CRIMINAL APPEALS (CCA)

NUMBER 428

PERCENTAGE 89.17%

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF INCREASE 

(+)/ DECREASE (-) 

OVER LAST REPORT

Arraigned Completion

GENERAL 498 393 333 60 [I]

BCD SPECIAL [A] 177 134 121 13 [I]

NON-BCD SPECIAL 3 2 2 0 [I]

SUMMARY 112 [G] [G] -30.4%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER LAST REPORT [I]

TOTAL ON HAND BEGINNING OF 

PERIOD 88 [C] 

 GENERAL COURTS-MARTIAL [D]

 BCD SPECIAL COURTS-MARTIAL [D]

REFERRED FOR REVIEW 480 [C]

 GENERAL COURTS-MARTIAL

 BCD SPECIAL COURTS-MARTIAL

TOTAL CASES REVIEWED 523 [E]

 GENERAL COURTS-MARTIAL

 BCD SPECIAL COURTS-MARTIAL

TOTAL PENDING AT CLOSE OF PERIOD 45 [C]

 GENERAL COURTS-MARTIAL

 BCD SPECIAL COURTS-MARTIAL

RATE OF INCREASE (+)/DECREASE (-) OVER NUMBER OF 

CASES REVIEWED DURING LAST REPORTING PERIOD -20.2%
55

APPENDIX - U.S. ARMY MILITARY JUSTICE STATISTICS - CONT’D

PART 6 - ACTIONS OF THE U.S. COURT OF APPEALS FOR THE ARMED FORCES

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF 

344 of 523 65.77%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS 

REPORTING PERIOD 

-1.60%

PERCENTAGE OF TOTAL PETITIONS GRANTED 

200 of 388

51.55%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS 

REPORTING PERIOD +611.03%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY 

USACCA 

26.39%

RATE OF INCREASE (+)/DECREASE (-) OVER THE NUMBER OF CASES 

REVIEWED DURING LAST REPORTING PERIOD +423.61%

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING 

OF PERIOD 0

RECEIVED 4

DISPOSED OF 2

 GRANTED 0

 DENIED 1

 NO JURISDICTION 0

 WITHDRAWN 1

TOTAL PENDING AT END 

OF PERIOD

PART 8 – ORGANIZATION OF COURTS [H]

TRIALS BY MILITARY JUDGE ALONE

GENERAL COURTS-MARTIAL 305

SPECIAL COURTS-MARTIAL 119

TRIALS BY MILITARY JUDGE WITH MEMBERS

GENERAL COURTS-MARTIAL 88

SPECIAL COURTS-MARTIAL 17

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS 23

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 476245[F]

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT 

IMPOSED 26638

RATE PER 1,000 55.93

RATE OF INCREASE (+)/DECREASE (-) OVER 

PREVIOUS PERIOD -10.50%
56

EXPLANATORY NOTES

[A] Cases convened by GCM convening authority.

[B] Based on records of trial received in FY for appellate review.

[C] Includes only cases briefed and at issue.

[D] No reason for distinguishing; GCM and BCD SPCM are not tracked separately.

[E] Includes Article 62 appeals, All Writs Act cases, and appeals withdrawn.

[F] This number includes only Active Component Soldiers and does not include USAR, National Guard or 

AGR personnel.

[G] SCM convictions and acquittals are not tracked.

[H] Only includes cases that were tried to completion. 

[I] A comparison to the previous year is not possible as the previous year contained cases that were 

dismissed or disposed of administratively.
57

Section 4

Report of the Judge Advocate General of the Navy
58

ANNUAL REPORT OF THE JUDGE ADVOCATE GENERAL OF THE NAVY

OCTOBER 1, 2016 TO SEPTEMBER 30, 2017

SUPERVISION OF THE ADMINISTRATION OF

 MILITARY JUSTICE

JUDGE ADVOCATE GENERAL

The Judge Advocate General (JAG) co-chairs the Military Justice Oversight 

Council (MJOC) with the Staff Judge Advocate to the Commandant of the Marine Corps 

pursuant to SECNAVINST 5430.27D. The MJOC meets quarterly to evaluate the 

practice and effectiveness of military justice, assess any potential impediments, and 

facilitate such action as is necessary to ensure a fair, effective, efficient, and responsive 

system of military justice. The following members have been appointed to the MJOC: 

Commander, Naval Legal Service Command (CNLSC); Deputy Judge Advocate 

General for Reserve Affairs and Operations; Deputy Staff Judge Advocate to the 

Commandant of the Marine Corps; Chief Judge of the Department of the Navy; 

Assistant Judge Advocate General for Military Justice; Assistant Judge Advocate 

General for Operations and Management; and Deputy Director, Marine Corps Judge 

Advocate Division, Military Justice and Community Development. 

During the reporting period, and in accordance with their duties to supervise the 

administration of military justice under Article 6(a), Uniform Code of Military Justice 

(UCMJ), JAG and CNLSC regularly inspected U.S. Navy legal offices in the United 

States, Europe, and the Pacific. These inspections, conducted by various subject 

matter experts under the supervision of the Office of Judge Advocate General (OJAG), 

examined the full range of military justice processes. 

ASSISTANT JUDGE ADVOCATE GENERAL, MILITARY JUSTICE 

The Assistant Judge Advocate General for Military Justice (AJAG-MJ) advises JAG 

in the performance of statutory military justice duties; serves as a member of the OJAG 

Professional Ethics Committee, the Judicial Screening Board, and MJOC; and oversees 

OJAG’s Criminal Law Division (Code 20) and National Security Litigation Division (Code 

30). AJAG-MJ is also the Officer-in-Charge of the Navy-Marine Corps Appellate Review 

Activity (OIC, NAMARA - Code 04), the Administrative Support Division (Code 40), 

Appellate Defense Division (Code 45), and Appellate Government Division (Code 46). 

OIC, NAMARA is responsible for the disposition of all records of trial in accordance with 

statutory and regulatory requirements as well as applicable appellate court rules of 

practice and procedure.

CRIMINAL LAW DIVISION (CODE 20)

Organization. During the reporting period, Code 20 was staffed by nine active duty 

judge advocates, one civilian Highly Qualified Expert (HQE), three civilian staff 
59

members, two senior enlisted paralegals, and a ten-member reserve unit. 

Mission. Code 20 coordinates, reviews, and drafts military justice and sexual 

assault policy, including all legislative and regulatory proposals affecting military justice 

and Sexual Assault Prevention and Response (SAPR) within the Department of the 

Navy (DON). Code 20 directly engages with members of Congress and their staffs on 

proposed amendments to the UCMJ, Manual for Courts-Martial (MCM), Manual of the 

Judge Advocate General, and other statutory and regulatory proposals affecting the 

military justice system. Code 20 monitors all decisions of military appellate courts, 

tracks the status of military justice cases, provides legal and policy opinions, staffs 

requests for JAG certification of cases for U.S. Court of Appeals for the Armed Forces 

(CAAF) review, and facilitates Department of Justice (DoJ) processing of executive 

pardon requests involving military convictions. Code 20 staffs requests for Secretarial 

designation of general, special, and summary court-martial convening authorities, 

coordinates court orders and warrants of attachment, and coordinates with the DoJ 

regarding approval for grants of immunity and orders for civilian witnesses to testify at 

trial by court-martial. Further, Code 20 provides a representative to the Naval 

Clemency and Parole Board, supplies advisory legal opinions to the Board for 

Correction of Naval Records, delivers informal advice for Navy and Marine Corps judge 

advocates regarding military justice, processes all Article 69, 73, and 74(b) UCMJ 

reviews and requests, and acts as the release and initial denial authority on all Freedom 

of Information Act (FOIA)/Privacy Act (PA) requests for information pertaining to courtsmartial within the Navy and Marine Corps.

The Code 20 Division Director is a member of the Judicial Screening Board and 

serves as Commander, Naval Legal Service Command’s Special Assistant for Military 

Justice, advising on policies, plans, resources, and procedures affecting Naval Legal 

Service Command’s military justice mission.

The Code 20 Division Director also serves as Navy’s representative to the Joint 

Service Committee (JSC) for Military Justice and functions as Navy’s voting group 

member at regular meetings of the JSC. Since January 2017, the Navy has held the 

rotating chairmanship of the JSC. The JSC is the principal vehicle for staffing 

amendments to the UCMJ and MCM. The JSC’s 2017 Annual Review of the MCM was 

completed in accordance with the President’s requirement. In FY17, an Executive 

Order drafted by the JSC was forwarded for Presidential signature. This order 

implemented the Military Justice Act of 2016, the largest and most comprehensive 

overhaul of military justice since 1983, as well as other requirements of the National 

Defense Authorization Act (NDAA), congressional panel recommendations, and case 

law updates. The JSC proposed, and published for public and Service comment in the 

Federal Register, draft supplementary materials, additional amendments to the MCM 

implementing congressional panel recommendations, case law updates, and prior 

public and Service comments. The JSC also responded to other research tasks as 

directed by Department of Defense (DoD) Office of General Counsel.
60

The Military Justice Act of 2016, consisting of the Military Justice Review Group's 

(MJRG) recommended changes to the UCMJ, was signed by Congress in December 

2016. Code 20 supported the entirety of the MJRG process, assigning Code 20 staff to 

weekly MJRG working group meetings to draft implementing regulations, punitive 

articles, rules of evidence, non-judicial punishment procedures, and supplementary 

materials for inclusion in a new MCM. 

The Code 20 Division Director also serves as the Navy's point of contact for all 

Navy and Departmental requests for information and testimony before the 

congressionally-mandated Judicial Proceedings Panel (JPP), and the Defense Advisory 

Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed 

Forces (DAC-IPAD). The JPP's mandate is to conduct an independent review and 

assessment of judicial proceedings under the UCMJ involving adult sexual assault and 

related offenses that have occurred since the amendments made to the UCMJ by 

section 541 of the FY12 NDAA in order to make recommendations for improvements to 

such proceedings. The JPP met monthly and, prior to its dissolution on September 30, 

2017, had issued 11 reports containing 63 recommendations to Congress, the 

Secretary of Defense, and the military Services. Code 20’s HQE engaged with JPP staff 

members to provide substantive guidance in support of their mandate, including 

coordinating the testimony of several subject-matter experts at JPP hearings as well as 

researching and presenting historic information as requested by the panel. 

Section 546 of the FY15 NDAA created the DAC-IPAD, a successor panel to the 

JPP. The DAC-IPAD's mandate is to advise the Secretary of Defense on the 

investigation, prosecution, and defense of allegations of rape, forcible sodomy, sexual 

assault, and other sexual misconduct involving members of the Armed Forces. The 

DAC-IPAD began holding quarterly meetings in January 2017, and recently issued its 

first annual report to both the Senate and House of Representatives’ Committees on 

Armed Services. Code 20's HQE coordinates the Navy and Departmental response to 

DAC-IPAD requests for information and serves as an advisor to the 16-member panel 

providing substantive guidance to support DAC-IPAD's mandate to include making 

available subject-matter experts to testify.

OJAG’s Criminal Law Division plays an active role in numerous multi-disciplinary 

working groups, including groups tasked with developing responses to retaliation, 

bullying and hazing, and fraternization. 

In FY17, Code 20 continued to advance the Navy's Special Victims Investigation 

and Prosecution (SVIP) capability, as required by section 573 of the FY13 NDAA. In 

September 2017, Code 20 and the Naval Justice School (NJS) co-sponsored a two-day 

course on sexual assault policy for staff judge advocates (SJAs). The course is highly 

encouraged for SJAs currently providing advice to General Court-Martial Convening 

Authorities (GCMCAs), sexual assault-initial disposition authorities (SA-IDAs), those 

serving as Region Legal Service Office (RLSO) Command Services Department Heads, 

and SJAs for Type Commanders or other commands that frequently convene courtsmartial. The course provides instruction on, and encourages discussion of, current legal 
61

issues involving sexual assault policy and dispositions facing SJAs advising GCMCAs 

and SA-IDAs. Among the key topics reviewed were the FY17 NDAA and the Military 

Justice Act of 2016, the status of its implementation, the requirements recent policies 

and legislation place on SJAs and commanders, and the corollary impact on the military 

justice process. The September 2017 course was attended by judge advocates from 

paygrades O-3 through O-6. 

The Criminal Law Division creates guides for commanders and SJAs on various 

topics, such as an overview of Military Rule of Evidence (MRE) 514 and a checklist for 

SJAs on sexual assault response that incorporates all requirements and references, 

current as of April 2017. These references are posted on Code 20’s online Sharepoint 

site and updated as necessary. Code 20 also participated in a cross-functional training 

symposium on victims’ rights that included Victims’ Legal Counsel (VLC), disability 

evaluation attorneys, legal assistance attorneys, trial counsel, and SJAs. The Criminal 

Law Division regularly conducts tailored trainings for various providers within the SAPR 

program, such as a May 2017 course geared towards senior SJAs and a February 2017 

course for VLC.

Code 20 maintains strong relationships with the Department of the Navy Sexual 

Assault Prevention and Response Office (DON SAPRO), N17, and the Naval Education 

and Training Command (NETC), and provides legal review of all SAPR training 

products before they are released to the Fleet. The Criminal Law Division is currently

working closely with NETC on updating NETC’s sexual assault prevention training: Full 

Speed Ahead (FSA) to include a module on social media misconduct. The updated 

module builds on the FSA foundational elements of personal accountability, peer 

engagement and intervention, values-based decision-making, resilience, and 

leadership, applying them in the context of non-consensually distributed intimate 

images. 

Code 20 also participates in the Navy SAPR Cross-Functional Team (CFT), 

which is comprised of SAPR stakeholders representing all lines of effort. The CFT 

analyzes prevention initiatives, response and support, training, and policy legislation. 

The CFT meets monthly to provide updates, synchronize actions, discuss best practices 

and concerns in the SAPR field, and ensure standardization of messaging. 

Code 20 is responsible for compiling the Navy’s data for the Annual Report to 

Congress on Sexual Assault in the Military. To accomplish that objective, Code 20 

Legal Officers relied exclusively on the Defense Sexual Assault Incident Database 

(DSAID), the comprehensive database launched in 2013 that tracks and reports sexual 

assault incidents. In 2017, Code 20 provided one fully-qualified DSAID Legal Officer 

who personally reviewed and entered over 1,000 Sexual Assault Disposition Reports 

and dispositions of Unrestricted Reports of sexual assaults. Code 20 continues to 

participate in monthly DSAID Change Control Board meetings responsible for providing 

recommendations to improve and enhance DSAID capabilities.
62

Finally, during the reporting period, Code 20 reviewed thirty-three records of trial 

under Article 69(a), UCMJ; three records under Article 69(b), UCMJ; and zero petitions 

under Article 73, UCMJ.

NATIONAL SECURITY LITIGATION DIVISION (CODE 30)

Organization. During the reporting period, Code 30 was staffed with a maximum 

of two officers. 

Mission. Code 30 serves as the JAG’s central point of contact for matters 

involving classified information and national security cases. The Division works closely 

with other agencies in the intelligence and law enforcement communities, other 

Services, and the DoJ to refine the Navy’s classified litigation practice, facilitate the use 

of Navy classified information, and coordinate the litigation of high-visibility cases while 

protecting Navy information. Code 30 also reviews proposed legislation and regulations 

pertaining to national security matters and interacts with Original Classification 

Authorities (OCAs) and Special Security Officers.

Code 30 provided extensive investigation and litigation support to commanders, 

SJAs, trial counsel, and defense counsel from all Services. Litigation support included 

reviewing and cataloging classified material for trial, coordinating with high-level OCAs 

about the protection and use of their classified information, processing security 

clearance requests for courts-martial personnel and requests for classification reviews 

of evidence, and advising on the assertion of the classified information privilege under 

Military Rule of Evidence 505, the Classified Information Procedures Act (CIPA), and 

the State Secrets Protection Act (SSPA). Code 30 support extended to the DoJ 

National Security Division by facilitating the use of Navy classified materials vital to trial 

and communicating between the intelligence and federal law enforcement communities 

and the Department of the Navy.

During the reporting period, Code 30 worked on twenty complex espionage and 

mishandling cases, including the long-term, high-profile case against the first Naval 

Officer accused of espionage in decades. Following his guilty plea, Code 30 is working 

with the Navy-Marine Corps Court of Criminal Appeals (NMCCA) to facilitate the use of 

classified materials during the appellate review process. Code 30 continued to be 

involved in the high visibility cases against Army Sergeant Bowe Bergdahl and 

Benghazi terror suspect Abu Khattala. Code 30 also worked closely with the 

Department of Defense, DoJ, and the Department of State to address the Federal 

Republic of Germany’s concerns about U.S. military justice in connection with finding a 

missing witness for a sensitive court-martial. Code 30 continues to provide advice to 

military investigative agencies during developing espionage cases.

Code 30 co-sponsored the latest iteration of the Classified Information Litigation 

Course in July 2017 with NJS and taught numerous blocks of instruction to counterintelligence officers at the Joint Counter Intelligence Training Academy, and to allService officers at the Army’s Judge Advocate Legal Center and School. Code 30 
63

continues to foster relationships within the intelligence community, the other Services, 

NCIS, FBI and DoJ. 

Code 30 maintains an extensive library of resources and templates to assist in 

litigation efforts. Improvements to the Code 30 SharePoint site have ensured that this 

information is available to all Judge Advocates facing such challenging cases. 

Additionally, Code 30 retains a hard-copy library of significant Navy classified 

information cases. 

Finally, Code 30 continues to publish and update a National Security Litigation 

primer. The primer serves as a starting point for attorneys across all services litigating 

cases involving classified information.

ADMINISTRATIVE SUPPORT DIVISION (CODE 40)

Organization. During the reporting period, Code 40 was staffed with one officer, 

two civilians, and nine enlisted Marine Corps staff members.

Mission. Code 40 provides administrative and logistical support services to 

NAMARA and NMCCA. Code 40 personnel review all records of trial forwarded to 

NAMARA for appellate review pursuant to Articles 66 and 69, UCMJ for completeness; 

promulgate decisions of the NMCCA in accordance with the Manual of the Judge 

Advocate General (JAGMAN) and the MCM; manage the OJAG court-martial central 

filing system, which includes original records of trial maintained at NAMARA; manage 

and retrieve archived records of trial stored at the Washington National Records Center 

in Suitland, Maryland; and return all NMCCA and CAAF mandates and judgments on 

remand to commands worldwide for corrective action. 

During FY17, Code 40 examined 429 records of trial for completeness prior to 

forwarding the records for appellate review pursuant to Articles 66 and 69, UCMJ. Also 

during FY17, Code 40 promulgated 307 NMCCA decisions to appellants and transferred 

all 2014 (calendar year) records of trial (412) to the Washington National Records 

Center. FY17 also saw Code 40 coordinate the execution of 328 punitive discharges 

awarded to appellants at courts-martial. Code 40 oversaw 26 NMCCA mandates and 2 

mandates ordered by CAAF. Code 40 finish filed 470 court-martial records.

APPELLATE DEFENSE DIVISION (CODE 45)

Organization. During this reporting period, Code 45 was staffed with eleven 

active duty Navy and Marine Corps judge advocates, one civilian attorney, and two 

civilian support personnel. Two U.S. Coast Guard judge advocates were also colocated with Code 45 to execute Coast Guard appellate defense services. Twenty-one 

Navy and Marine Corps Reserve judge advocates supported Code 45.

Mission. Code 45 represents Navy and Marine Corps appellants before NMCCA, 

CAAF, and the U.S. Supreme Court. Code 45 provides assistance to trial defense 
64

counsel in the field by helping to file extraordinary writs before the NMCCA and CAAF, 

providing advice on individual cases in litigation, and providing instructors at formal 

training sessions on topics including recent appellate rulings and how to preserve 

issues for appeal. Code 45 also works closely with the Defense Counsel Assistance 

Programs (DCAP) of both the Navy and Marine Corps to advance the skills and success 

of trial defense counsel.

As reflected in the chart below, a total of 361 new cases were docketed at the 

NMCCA in FY17. Code 45 filed 328 initial NMCCA pleadings, consisting of 117 briefs 

and 211 merit submissions. Reservists filed 72% of these initial pleadings. In addition, 

Code 45 filed 337 substantive pleadings, including 37 reply briefs, 26 responses to 

government motions (other than motions for enlargement), 7 supplemental briefs, 18 

responses to court orders, 242 motions (other than motions for enlargement) and 7 

petitions for extraordinary relief at the NMCCA. Counsel presented oral argument in 9 

cases before the NMCCA.

Code 45 filed 50 supplemental briefs to petitions and 4 extraordinary writ appeal 

petitions at the CAAF. The Navy’s Judge Advocate General certified one case (United 

States v. Hale, 76 M.J. 713 (N-M. Ct. Crim. App. 2017) to the CAAF. Code 45 filed 4 

briefs and orally argued 6 cases before the CAAF.

NMCCA FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16 FY17

Cases Docketed 694 678 598 514 437 373 348 383 361

Briefs Filed 149 159 161 191 143 161 118 123 117

Other 

Substantive 

Pleadings

410 847 693 632 522 587 326 326 337

Total Cases 

Filed 679 744 531 488 374 387 311 349 328

Oral Arguments 14 15 20 19 15 15 14 11 9

CAAF

Petitions with 

Supplemental 

Briefs Filed

120 69 81 117 90 79 96 49 50

Briefs Filed 36 21 20 19 13 7 12 8 4

Oral Arguments 20 11 7 12 9 2 7 11 6

U.S. Supreme 

Court Petitions 3 6 2 3 2 4 0 0

3
65

While there has generally been a reduction in the number of cases docketed at 

the NMCCA in recent years, the percentage of cases appealed has increased. The 

percentage of cases in which appellate issues were raised as an overall percentage of 

appellate caseload was 22% in FY09 and 36% in FY17. This change correlates with an 

overall increase in appellate complexity.

Significant cases this term include:

 A.M. v. United States, (finding Art. 6b(a)(5), UCMJ, does not confer a right 

upon the alleged victim to contemporaneous access to written comments trial 

counsel submitted to an Article 32 preliminary hearing officer nor participation 

in discussions between trial and defense counsel and that Art. 6b(a)(3) does 

not include a right to contemporaneous access to exhibits the parties 

submitted, but did not display, during the preliminary hearing).

 J.M. v. Payton-O’Brien, 76 M.J. 782 (N-M. Ct. Crim. App. 2017) (keeping the 

United States and the Real Party in Interest from filing briefs in response to 

J.M.’s petition for a writ of mandamus and holding the Constitution applies to 

MRE 513 despite the fact that the constitutional exception was removed from 

MRE 513).

 United States v. Betancourt, No. 201500400, 2017 CCA LEXIS 386 (N-M. Ct. 

Crim. App. June 6, 2017) (finding the military judge did not abuse her 

discretion when she ruled evidence seized during search of defense counsel 

spaces was admissible and that she did not err when she disqualified 

appellant’s initial detailed defense counsel and compelled them to testify 

about how they obtained and secured appellant’s cell phone).

 United States v. Darnall, 76 M.J. 326 (C.A.A.F. 2017) (finding no probable 

cause to apprehend appellant and ruling evidence should have been 

suppressed as fruit of the poisonous tree).

 United States v. Hale, 76 M.J. 713 (N-M. Ct. Crim. App. 2017) (presuming 

prejudice and reversing convictions due to defense counsel’s conflict created 

by the conduct of trial counsel who was defense counsel’s husband’s 

supervisor and, alternatively, asserting Article 66(c), UCMJ, power to not 

affirm a case that “should not” be affirmed).

 United States v. Motsenbocker, No. 201600285, 2017 CCA LEXIS 651 (N-M. 

Ct. Crim. App. Oct. 17, 2017) (finding evidence that the victim is incapable of 

consenting due to intoxication, which violates Art. 120(b)(3), UCMJ, is 

admissible to prove sexual assault by bodily harm under Art. 120(b)(1)) 

(originally decided on Aug. 10, 2017 with corrected opinion issued on Oct. 17, 

2017).
66

 United States v. Hackler, 75 M.J. 648 (N-M. Ct. Crim. App. 2016) (whether 

specifying a heterosexual act as an element of criminal adultery constitutes a 

violation of equal protection in light of recent legal developments with respect 

to sodomy and homosexual marriage). 

 United States v. Sager, 76 M.J. 158 (C.A.A.F. 2017) (holding the words 

“asleep, unconscious, or otherwise unaware” in Article 120(b)(2), UCMJ, 

create three distinct theories of criminal liability).

APPELLATE GOVERNMENT DIVISION (CODE 46)

Organization. During the reporting period, Code 46 was staffed with eleven

active duty judge advocates (including one activated reservist), one civilian attorney, 

and two civilian administrative employees. In FY17, Code 46 was supported by seven 

reserve judge advocates in addition to the one activated reservist mentioned above.

Mission. Under Article 70, UCMJ, the primary mission of Code 46 is to represent 

the United States before NMCCA and the CAAF. Code 46 also provides interlocutory 

appeal and prophylactic appellate support and advice to Navy and Marine Corps trial 

counsel, SJAs, and post-trial review officers throughout the Navy and Marine Corps for 

all types of pretrial, court-martial, and post-trial matters.

A summary of FY17 appellate activity is provided in the following chart. These 

calculations are based on input from the Court-Martial Tracking and Information System 

(CMTIS) database. The calculations in CMTIS for “Briefs Filed” include Government 

briefs, answers to supplements, and supplemental briefs, and amicus briefs. “Other 

Pleadings” includes responses to extraordinary writs, motion responses, responses to 

Court Orders, and Petitions for Reconsideration. The number of CAAF and NMCCA 

briefs filed remained relatively constant from FY16, as did the number of oral arguments 

at both courts. This year, Code 46 conducted two outreach arguments: one at George 

Washington Law School and another at George Mason’s Antonin Scalia Law School.

FY11 FY12 FY13 FY14 FY15 FY16 FY17

NMCCA

Briefs Filed 188 198 152 159 140 131 130

Other Pleadings 144 439 439 479 435 434 413

Oral Arguments 20 19 15 16 11 11 9

CAAF

Briefs Filed 22 24 9 12 23 26 15

Other Pleadings 70 111 98 72 97 84 66

Oral Arguments 7 12 11 3 7 11 7
67

Significant issues this term include:

 United States v. Darnall, 76 M.J. 326 (C.A.A.F. 2017) (Whether agents 

had probable cause to apprehend a suspect where agents connected the 

suspect's name to an incriminating piece of mail, but had not connected 

the suspect himself to that incriminating piece of mail);

 United States v. Bartee, 76 M.J. 141 (C.A.A.F. 2017), petition for cert. 

filed, __ U.S.L.W. __ (U.S. Jul. 28, 2017) (No. 17-175) (Whether a 

convening authority violates Article 25, UCMJ, when he reconvenes the 

same panel after a military judge dismisses the panel for violating Article 

25, but the convening authority states that he knew he could select other 

members and used the Article 25 factors);

 United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) (Whether 

unobjected to statements from a trial counsel made during closing 

argument on the merits and argument on sentencing amounted to 

prosecutorial misconduct under the plain error test);

 United States v. Ravenscraft, 2017 CCA LEXIS 419 (N.M.C.C.A. Jun. 27, 

2017), and J.M. v. Payton-O'Brien, 76 M.J. 782 (N.M.C.C.A. 2017) 

(Whether and how a military judge may order production or release of 

MRE 513 privileged communications when the privilege is asserted by the 

holder of the privilege);

 United States v. Hale, 76 M.J. 713 (N-M.C.C.A. 2017) (Whether a 

potential conflict of interest arises from trial counsel's supervisory position 

over trial defense counsel's husband that is tested for prejudice under 

Culyer v. Sullivan or Strickland v. Washington);

 United States v. Dinger, 76 M.J. 552 (N-M.C.C.A. 2017) (Whether 

Congress' statement in 10 U.S.C. § 6332 that the transfer of a member of 

the naval service to a retired status "is conclusive for all purposes" 

precludes the issuance of a punitive discharge to a retiree);

 United States v. Forrester, 76 M.J. 389 (C.A.A.F. 2017) (Whether 

punishing the same transaction of obtaining child pornography with four 

convictions unreasonably exaggerates Appellant's criminality and triples 

his punitive exposure, constituting an unreasonable multiplication of 

charges);

 United States v. Chikaka, 76 M.J. 310 (C.A.A.F. 2017) (Whether the lower 

court erred in failing to find evidence of unlawful command influence 

sufficient to shift the burden to the Government to disprove unlawful 

command influence, where the military judge admitted on the merits a 

campaign plan to "fully operationalize the Commandant's guidance" from 
68

the Heritage Tour, and then during sentencing admitted a picture of the 

Commandant and allowed Appellant's commanding officer to testify that it 

was important for the members to adjudge a harsh sentence);

 United States v. Sager, 76 M.J. 158 (C.A.A.F. 2017) (Whether the 

language under Article 120(d) stating that a person may not make sexual 

contact with someone who is "asleep, unconscious, or otherwise 

unaware," creates three separate theories of liability under which one may 

be guilty of the offense); and,

 United States v. Rosario, 76 M.J. 114 (C.A.A.F. 2017) (Whether the 

NMCCA erred in conducting its Article 66(c), UCMJ, review by finding as 

fact allegations that supported charges of which an appellant was 

acquitted to affirm the findings and sentence).

Code 46 coordinates with Navy and Marine Corps Trial Counsel Assistance 

Programs (TCAPs) to advise and respond to questions from the field on pending 

litigation and appellate matters. Code 46 maximizes its reach electronically, operating a 

discussion board, a Military Justice Wiki, and a Military Justice Blog. Trial counsel and 

appellate government counsel from other Services are also able to participate and 

contribute to the Blog, the discussion board, and the Military Justice Wiki. In addition, 

Code 46 emails newsletters and memoranda to practitioners as necessary. 

To best represent the United States before appellate courts, Code 46 

coordinates with sister Services to maintain consistent United States positions before 

service appellate courts, the CAAF, and the U.S. Supreme Court, and moots cases 

jointly to maximize the efficacy and competence of appellate practice.

Code 46 works with the TCAPs and NJS, to provide formal trial counsel training. 

Code 46 training routinely covers: handling interlocutory appeals, extraordinary writs, 

DuBay hearings and remands; protecting the record to withstand appellate scrutiny; and 

explaining the fundamental areas of intersection between trial and post-trial processing 

and appellate review. In FY17, Code 46 conducted the Second Annual VLC Appellate 

Training to Navy and Marine Corps VLC. Code 46 also sent an instructor to the Marine 

Corps’ 2017 Post-Trial Review Summit, contributing to the Marine Corps’ efforts to 

minimize post-trial processing errors.

Code 46 counsel served on the Steering Committee for the highly successful 

Fifth Annual Joint Appellate Advocacy Training, held at Joint Base Myer-Henderson Hall 

from September 18-20, 2017. Code 46 counsel participated in and moderated various 

panels teaching appellate litigation skills with emphasis on preventing appellate reversal 

to appellate and trial counsel from across the services. The Training was attended by 

nearly 125 judge advocates from across the globe and from every military Service. 

Speakers included: Judge John E. Sparks, (CAAF); Professor Neal Katyal, Georgetown 

Law; Mr. Michael Dreeben, Deputy Solicitor General; Mr. Dwight Sullivan, Department 

of Defense Office of the General Counsel; Col (Ret) Don Christensen, President, 
69

Protect our Defenders; Mr. Victor Stone, Victim’s Attorney, Maryland Crime Victims 

Resource Center; Mr. Gregory Castanias, Partner, Jones Day; COL (Ret) Steven David, 

Indiana Supreme Court Justice; Mr. Kannon Shanmugam, Partner, Williams & Connolly. 

Code 46 counsel also attended advanced appellate training at the annual Appellate 

Judges’ Education Institute and CAAF’s Continuing Legal Education and Training 

Program.

Representatives from Code 46 also engaged in community outreach efforts this 

year, to include serving as mock trial coaches at American University Washington 

College of Law, as moot court judges for student competitions at the George Mason 

Law School, and as appellate moot court judges at the American Bar Association’s 

(ABA’s) National Appellate Advocacy Competition.

During FY17, Code 46 continued the DON’s electronic record of trial program, 

which at year’s end included approximately 95% of the trial records docketed at 

NAMARA. 

ASSISTANT JUDGE ADVOCATE GENERAL,

CHIEF JUDGE, DEPARTMENT OF THE NAVY

The Assistant Judge Advocate General, Chief Judge, Department of the Navy 

(CJDON) (AJAG 05) is the senior supervisory jurist in the DON, overseeing the trial and 

appellate judiciaries. The CJDON serves as the Rules Counsel for the judiciaries and 

the community sponsor for the Navy JAG Corps’ Military Justice Litigation Career Track 

(MJLCT). The CJDON is selected by a competitive flag selection board and serves for 

three years.

THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS (CODE 51)

Organization. During FY17, NMCCA included between seven and eight active 

duty Navy and Marine Corps appellate judges. The NMCCA was also supported by five 

Navy reserve and two Marine Corps reserve appellate judges, a mid-grade officer 

senior law clerk, two Navy and Marine Corps junior officer law clerks, and one junior 

officer temporary assignment law clerk. The Court benefitted from its robust intern 

program, which provided three part-time spring semester student law clerks, five 

summer student law clerks, and two part-time fall semester student law clerks. 

Mission. NMCCA is responsible for all cases referred under Articles 62(b), 66(b), 

69(d), and 73, UCMJ. The Court may also entertain petitions for extraordinary relief, 

including petitions filed by crime victims pursuant to Article 6b, UCMJ.

Legal issues addressed in FY17 included (case names in parenthesis):

 Whether the military judge’s instruction on aggravated assault that “the risk of 

death or grievous bodily harm must be more than merely a fanciful, speculative, 
70

or remote possibility’ was prejudicial error since weeks before trial in United 

States v. Gutierrez, 74 M.J. 61, 68 (C.A.A.F. 2015) the Court of Appeals for the 

Armed Forces (CAAF) expressly overruled United States v. Joseph, 37 M.J. 392 

(C.M.A. 1993), which formed much of the basis for the subject instruction. 

(Rodriguez)

 Whether the appellant received the effective assistance of counsel in his posttrial representation when detailed defense counsel specifically limited the 

appellant’s requested clemency request due to a misunderstanding of the 

Convening Authority’s (CA’s) clemency powers. (Giacinti)

 Whether the appellant received the effective assistance of counsel in his posttrial representation when detailed defense counsel requested relief outside the 

authority of the CA to grant. (Johnson)

 Whether the Court is precluded from conducting a proper factual sufficiency 

review when members, without explanation, found the appellant guilty of larceny 

of an amount less than the amount charged - rendering the verdict arguably 

ambiguous. (Peterson)

 Whether adultery under the UCMJ unconstitutionally imposes criminal liability 

and punishment for only heterosexual service members. (Williams)

 Whether pursuant to a petition for extraordinary relief in the nature of a writ of 

error coram nobis, the Court should retroactively apply United States v. Jones, 

68 M.J. 465 (C.A.A.F. 2010), which requires the use of the elements test to 

determine whether one offense is a lesser included offense (LIO) of another, to a 

2001 conviction for indecent assault as an LIO of rape, setting it aside and 

substituting the permissible LIO of assault consummated by a battery. (Diggs)

 Whether an accused’s representation was adversely affected by an actual 

conflict of interest and his convictions should be set aside under Cuyler v. 

Sullivan, 446 U.S. 335 (1980), where, inter alia, the lead defense counsel failed 

to inform her client that the prosecutor was the rating officer of her active duty 

husband and that she anticipated that she herself would become a trial counsel 

within the region soon after the accused’s trial. (Hale)

 Whether the Convening Authority violated Article 60, UCMJ, by disapproving the 

appellant’s adjudged bad-conduct discharge when a pretrial agreement required 

only that he suspend and remit any adjudged discharge. (Kruse)

 Whether a command authorized search of the defense counsel offices amounted 

to unlawful command influence and prosecutorial misconduct, and whether the 

military judge violated the appellant’s right to counsel under the Sixth 

Amendment to the Constitution by disqualifying his original trial defense counsel 

and compelling the attorney to testify against him at trial. (Betancourt)
71

 Whether the military judge abused his discretion in failing to eradicate apparent 

unlawful command influence from the appellant’s trial in view of (1) the 

Commandant of the Marine Corps having made comments regarding the guilt of 

those accused of sexual assault during a series of lectures known as the 

Heritage Brief; (2) President Obama’s comments regarding holding people 

accused of sexual assault accountable; (3) the Secretary of the Navy’s 

comments regarding the Naval Academy failing to hold persons who commit 

sexual assault accountable; (4) the Superintendent of the Naval Academy’s 

comment that he felt a “call to action” in dealing with sexual assault cases; and 

(5) the substantial pretrial publicity surrounding the appellant’s case. (Thompson; 

Art. 69 Review)

 Whether the convening authority abused his discretion in denying a request for 

rehearing despite his doubts about the fairness and integrity of the court-martial 

and whether the military judge committed reversible error by restricting the 

appellant’s allocution rights. (Barry)

 Whether a verdict was ambiguous where an appellant was charged with stealing 

a variety of items, including two dog kennels, and the members found him guilty 

of stealing one dog kennel without specifying which of the two kennels the guilty 

finding related to. (Tinsley)

 Whether a crime victim’s Article 6b, UCMJ, statutory right to not be excluded 

from public hearings entitled her to a writ of mandamus ordering a preliminary 

hearing officer (PHO) to allow the victim to review the written comments and the 

evidentiary exhibits that the trial and defense counsel provided to the PHO for 

purposes of his Article 32(c), UCMJ, responsibilities before he prepared his 

report. (Densford)

 Whether in light of United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the military 

judge’s admission of charged sexual misconduct pursuant to MRE 413, and 

subsequent instructions violated the appellant’s due process rights. (Wiredu)

 Whether a court-martial lacked personal jurisdiction over a military retiree in light 

of the U.S. Supreme Court’s holding in Barker v. Kansas, 503 U.S. 594, 605 

(1992), that for tax purposes, military retirement benefits are not current 

compensation for reduced services; and (2) whether Congress’ statement in 10 

U.S.C. § 6332 that the transfer of a member of the naval service to a retired 

status “is conclusive for all purposes” precludes the issuance of a punitive 

discharge to a retiree. (Dinger)

 Whether the military judge erred in admitting propensity evidence in light of 

United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). (Luna)
72

 Whether assuming arguendo that curative measures taken by the military judge 

were inadequate, could the court be confident that the members convicted the 

appellant on the basis of the evidence alone where prosecutorial misconduct that 

was severe and permeated the initial findings’ argument. (Andrews)

 Whether when the appellant was charged with sexual assault by causing bodily 

harm and abusive sexual contact by causing bodily harm, both of which offenses 

required the government to prove beyond a reasonable doubt that the alleged 

victim did not consent to the sexual act or sexual contacts, it was error for the 

government to argue an uncharged violation that she was incapable of 

consenting, and additionally the military judge erred in instructing the members 

regarding incapacity due to intoxication using a standard established in United 

States v. Pease, 75 M.J. 180 (C.A.A.F. 2016). (Motsenbocker)

 Whether a military judge may craft a remedy to guarantee a meaningful 

opportunity to present a complete defense when the holder of the MRE 513 

privilege asserts the privilege; the requested information does not fall under one 

of the enumerated exceptions to the privilege listed in MRE 513(d); and the 

failure to produce said information for review or release would arguably violate 

the Constitution. (Ravenscraft)

The Court will host the joint-service Fulton Conference in September of 2018. 

The three-day conference for the judges and staffs of the courts of criminal appeals 

includes one day on judicial writing by a member of the New York University School of 

Law faculty. As in other years of this acclaimed training conference, the speakers will 

include a mix of DoD and external speakers, with particular emphasis on the changes to 

military justice practice resulting from the Military Justice Act of 2016, as incorporated in 

the FY17 NDAA. 

The NMCCA continues to maintain a website at http://www.jag.navy.mil. All 

NMCCA opinions are available for download at the website. In addition, the Court 

maintains audio files from oral arguments heard before it as well as a docket for 

upcoming oral arguments. Applications for admission to the NMCCA bar and rules of 

the court are also maintained on the website.

NAVY-MARINE CORPS TRIAL JUDICIARY (CODE 52)

Organization. The Navy-Marine Corps Trial Judiciary (NMCTJ) is organized into 

eight geographic judicial circuits, with thirteen active duty Marine Corps judges and 

thirteen active duty Navy judges. Trial judges are stationed throughout the world in 

Fleet and Marine force concentration areas and travel to other locations, as required, to 

conduct trials. The active duty judiciary is supported by reserve units from both 

Services, with a total of fifteen reserve trial judges.

Mission. The core mission of the NMCTJ is to preside over all Navy and Marine 

Corps general and special courts-martial. In recent years, trial judges have presided 
73

over cases directly impacted by the significant statutory changes enacted by Congress 

and executive orders issued by the President. They have directly implemented and 

addressed such topics as defining the evolving role of the Victims’ Legal Counsel and 

the parameters of their representation, particularly in the area of production and 

discovery of victims’ mental health records under MRE 513, guardianship of victims, 

victim participation in sentencing hearings, and defining the scope of admissible 

propensity evidence under M.R.E. 404b. 

The caseload at the trial level is generally consistent with the previous year, and 

continues to reflect an especially high percentage of contested cases, particularly of 

general courts-martial (GCMs). In FY17, the NMCTJ presided over 565 trials (258 

GCMs and 307 special courts-martial (SPCMs)). Of the adjudicated GCMs, 38% (98) 

were contested, as were 24% (75) of the SPCMs. 

In addition to their primary military justice mission, our trial judges continue to 

support the Office of Military Commissions (OMC) Trial Judiciary, with three Navy and 

Marine Corps judges assigned to the pool of OMC judges. The Circuit Judge of the 

Eastern Judicial Circuit currently presides over the case of United States v. al Iraqi. 

NMCTJ continues to support the training of new judge advocates by providing 

evaluators for the mock trial program at the Naval Justice School. NMCTJ judges also 

support moot courts at law schools throughout the U.S. Reserve trial judges are a vital 

part of these programs. 

In February 2017, the NMCTJ hosted the Joint Military Judges Annual Training 

(JMJAT) in Tampa, Florida, attended by more than 110 active and reserve judges from 

all Services. Instructors for this training included active duty judges and faculty of the 

National Judicial College.

NAVAL LEGAL SERVICE COMMAND (NLSC)

Organization. The Deputy Judge Advocate General of the Navy also serves as 

CNLSC, an echelon 2 command reporting to the Chief of Naval Operations. At the 

conclusion of FY17, NLSC was comprised of 458 judge advocates, 1 Civil Engineer 

Corps officer, 1 administrative Warrant Officer, 194 legally trained enlisted members, 13 

administratively trained enlisted members, 215 civilians, and 36 foreign nationals.

Mission. NLSC provides a wide range of legal services to afloat and ashore 

commands, active-duty naval personnel, family members, retirees, and eligible 

beneficiaries from the other Services at 99 offices worldwide. In FY17 NLSC provided 

legal advice, services, and training to the Fleet through 14 echelon 3 commands (nine 

RLSOs; four Defense Service Offices; and NJS) and their associated detachments and 

branch offices, and through the worldwide VLC Program. Counsel from these 

commands handled courts-martial prosecution and defense, administrative boards, and 

physical evaluation boards; advised local commanders and their staffs; and provided 

legal assistance to active duty members, retirees, and their family members.
74

NLSC continues to track all military justice cases using the Case Management 

System (CMS). Tracked cases include all special victims' cases, as required by DoD 

Directive-Type Memorandum 14-003; all cases where an accused is placed in pretrial 

restraint, restriction, or confinement; and when the RLSO has substantial involvement in 

a case in anticipation of a possible court-martial. CMS is also used to track each officer 

Board of Inquiry. RLSOs have found CMS to be highly effective in tracking all cases 

and providing accurate information to local convening authorities and NLSC 

headquarters.

Over the past year, NLSC has been heavily involved in the development of the 

DON Naval Justice Information System (NJIS). NJIS is a web-based comprehensive 

case management system designed to track Navy and Marine Corps unclassified 

criminal incidents from initial report through adjudication. It is designed to be an 

information system in which users collaborate rather than simply populate a database. 

This is DON's attempt to achieve end-to-end Defense Incident-Based Reporting System 

(DIBRS) compliance. 

Starting in August 2017, NLSC has provided members to the Joint Service 

Committee on Military Justice (JSC) Subcommittee tasked with making 

recommendations concerning the implementation of Section 5504 of the NDAA for 

Fiscal Year 2017. The Subcommittee is identifying potential uniform standards and 

practices for the DoD military justice system data collection, including pretrial, trial, posttrial, and appellate processes. The Subcommittee analysis is ongoing. 

In FY17, NLSC completed 124 general courts-martial, 133 special courts-martial, 

and 128 Article 32 preliminary hearings. While the number of courts-martial has 

declined in recent years, the proportion of contested trials, the complexity of litigation, 

and the scope of out-of-court responsibilities (particularly case investigation and 

development) shouldered by trial and defense counsel have all increased substantially. 

Further, the addition of VLC into the trial process and the expansion of victims’ rights 

have added new layers of complexity to trial and appellate practices. As a result, 

demand on judge advocates involved in the administration of military justice has 

increased. 

DEFENSE COUNSEL ASSISTANCE PROGRAM (DCAP)

Organization. DCAP is aligned under NLSC and reports to the Chief of Staff, 

Defense Service Offices (COS-DSO). DCAP’s current Director is an O-5 qualified as 

“Specialist II” in the Military Justice Litigation Career Track (MJLCT). He previously 

served as a defense counsel, trial counsel, afloat SJA, NJS Evidence and Trial 

Advocacy Instructor and most recently, as a Senior Defense Counsel (SDC). The 

DCAP Director is also member of the Article 6 inspection team. As the defense subject 

matter expert on the team, the Director participated in Article 6 inspections of two of the 

four Defense Service Offices (DSOs) and their detachments in FY17. 
75

The Director is supported by two Deputy Directors, both O-4s. One, stationed in 

Washington, DC, is qualified as a “Specialist II” and has previously served as a defense 

counsel, trial counsel, Naval Special Warfare Group SJA, and appellate government 

counsel. The other Deputy, stationed in the Fleet concentration area of Norfolk,

Virginia, is a “Specialist I” and has previously served as a trial counsel, NJS Instructor, 

and defense counsel. By Summer 2018, an incoming Deputy, also an O-5 “Specialist 

II,” will be stationed in San Diego, California. DCAP is in the final process of hiring a 

Highly Qualified Expert (HQE) and expects to have this position filled by Spring 2018. 

Although normally acting in an advisory capacity for defense counsel, DCAP 

personnel are also available for detailing to cases as warranted. Likewise, when local 

supervisory counsel is unavailable, DCAP personnel are available to serve as “behindthe-bar” supervisors for junior counsel litigating contested cases. 

 

Mission. DCAP’s primary mission is to support and enhance the proficiency of 

the Navy criminal defense bar, provide experienced reach-back and technical expertise 

for case collaboration, and to develop, consolidate, and standardize resources for 

defense counsel. DCAP provides full-spectrum advice and serves as a resource 

through every phase of pre-trial investigation and court-martial litigation. 

During FY17, DCAP assisted detailed defense counsel across the spectrum of 

trial practice including trial strategy, motions practice, argument development, 

investigations, discovery, requests for witnesses and expert assistance, voir dire 

strategies and questions, complex legal research, and preparing clients and witnesses 

for testimony. DCAP was available for on-site visits during trial preparation and were 

often in court to assist “behind-the-bar.” DCAP also provided advice on post-trial 

matters and frequently consulted with defense counsel concerning professional 

responsibility and ethics issues.

DCAP was responsible for a wide array of training for defense counsel. DCAP 

brought together military and civilian experts to provide comprehensive training on 

defending service members accused of sexual assault at the Defending Sexual Assault 

Cases (DSAC) course. Together with NJS and the Marine Corps defense bar, DCAP 

organized and presented at the semi-annual Defense Counsel Orientation course that is 

designed to prepare new defense counsel to represent court-martial and administrative 

separation clients. In addition, DCAP provided instruction at the Basic Trial Advocacy 

course and coordinated with the Trial Counsel Assistance Program (TCAP) to present 

the Senior Managers’ Course for military justice supervisors. Finally, DCAP conducted 

five individual week-long mobile training visits around the world, providing training to 

Defense Service Offices and their detachment offices. 

DCAP aided in the effort to ensure that Defense Litigation Support Specialist 

(DLSS) positions were staffed with quality applicants, resulting in all eight defense 

investigator positions being filled. DCAP provided standardized training and assisted in 

establishing uniform policy and protocols for the DLSS program. DCAP also oversaw 

the procurement of Microsoft Surface Pro tablets to enhance the effectiveness and 
76

mobility of DLSS.

DCAP continues to develop salient resources and provides written advisories on 

recent case law and changes to the UCMJ. DCAP maintains a centralized defense 

database on its Microsoft SharePoint site which allows for the collection of metrics and 

real-time exchange and dissemination of information and serves as a central repository 

of documents and resources developed by DCAP and counterpart offices in fellow 

Services, Code 20, and NJS. SharePoint allows offices to collaborate across vast 

geographical boundaries, promoting a “world-wide defense firm” mentality.

 

TRIAL COUNSEL ASSISTANCE PROGRAM (TCAP)

Organization. TCAP is aligned under NLSC and reports to the Chief of Staff, 

Region Legal Service Offices (COS-RLSO). TCAP’s current Director is a Navy O-6, a 

Military Justice Litigation Career Track (MJLCT) designated “Expert.” The current 

Director, an O-6, received his LL.M. in Litigation from George Washington University 

School of Law. He previously served as a Military Judge, RLSO Executive Officer, 

Senior Defense Counsel, Senior Trial Counsel, and SJA. 

The Deputy Director is a GS-15 civilian with approximately 15 years of 

experience prosecuting special victim crimes (SVCs) and advocating for victims’ rights. 

She also served as a Program Director at the National District Attorney’s Association, 

where she developed training and provided assistance to local prosecutors around the 

United States. 

TCAP’s HQE is a former civilian prosecutor with 18 years of experience, most 

notably as a prosecutor specializing in crimes against children and as a senior attorney, 

instructor, and course coordinator for the National District Attorneys Association.

The Assistant Director is an O-4 MJLCT-designated "Specialist I" who has 

extensive military justice experience. He served as a defense counsel and trial counsel 

as well as a legal assistance attorney and SJA.

Mission. TCAP provides advice, assistance, support, resources, and training for 

Navy trial counsel worldwide. TCAP regularly assists and advises trial counsel on all 

aspects of prosecution, including pre-trial investigation, drafting charges, trial 

preparation and motions practice, discovery, securing and preparing expert witnesses, 

devising trial strategy, and professional responsibility issues. TCAP engages trial 

counsel in the field via regular case review conferences and coordinates with Code 46 

to ensure court-martial prosecutions are postured to withstand appellate review.

TCAP provides more in-depth case assistance upon request. A TCAP counsel is 

detailed as trial counsel or assistant trial counsel when case complexity demands 

special proficiency. For example, the TCAP Director was recently detailed as the lead 

trial counsel on a high profile national security case; the previous Assistant Director 

served as trial counsel in a premeditated murder case; the Deputy Director is assisting 
77

with a complex domestic violence/strangulation case; and, the HQE has provided onscene expert assistance in several complex child sexual assault and child exploitation 

cases.

TCAP is also responsible for monitoring all high-visibility cases and the relative 

experience levels of trial counsel through on-site, periodic observations of Navy judge 

advocates in the performance of their prosecution functions. TCAP regularly provides 

recommendations for improvement, as well as resource recommendations to COSRLSO as necessary.

TCAP maintains an online repository of useful resources such as sample motions 

and responses, foundation questions, articles and manuals on prosecution, case 

disposition tracking, and an expert witness database. TCAP’s SharePoint discussion 

board enables real-time responses to inquiries from the field leveraging enterprise 

knowledge for the benefit of the more remote offices. The discussion board facilitates a 

closer prosecution bar by enabling discussions between trial counsel worldwide.

Finally, TCAP plays a vital role in training trial counsel, partnering with NJS and 

Code 20 in the development of litigation training. TCAP personnel routinely serve as 

instructors at a variety of courses at the NJS schoolhouse, online, and in-person at 

offices worldwide. Coordinating with NJS, TCAP conducted a special victim crimes 

course: intermediate and advanced prosecution principles in domestic violence, adult 

sexual assault and child abuse/exploitation crimes. The course provided focused 

training sessions to Navy, Marine, and Air Force prosecutors and paralegals. This year, 

TCAP coordinated with the Marine Corps TCAP to standardize baseline, intermediate, 

and advanced training in the dynamics of special victim crimes, as well as trial 

advocacy. Additionally, TCAP conducted on-site training for all RLSOs focusing on trial 

advocacy and prosecution of special victim offenses. Using DON Sexual Assault 

Prevention and Response Office funding, TCAP ensured prosecutors’ attendance at 

special victim crimes training including courses with the National District Attorney’s 

Association (training on sexual assault and child abuse), and the End Violence Against 

Women International Annual Conference. TCAP also facilitated outside training with the 

Department of Justice (Sexual Assault Nurse Examiner Expert Witness Course) and the 

Association of Prosecuting Attorneys Child Abuse Symposium.

TCAP supplements its training outreach with a number of webinars focusing on 

prosecuting special victim offenses and other evidentiary topics. These webinars 

enable Navy prosecutors and paralegals to attend educational programs online 

presented by our own and nationally recognized experts at little to no cost. 

 

VICTIMS’ LEGAL COUNSEL (VLC) PROGRAM

Organization. The VLC program is led by a senior O-6 Chief of Staff and a 

civilian (GS-15) Deputy Chief of Staff and operates independently of both trial and 

defense organizations. The program consists of 33 specially trained and certified Navy

judge advocates, two of whom are reservists, and 10 administrative personnel. VLC are 
78

assigned to 25 naval installations around the world, including Annapolis, Maryland; 

Washington, District of Columbia; Oceana, Virginia; Little Creek, Virginia; Norfolk,

Virginia; Groton, Connecticut; Mayport, Florida; Jacksonville, Florida; Pensacola, 

Florida; Gulfport, Mississippi; Great Lakes, Illinois; San Antonio, Texas; Coronado, 

California; San Diego, California; Lemoore, California; Ventura, California; Bremerton,

Washington; Everett, Washington; Pearl Harbor, Hawaii; Guam; Bahrain; Naples, Italy; 

Sigonella, Italy; Rota, Spain; and Yokosuka, Japan.

In addition, the VLC program has renewed a contract with a local Bahraini 

counsel to assist eligible victims of sexual offenses committed by foreign nationals 

whose cases are being prosecuted within the Bahraini court system. Although the 

Bahraini courts recognize the rights of victims, the language barrier and the prohibition 

against VLC appearing before the Bahraini bench created a need for specific local 

counsel services to ensure the rights of victims are preserved. 

Mission. The VLC Program provides independent legal counsel to eligible sexual 

offense victims. VLC advise victims of their reporting options, work with victims through 

the investigation and military justice process, advocate for victims’ rights and interests, 

and help victims obtain access to other support resources. VLC complement the care 

and support victims receive through other organizations such as the Sexual Assault 

Prevention and Response Program, the Family Advocacy Program, the Victim Witness 

Assistance Program, and services offered by victim advocates, chaplains, and 

healthcare providers.

In accordance with federal law, eligibility for VLC services extends to victims of 

sexual offenses who would otherwise be eligible for legal assistance services from a 

military attorney. Generally this includes Navy active-duty and reserve personnel, other 

service personnel and retirees when assaulted by an active-duty Navy perpetrator, adult 

and minor dependents of active-duty Navy members when assaulted by an active-duty 

member, and Department of Defense civilians. VLC began providing services to minor 

dependents assaulted by active duty perpetrators on June 24, 2014 as directed by the 

FY14 NDAA. VLC services are available to victims filing Restricted Reports, 

Unrestricted Reports, or declining to file an official report of sexual assault. 

VLC provide personal representation and advice to victims involved in collateral 

misconduct connected with a report of sexual assault, although collateral misconduct 

resulting in administrative processing or court-martial necessitates assignment of a 

separate military defense counsel. VLC also provide basic legal assistance services 

directly connected to a report of sexual assault. Assistance with more substantive 

matters are referred to the nearest military legal assistance office.

All communications between VLC and their clients, including minors, are 

confidential and privileged. VLC assess all minor client’s capacity separately and 

continuously to determine if the client has the considered judgment and capacity to 

direct VLC representation. No victim is required to contact or consult with a VLC, and 

declining VLC services initially does not preclude a victim from representation later. 
79

VLC support is available in-person and via remote means, if necessary, by telephone, 

email, text, video-teleconferencing, and FaceTime. 

All VLC are required to successfully complete the Special Victims' Counsel 

Certification (SVCC) Course offered by either the Army or the Air Force in order to be 

certified by the Judge Advocate General to practice as a VLC. VLC also attend 

specialized courses and symposia such as Prosecuting Special Victims Cases (NJS), 

Representing Child Victims (Army), Ending Violence Against Women International, and 

the National Crime Victims Law Institute. In addition to outside training, in June 2017, 

the VLC Program held its second annual Training Symposium, bringing together almost 

all of the VLC and support staff from around the globe to receive instruction from 

experienced VLC within the program as well as from outside experts on topics such as 

vicarious trauma, military justice, and leadership development. Further, VLC participate 

in internal monthly training which include topics such as retaliation, federal labor and 

employment law, the Freedom of Information Act, civilian victims’ rights, and ethics.

The Navy VLC Program’s appellate practice team consists of four VLC specially 

trained by the Navy Appellate Government division. In FY17, team members attended 

the Joint Appellate Advocacy Training held at Henderson Hall in September 2017. The 

members of the appellate team are tasked with remaining current on appellate cases 

involving victims’ rights, supporting any VLC with imminent trial-level appellate issues, 

and taking on post-trial appellate cases, as necessary.

During FY17, Navy VLC provided legal support to 1,750 sexual offense victims 

(950 of whom were new clients for VLC during FY17), participated on behalf of victims 

at more than 560 military justice and administrative proceedings, and conducted 580 

outreach briefs on VLC services to approximately 30,000 personnel.

In addition, in FY17, Navy VLC provided training at the SVCC course and the 

Representing Child Victims courses, provided regular training to victim advocates, and 

attended and presented at the VLC program symposium. VLC also provided training at 

the Federal Law Enforcement Training Centers and at Sexual Assault Medical Forensic 

Examiner trainings conducted around the country and worldwide. Several VLC 

appeared before or were interviewed by the Judicial Proceedings Panel Federal 

Advisory Committee offering their insight on victim-specific issues related to the VLC 

Program.

NAVAL JUSTICE SCHOOL

Organization. NJS reports to CNLSC for administrative and operational control. 

NJS is comprised of a staff of approximately 61 officers, enlisted members, and civilians 

across all Sea Services (Navy, Marine Corps, and Coast Guard). The main NJS facility 

is located in Newport, Rhode Island, and there are two detachments located in San 

Diego, California, and Norfolk, Virginia. A two-person branch office is located at the 

U.S. Army's Judge Advocate General's Legal Center and School in Charlottesville, 

Virginia. Seventeen reserve personnel (15 officers and two enlisted) supported NJS in 
80

FY17. Training curriculum for Military Justice is controlled by the Military Justice CrossFunctional Team (CFT), consisting of 15 experienced Judge Advocate and paralegal 

instructors and led by an O-4 MJLCT-designated "Specialist I."

NJS has a GS-15 Educational Program Specialist who provides expert advice on 

the science of education, assists in the formulation of the school’s educational and 

training curriculum, and advises leadership and mentors instructors. She has 

established guidelines for curriculum planning, reviewed plans and instructional 

programs, and continues to assess and ensure that NJS is meeting Fleet training 

needs. 

Mission. The mission of NJS is to oversee and provide formal training to Sea 

Service judge advocates and paralegals to ensure their career-long professional 

development and readiness to deliver quality legal services to the Fleet. NJS also trains 

commanders and senior officers in the practical aspects of military law to enable them 

to perform their command and staff duties and to administer military justice.

In FY17, NJS provided instruction to more than 3,600 students worldwide at 

more than 1,450 in-resident courses ranging in length from one day to 13 weeks. NJS 

instructors also provided off-site teaching in military justice, administrative law, and 

operational law to commands on board Naval Station Newport, including the Naval War 

College, Naval Leadership and Ethics Center, the Defense Institute of International 

Legal Studies, Officer Development School, Senior Enlisted Academy, Surface Warfare 

Officers School, Officer Candidate School, and Limited Duty/Chief Warrant Officer 

Indoctrination School.

NJS has eight “core” courses that include training in military justice:

1. Basic Lawyer Course. This ten-week course, offered three times annually, 

provides accession training for all judge advocates in the Navy, Marine Corps, and 

Coast Guard. The course includes training in military justice and court-martial 

advocacy, as well as training in legal assistance, administrative law, standards of 

conduct, and operational law. Teaching methods include lecture, seminar, and practical

exercises. Upon graduation, judge advocates are certified per Article 27(b), UCMJ. In 

FY17, NJS graduated 150 students.

2. Legalman Accession Course. This 11-week course, offered three times in 

FY17, trains Navy enlisted personnel selected for conversion to the Legalman rating. 

The course provides ten ABA-approved credits towards a paralegal degree or certificate 

in partnership with an accredited educational service provider. In addition to training in 

military justice, court reporting, administrative investigations, and administrative 

separations, the course includes four paralegal studies courses taught by NJS officer 

instructors: Ethics, Legal Research and Writing I, Introduction to Law, and Emerging 

Legal Technologies. The five weeks of military-specific training within the course 

double as the reserve Legalman Accession Course. In FY17, there were 38 active duty 

graduates and 10 reservists.
81

3. Basic Legal Services Specialist Course. This 11-week course, offered three 

times annually, provides accession-level training to junior enlisted Marines seeking the 

Military Occupational Specialty (MOS) of Marine Corps Legal Services Specialist. 

Curriculum consists of training in military justice, post-trial review, and legal 

administration. In FY17 112 Marines completed this program. 

4. Legal Services Court Reporter Course. This 13-week course, offered twice 

annually, provides court reporter training to Marine Legal Services Specialists, grades 

E-3 to E-7, seeking the MOS of Marine Corps Legal Services Court Reporter. The 

curriculum consists of court reporter training in closed-mask capture of legal 

proceedings at 225 words per minute, court-reporting grammar and punctuation, 

speech–recognition technology, digital recording software, and the production of 

verbatim and summarized courts-martial records of proceedings. In FY17, 28 Marines 

graduated from this course.

5. Senior Officer Course in Military Justice and

Civil Law (SOC). This scenario-based three-day course is designed for commanding 

officers, executive officers, and officers-in-charge and is open to other officers in grades 

O-4 and above with NJS approval. The SOC trains officers in the execution of the legal 

responsibilities of command with instruction in military justice (including sexual assault 

case disposition), administrative law, and civil law. In FY17, NJS provided 24 offerings 

of the SOC in Newport, San Diego, Norfolk, Camp Lejeune, Parris Island, Quantico, 

Pensacola, Okinawa, and Cherry Point. Per NAVADMIN 302/12, this course is 

mandatory for O-6s prior to assuming command. In FY17, 1,091 officers graduated 

from this program.

6. Legal Officer Course (LOC). This three-week course prepares non-lawyer 

Legal Officers to perform a host of military law functions in commands not large enough 

to warrant assignment of a dedicated judge advocate. In FY17, NJS provided 16 

offerings of the LOC in San Diego and Norfolk to a total of 600 students. 

7. Legal Clerk Course (LCC). Legal Clerks are typically assigned to assist nonlawyer Legal Officers within a command as a collateral duty. This two-week course 

provides training in the preparation of legal forms and reports, service record entries, 

non-judicial punishment, and courts-martial procedures. In FY17, NJS provided 17 

offerings of the LCC in San Diego and Norfolk with a total of 442 students graduating.

8. Senior Enlisted Leadership Course in Military Justice and Civil Law (SELC). 

This three-day course provides senior enlisted leaders of all Services training focusing 

on military justice matters. In FY17, NJS provided 9 offerings of the SELC in San Diego 

and Norfolk and had a total of 424 graduates.

In addition to the “core” courses, NJS provided 24 resident specialty courses, 

many of which are pre-approved for continuing legal education (CLE) credit from state 

bar associations such as the Prosecuting Special Victim’s Cases (PSVC) course and 
82

Defending Sexual Assault cases (DSAC) course which offer specialized training to 

prosecutors and defense counsel litigating complex sexual assault, child abuse, and 

domestic violence cases.. In FY17, these resident courses reached more than 654 

legal professionals.

NJS also continues to provide Basic and Advanced SJA Courses. The SJA 

Courses incorporate military justice training topics relevant to SJAs including search 

and seizure, investigations, charging, preferral, convening courts, referral, Victim 

Witness Assistance Program, Sexual Assault Initial Disposition Authority, and post-trial 

processing.

The Legalman Paralegal Education Program (LPEP) is a government-funded 

education program leading to an Associates of Science degree in Paralegal Studies. 

This program, established in 2010, is mandatory for all Legalmen (NOS B630) to meet 

minimum occupational standards for the Legalman rating. Following completion of the 

Legalman Accession course, students normally complete a semester of in-resident 

courses with an accredited educational service provider before checking into their first 

permanent duty station as a Legalman. Upon checking in, they normally participate in 

distance learning with the accredited educational service provider until completing the 

degree requirements. In FY17, 38 students attended LPEP as in-resident students, and 

more than 50 students were enrolled in the distance learning option.

NJS also offers a wide variety of online training and education courses through 

the Blackboard learning management system and NJS SharePoint portal. These 

systems are accessible 24/7 and offer on-demand training with opportunities for 

feedback and instructor interaction. The online courses cover specific topics on large 

practice areas such as post-trial processing, ethics, and law of the sea. Additionally, 

NJS offers in collaboration with Navy and Marine Corps Trial Counsel Assistance 

Programs (TCAP) the Trial Counsel Orientation (TCO) online course, which is an entrylevel training for first time trial counsel. Teaching tools include assigned readings, 

recorded videos, discussion boards, practical assignments, and knowledge checks. In 

FY17 NJS Online provided an estimated 5,000 hours of instruction to more than 1,000 

students worldwide.

NJS publishes an online course catalog, the USN/USMC Commander’s Quick 

Reference Handbook for Legal Issues, and various study guides in support of its 

academic programs.

Through the Interservice Legal Education Review Committee, Commanding 

Officer, NJS, the Dean of Students for the U.S. Army’s Judge Advocate General’s Legal 

Center and School, and the Commandant, Air Force Judge Advocate General’s School 

meet annually to discuss new initiatives and opportunities for cross-training.
83

NAVY ACTIVITIES

1. Military Justice Litigation Career Track (MJLCT)

In 2007, the JAG Corps established the MJLCT to improve the overall quality of 

Navy court-martial litigation. The MJLCT is a career track for judge advocates with 

demonstrated military justice knowledge and advocacy skills. Entry into the MJLCT is 

through a competitive board. The track combines continued training, education, and 

courtroom experience with oversight by and access to senior, seasoned litigation 

mentors to help judge advocates develop the skills needed to become preeminent trial 

lawyers and judges. Military Justice Litigation Qualified (MJLQ) officers are detailed to 

lead trial departments at each of our nine RLSOs and defense departments at our four 

DSOs. These officers provide proven experience in the courtroom, personally 

conducting, adjudicating, or overseeing litigation in sexual assault and other complex 

cases.

At the close of FY17, there were 79 Navy MJLCT officers. These officers 

generally fill billets specifically designated as career track assignments, as trial counsel, 

defense counsel, appellate counsel, and trial and appellate judges. Additionally, MJLCT 

officers serve in a number of other assignments that benefit from their military justice 

expertise, including billets at the Office of Military Commissions (OMC), on board 

aircraft carriers, and as Region Staff Judge Advocate. Two MJLCT officers are 

currently attending post-graduate school to obtain LL.M. degrees in Trial Advocacy, and 

one is assigned as a legislative fellow on a U.S. Senator’s staff. 

The promotion rate for MJLCT officers continues to be closely monitored. The 

promotion selection boards in FY17 selected MJLCT officers at an equivalent, or higher, 

rate to the overall in-zone selection rate. The O-6 promotion selection board selected 

two of three MJLCT officers in-zone and one above zone, the O-5 selection board 

selected six of seven MJLCT officers in zone and two above zone, and the O-4 

selection board selected all seven MJLCT officers in-zone.

Designations within the MJLCT are as follows:

a. SPECIALIST I. This is the entry point for the MJLCT. A judge advocate may 

be qualified as SPECIALIST I after demonstrating military justice litigation proficiency 

and MJLCT potential. Candidates are normally eligible for SPECIALIST I after their 

fourth year of active duty.

b. SPECIALIST II. Following SPECIALIST I qualification, a judge advocate may 

qualify as SPECIALIST II after obtaining additional qualitative and quantitative military 

justice litigation experience as well as professional development as a naval officer. 

Candidates are normally eligible for SPECIALIST II after five years as SPECIALIST I.

c. EXPERT. Following SPECIALIST II qualification, a judge advocate may 

qualify as EXPERT after obtaining significant additional military justice litigation 
84

experience as well as demonstrated leadership of junior judge advocates. For this 

reason, EXPERT is ordinarily reserved for those judge advocates who are eligible for 

assignment to the most senior MJLCT positions. Candidates are normally eligible for 

EXPERT after five years as SPECIALIST II.

SPECIALIST II and EXPERT MJLQ are community management tools to guide 

the detailing, training, and professional development needs of MJLCT judge advocates 

and to ensure the community maintains its ability to execute this core function across 

the community billet structure. JAG Corps leadership seeks to provide all MJLCT judge 

advocates with training and duty assignment opportunities that facilitate their 

professional development within the MJLCT, the JAG Corps, and the Navy.

As judge advocates seek MJLCT advancement, they are required to demonstrate 

increased courtroom experience, continued growth in litigation leadership, and 

familiarity with the broader mission of the Navy. MJLCT judge advocates are 

encouraged to explore non-litigation assignments to enhance their professional 

development and their leadership skills and to contribute to the overall mission of the 

JAG Corps and the Navy. 

2. Sexual Assault Prevention and Response (SAPR) Initiatives

In FY17, the Navy continued to execute a multifaceted approach to address 

sexual assault awareness and training, prevention, victim response, investigation, and 

accountability. Navy judge advocates were integral in all levels of the SAPR program, 

including reviewing numerous SAPR training products intended for Sailors, SAPR victim 

advocates (SAPR VAs), and Sexual Assault Response Coordinators (SARCs). OJAG 

Code 20 (Criminal Law Division) works hand-in-hand with Naval Education and Training 

Command (NETC), Department of the Navy Sexual Assault Prevention Response 

Office (DON SAPRO) and N17 to review these products. For example, in NETC, the 

Criminal Law Division provided in-depth review of an update to the General Military 

Training "Full Speed Ahead." Full Speed Ahead builds on the foundational elements of 

personal accountability, peer engagement and intervention, values-based decisionmaking, resilience, and leadership articulated in prior trainings. The Criminal Law 

Division assisted in the development and review of a module on social media 

misconduct, specifically the wrongful distribution of intimate images. 

NJS provides SAPR training in each of its JAG officer accessions courses 

consisting of in-depth instruction on Article 120, UCMJ, as well as detailed exploration 

of the roles and responsibilities of SAPR stakeholders, the meaning of current statistics, 

the mechanics of sexual assault reporting systems, and the role and responsibilities of 

the Sexual Assault Initial Disposition Authority. In addition, NJS instructs Sea Service 

legal professionals (e.g., judge advocates, Navy paralegals, Marine Corps Legal 

Specialists, and Coast Guard Legal Technicians) on all aspects of sexual assault 

disciplinary proceedings, including the role of VLC and the Navy’s commitment to 

facilitating victim participation in the criminal justice system.

Navy VLC regularly support command training events and base programs 
85

focusing on sexual assault issues to ensure Sailors are aware of legal resources 

available to sexual assault victims. Moreover, Navy VLC routinely provide training to 

investigators at the Federal Law Enforcement Training Centers (FLETC) and 

information regarding victims’ rights and program services through base and Armed 

Forces newspaper articles and radio programs, as well as through briefings to first 

responders such as healthcare personnel, SAPR VAs, SARCs, and law enforcement 

personnel.

The TCAP continues to provide training as part of the NCIS Advanced Adult 

Sexual Assault Investigations Training Program, a course for investigators and 

prosecutors that is focused on improving multi-disciplinary coordination of sexual 

assault investigations. In practice, this translates to early and regular coordination 

between Regional Senior Trial Counsel and NCIS on investigation and prosecution of 

cases. TCAP also continues to train and advise trial counsel, paralegals, and 

administrative support personnel on sexual assault prosecutions.

3. Additional Information

a. Compliance With Processing Time Goals

In FY17, no Navy case was dismissed on speedy trial grounds. Four Navy cases 

exceeded 120 days from sentencing to CA’s action (Moreno 1 guideline). Delay in 

these cases was primarily due to voluminous records of trial although one was delayed 

due to a defense request for an extension in submitting matters in clemency and 

another for a defense post-trial Article 39(a), UCMJ session. No Navy cases exceeded 

the 30 day window from the date of CA’s action to docketing at NMCCA (Moreno 2 

guideline). One NMCCA case has exceeded the Moreno 3 guideline of 18 months from 

docketing to decision.

b. Measures Implemented by the Navy to Ensure the Ability of Judge Advocates 

to Competently Participate as Trial and Defense Counsel in, and Preside as Military 

Judges Over, Capital Cases, National Security Cases, Sexual Assault Cases, and 

Proceedings of Military Commissions

Litigation Expertise

As noted in Paragraph 1 above, the Navy established the MJLCT in 2007 to 

ensure that the Navy develops and retains experienced litigators to participate as trial 

counsel, defense counsel, and military judges in the Navy’s increasingly complex 

docket. Our MJLCT attorneys spend significant portions of their careers in various 

military justice assignments, to include prosecution, defense, and judicial assignments. 

Upon promotion to Commander, MJLCT officers frequently serve as military and 

appellate judges, giving them a unique perspective on how to formulate and articulate 

well-reasoned arguments when advising junior litigators. Likewise, having served as 

both trial and defense attorneys, our career litigators have a better understanding of the 

strengths and weaknesses of their cases. They are also detailed to assignments 
86

outside the career track, such as sea duty onboard aircraft carriers and SJA billets, to 

develop them as naval officers and to broaden their Fleet perspective. As a result, our 

litigators understand the importance of each role in our military justice system—insight 

that serves our community well as these attorneys move into senior litigation positions 

and provide training and mentorship to junior officers.

MJLCT officers have reached the highest levels of leadership within the JAG 

Corps, to include positions as commanding officers, executive officers, division 

directors, and Assistant Judge Advocate General. MJLCT officers are immersed in the 

daily prosecution, defense, and judicial hearing of cases throughout the Service and at 

the Office of Military Commissions. The goal of the MJLCT program is to improve the 

effectiveness and efficiency of the court-martial process by allowing judge advocates to 

serve repeated tours in litigation-intensive billets. This allows the Navy to develop senior 

MJLCT officers with extensive contested case experience in all three areas of 

practice—prosecution, defense, and the judiciary.

The career track initiative has positioned the Navy well to provide the effective 

prosecution, defense, and judicial hearing of the cases including national security 

cases, sexual assault cases, cases before the military commissions, and capital cases. 

Among Navy Commanders and Captains in the career track, the Navy has developed a 

cadre of officers with experience litigating national security/classified information cases. 

Similarly, we have numerous senior and mid-grade officers with experience on military 

commissions as trial counsel, defense counsel, trial judges or appellate judges. All 

MJLCT officers have robust experience in a wide range of sexual assault related cases. 

Each area of practice (prosecution, defense, and judiciary) currently includes MJLCT 

members who have significant experience and expertise in sexual assault cases, 

national security cases, and commissions cases, and every practice area has ready 

access to these experts for support if the need arises. There are no MJLCT officers 

with significant capital experience, as the Navy has tried no capital cases in recent 

decades. Several of the MJLCT officers have served at the military commissions as 

trial or defense counsel on the two referred capital cases, but both cases remain in 

pretrial litigation. Currently, the Services are not required to provide learned counsel (as 

defined by the ABA) in capital cases. Given the quality of senior, experienced litigators 

that the Navy has developed over the past ten years, we are confident that the Navy is 

well-positioned to prosecute, defend, and adjudge a capital case if one were to be 

referred. Given the circumstances of a particular case, the Navy may pursue additional 

defense counsel through recall of reserve officers or contracting for civilian counsel who 

meet the ABA standard of learned counsel.

Training and Education

NJS provides judge advocates with tiered military justice instruction from active 

component judge advocates supplemented by reserve judge advocates employed as 

local, state, and federal prosecutors. Training is centrally-managed under the oversight 

of a Litigation Training Coordination Council (LTCC) comprised of two Assistant Judge 

Advocates General, military justice experts from the prosecution and defense, policy 
87

advisors, instructors, and senior judges. Course requirements are established by a 

board of advisors from the Navy, Marine Corps, and Coast Guard who have extensive 

experience in litigation and training.

In addition to basic and intermediate level trial advocacy courses, NJS, Code 20, 

TCAP, and DCAP coordinate specialized training for Navy trial and defense counsel on 

litigating complex sexual assault crimes using resources such as the National District 

Attorneys Association; the National Institute of Justice (a DoJ agency established to 

help foster science-based criminal justice practice); Aequitas: The Prosecutor's 

Resource on Violence Against Women (a DoJ funded resource created to provide 

prosecutors with support, training, mentorship, and resources to improve the quality of 

justice in sexual violence cases); the Center for American and International Law; and 

the National Criminal Defense College.

Every year the JAG Corps sends mid-level career litigators to civilian postgraduate schools to earn a Master of Laws (LL.M.) in litigation. Of the 79 career

litigators in the MJLCT at the end of FY17 approximately one-third have earned an 

LL.M. in litigation.

Trial Counsel

Senior Trial Counsel (STC) (O-4 or above) are the nucleus of the Navy's SVIP 

capability and are prepared to prosecute complex cases including capital and national 

security cases. Each STC is hand-selected by the Judge Advocate General to fill one of 

nine STC billets. All STC are MJLCT officers. Upon reporting, all STC complete a oneweek special victims investigation course and participate in additional specialized 

training such as litigating complex cases, TCAP targeted mobile training, and online 

special victims offenses or litigation training. All STC regularly report to TCAP on 

pending felony-level investigations and prosecutions. Additionally, members of TCAP 

may also be detailed to high-profile and complex cases as necessary.

Sexual assault cases are typically detailed to "core attorneys" assigned to each 

RLSO. A RLSO core attorney is a judge advocate (O-3 or above), certified to practice 

by the JAG in accordance with Article 27b, UCMJ, and is a member in good standing 

with a State bar, who has completed a two-year tour as a First Tour Judge Advocate 

prior to assuming the duties of a prosecutor. All trial counsel are supervised by an STC, 

an Executive Officer (O-5 judge advocate), and a Commanding Officer (O-6 judge 

advocate). Detailing of counsel is within the discretion of the RLSO Commanding 

Officer who takes into consideration such matters as competence, experience, training, 

existing caseload, and availability of counsel, as well as case specifics. A Commanding 

Officer may detail a second, more experienced counsel to a particular case to provide 

the opportunity for practical mentoring. Additionally, uniformed members of TCAP may 

also be detailed to cases. All trial counsel have access to 24/7 support from TCAP.

Trial counsel receive military commission training from OMC when assigned to 

that office.
88

Defense Counsel

Navy defense counsel attend NJS's Basic Lawyer course, Basic Trial Advocacy 

training, and Defense Counsel Orientation prior to or shortly after arriving at a DSO to 

serve as a core defense counsel. Within their first year as a core counsel, defense 

counsel attend Defending Sexual Assault Cases, the week-long course designed to 

provide judge advocates specific training on how to handle the legal issues and 

complexities involved in a sexual assault case. The course includes both practical 

exercises and lectures from experienced civilian and military defense attorneys and 

experts. The course allows for extensive discussion of existing case issues and 

students frequently use this time to consult with peers and faculty. Defense counsel 

also may attend Intermediate Trial Advocacy and Litigating Complex Cases trainings.

The Defense Counsel Assistance Program (DCAP) sends Defense Mobile 

Training Teams to each DSO headquarters and major detachment at least once each 

year. During these visits, DCAP works closely with the command and individual 

counsel with a focus on practical issues in defense work, including trial advocacy 

training based on current or recent case scenarios.

Resources permitting, Navy defense counsel have attended specialized 

advanced legal seminars. For instance, the Navy sends defense counsel to the National 

Child Abuse Defense and Resource Center's International Conference, National 

Association of Criminal Defense Lawyers' Zealous Advocacy in Sexual Assault, and 

Child Victim Cases course to ensure that trained counsel are available for child abuse 

cases. Advanced defense advocacy courses from the National Criminal Defense 

College and the Bronx Defenders are also available to Navy defense counsel.

Sexual assault cases are typically detailed to "core attorneys" assigned to a 

DSO. A DSO core attorney is a judge advocate (O-3 or above), certified to practice by 

the JAG in accordance with Article 27b, UCMJ, and a member in good standing with a 

state bar, who has completed at least one full tour prior to assuming the duties of a 

defense counsel. Detailing of counsel is within the discretion of the DSO Commanding 

Officer (O-6 judge advocate), who takes into consideration such matters as 

competence, experience, training, existing caseload and availability of counsel, and 

case specifics. A Commanding Officer may detail a second, more experienced counsel 

to a particular case to provide the opportunity for practical mentoring. Additionally, 

uniformed members of DCAP may also be detailed to cases.

Defense counsel receive military commission training from the Office of the 

Military Commissions when assigned to that office.

Military Judges

The required courses for a trial judge’s judicial education begin with the threeweek Military Judge Course, provided by the U.S. Army’s Judge Advocate General’s 
89

Legal Center and School in Charlottesville, Virginia. This course meets the 

requirements to be JAG-certified as a military trial judge by providing incoming military 

judges the fundamentals of judicial practice. The course covers court-martial process, 

evidence, procedure, Constitutional rights, judicial problem solving, and judicial 

methodology. It includes demonstrations and practical exercises. Appellate judges 

attend the same school for certification.

All trial-level military judges, active and reserve, attend the Joint Military Judges 

Annual Training (JMJAT). JMJAT is the venue for continuing education for all trial 

judges and for discussing current and evolving practice issues, such as the pending 

changes under the Military Justice Act of 2016, the evolution of victims’ rights in recent 

National Defense Authorization Acts, advanced evidence, sentencing methodology, and 

judicial ethics.

Responsibility for hosting JMJAT alternates between the Navy-Marine Corps 

Trial Judiciary (NMCTJ) and the Air Force Trial Judiciary (USAFTJ). The USAFTJ 

hosted JMJAT 2017 onboard MacDill Air Force Base in Tampa, Florida in February 

2017. At MacDill, instructors from within Department of Defense (DoD) and the 

services’ trial judiciaries provided three days of training on challenging evidentiary 

issues, including presentations on new standards for ordering the production and 

disclosure of victims’ mental health records.

Additionally, the trial judiciary sends judges to the National Judicial College (NJC) 

for individual courses. The NJC is the only fully-accredited University that presents an 

average of 30 to 40 judicially-oriented courses annually. These courses serve to 

broaden judicial experiences by exposing our judges to perspectives from around the 

country. The NJC’s courses cover everything from judicial writing and advanced 

evidence to handling capital cases and general jurisdiction.

The judiciary currently includes several judges who have handled classified 

information and national security cases as litigators and as military judges, as well as 

officers with extensive experience in military commissions. Specialized training in 

classified information cases is available to judges and litigants. 

In FY17, all Navy and Marine Corps trial judges gathered for three days of 

training funded by Department of Defense Sexual Assault Prevention and Response 

Office related to issues involving special victims. Training topics included MRE 412, 

413, 414 (policy, cases, methods, and foundational requirements); M.R.E. 513 (the 

threshold for ordering production of victims’ psychotherapy records and the process for 

reviewing and protecting those records); the use of experts in child sexual assault 

cases; the role of VLC in the court-martial process; and pending changes compelled by 

the Military Justice Act of 2016.

Appellate judges also receive extensive and ongoing training. In 2011, the 

NMCCA instituted a two-day, in-house annual course to provide initial training to newly 

assigned judges and continuing education for active and reserve appellate judges. The 
90

course focuses on court processes, opinion writing, ethics, appellate burdens of proof 

and persuasion, and advanced evidence. Appellate judges also attend the annual 

William S. Fulton, Jr. Military Appellate Judges’ Training Conference, which is an interservice, one-day event with the host rotating among the services. In 2017, the Air Force 

Court of Criminal Appeals hosted the conference, and expanded the conference to two 

days, which was widely well-received. Finally, two appellate judges attended the New 

Appellate Judges Seminar hosted by New York University School of Law.

c. The Independent Views of The Judge Advocate General on the Sufficiency of 

Resources Available, Including Total Workforce, Funding, Training, and Officer and 

Enlisted Grade Structure, to Capably Perform Military Justice Functions

As of the date this report was submitted, the Navy Judge Advocate General’s 

Corps, enlisted, and civilian communities were able to fulfill existing military justice and 

litigation obligations at the trial and appellate level. Trial counsel and defense counsel 

manning continues to be a challenge in light of shortages at the LT and LCDR 

paygrades due to planned billet growth. Increased accessions are projected to stabilize 

manning levels over the next three years, and Naval Legal Service Command has 

prioritized trial counsel and defense counsel billets in adjudication of planned billet gaps. 

With the passage of the Military Justice Act of 2016 (MJA 2016) and the implementation 

of changes to virtually every aspect of military justice litigation, the Navy faces a further 

challenge with respect to the potential manpower impact of changes in the military 

justice mission. Many of the changes in MJA 2016 redistribute the workload between 

communities of practice. For example, changes to post-trial processing shift significant 

review burdens from convening authorities to judges and from the trial level to the 

appellate activities. Burden shifts such as these have the potential to significantly 

impact resourcing and manning within litigation stakeholders, but the scope of the 

impact cannot be fully known until this new and fundamentally different approach goes 

into effect. The Litigation Training and Coordination Council (LTCC), comprised of 

military justice leadership from the Navy, Coast Guard, and Marine Corps, are 

anticipating these impacts, and are monitoring the needs of the Services to ensure that 

appropriate changes and accommodations are made to maintain excellence in our 

litigation practice.

The sufficiency of long-term resourcing will depend on the impact of Military 

Justice Act 2016 (MJA 2016) in practice. However, in the short to mid-term, ensuring 

sufficient training to maintain existing qualifications,preparing to adapt to MJA 2016 

training, and ensuring adequate manning for trial and defense counsel represent the 

Navy’s most critical challenges. With respect to training, the Navy seeks to leverage 

existing and emerging technologies to supplement and complete training requirements, 

as with the online module NJS is developing for baseline MJA 2016 training for all judge 

advocates. However, the anticipated loss of approximately one million dollars in Sexual 

Assault Prevention and Response Office (SAPRO) funds dedicated to training 

opportunities for litigators dealing with sexual assault cases and special victims has the 

potential to derail not only today’s litigation training, but MJA 2016 training as well. JAG 

will continue to work with the Navy to ensure that the JAG Corps can meet these 
91

challenges as they emerge, including maintaining sufficient manning in all military 

justice practice areas to fulfill mission objectives. 

CONCLUSION

In FY17, the Navy continued to focus on providing the best military justice advice 

and representation to Service members, commanders, and the Fleet. Although the 

court-martial caseload has remained steady, the Navy is looking towards an increased 

trial and appellate case load under MJA 2016. The complexity and visibility of the 

modern docket demands the best from our attorneys, paralegals, and support 

personnel. The as-of-yet unexplored legal terrain under MJA 2016 will challenge every 

member of the Navy JAG Corps. 

Through efforts such as the continued development and refinement of our 

Military Justice Litigation Career Track, our highest level oversight of training with the 

Litigation Training and Coordination Council, and of the military justice system in 

practice by the Military Justice Oversight Council, the Navy has proven its commitment 

to excellence in this critical mission. Recognizing the magnitude of the changes coming 

to the military justice system with the implementation of MJA 2016, we are confidently 

poised to continue to prioritize military justice in the future.

MARINE CORPS ACTIVITIES

The Marine Corps will submit a separate CAAF report for FY17.
92

Marine Corps Activities

Staff Judge Advocate to the Commandant of the Marine Corps
93

U.S. MARINE CORPS ANNUAL MILITARY JUSTICE REPORT FOR FISCAL YEAR 2017

TABLE OF CONTENTS

I. INTRODUCTION............................................................................................................. 94

II. MILITARY JUSTICE BY THE NUMBERS – TRENDS & ANALYSIS ........................................ 97

III. POST-TRIAL REVIEW AND APPELLATE DECISIONS ........................................................ 97

A. Processing Time Goals .......................................................................97

B. Reversal of Convictions for Denial of Speedy Post-Trial Review, UCI, 

or Other Administrative Deficiencies and Cases in Which Provisions 

Were Held Unconstitutional.................................................................98

IV. MILITARY JUSTICE PRACTITIONERS, TRAINING AND RESOURCES................................... 98

A. Trial Counsel.......................................................................................98

B. Defense Services Organization...........................................................99

C. Victims’ Legal Counsel Organization ...............................................100

D. Training Standards and Resources...................................................102

V. VIEWS ON THE SUFFICIENCY OF RESOURCES .............................................................. 103

VI. CONCLUSION........................................................................................................... 104
94

I. INTRODUCTION

The Marine Corps military justice community—trial counsel, defense counsel, victims’ 

legal counsel, and command advice judge advocates—continues to leverage the experience 

of its senior leaders and highly qualified experts (HQEs), combined with the strength of its 

organization and training programs, to accomplish the military justice mission. Highlights of 

these efforts include: continued improvements in the structured approach of case analysis 

and assignment of counsel; standardizing practice and procedure in light of the numerous 

statutory changes to the military justice system in recent years; implementation of a 

centralized electronic process for monitoring the training, qualifications, and capabilities of 

counsel; and approval of a phased training plan to prepare the entire Marine Corps for the 

implementation of the Military Justice Act of 2016 (MJA), which itself represents a sea change 

to the Uniform Code of Military Justice (UCMJ) and the military justice system.

The Marine Corps continued to provide timely and accurate legal services to 

commanders, accused, and victims by assigning judge advocates based on the requirements 

of each individual case and a judge advocate’s knowledge, training, and experience. With the 

assistance of HQEs, our experienced senior litigators supervise, advise, and mentor junior 

counsel to ensure the highest quality of military justice practice. Further, the Marine Corps 

has continued its practice of assigning experienced senior judge advocates to provide 

command advice to convening authorities. These efforts are supported by the Legal Service 

Support Sections (LSSSs) in the National Capital, East, West, and Pacific regions. The 

LSSSs have become regional centers of excellence where senior uniformed counsel, highly 

qualified civilian experts, and support staff combined with junior counsel to create effective 

litigation and advocacy teams.

Ongoing efforts to standardize practice in light of statutory and other changes include 

the release of Marine Corps Bulletin 5800 (MCBUL 5800). Among other things, MCBUL 5800 

provides the Staff Judge Advocate to the Commandant’s (SJA to CMC’s) direction and 

guidance on the administration of military justice, specifies counsel qualifications for certain 

case types, and eligibility for and the scope of representation of the Victims’ Legal Counsel 

Organization. MCBUL 5800 will ensure the standardization of military justice practice within 
95

the Marine Corps and allow its judge advocates to keep pace with recent legislative changes. 

However, the scope of past changes pales in comparison to the MJA, which contains the 

most significant statutory reforms to the military justice system since the establishment of the 

UCMJ over sixty years ago. 

To implement these changes to the UCMJ the Marine Corps, along with its service 

counterparts on the Joint Services Committee on Military Justice, drafted an entirely new 

Manual for Courts-Martial (MCM) for approval by the President. Additionally, the Marine 

Corps has undertaken a review of its current service level policies to ensure a smooth 

transition once the changes to the UCMJ go into effect. That review remains a core 

component of the phased concept of operations supporting transition to practice once the 

MJA goes into effect.

Training to, and assessing the impact of, the MJA on the Marine Corps judge advocate 

community has become the main effort for the Judge Advocate Division. In combination with 

the hundreds of changes to the MCM it precipitated, the MJA fundamentally changes the 

practice and application of military justice, from the commission of one or more of the over 20 

new offenses under the UCMJ, to report of an offense, to initiation of an investigation, and 

completion of post-trial review.

The Marine Corps will use a phased process to train the Service on the MJA changes. 

The Judge Advocate Division has developed an in-person program of instruction to train the 

Marine Corps judge advocate community on the upcoming changes and is currently on track 

to have provided live, in-person training to the entire judge advocate community by the end of 

the third quarter of calendar year 2018. Online refresher training for the community will 

become available by the fourth quarter of calendar year 2018. The second phase of training 

will be given by staff judge advocates (SJAs) to commanders and their staffs while the LSSSs 

will train the supporting elements in their regions.

To ensure a judge advocate community fully prepared to implement the MJA on 

January 1, 2019, the Marine Corps has begun a complete review of its military justice 
96

practices at all stages of the process. It is assessing whether to implement a military 

magistrate program to accommodate a likely increase in demand for resources from the trial 

judiciary once military judges have authority to hold pre-referral proceedings and convening 

authorities may refer charges to a judge alone special court-martial.

The Marine Corps is also reviewing its military justice forms and templates to ensure 

they adhere to the new requirements of the MJA. Such review includes whether to 

recommend an update to DD Form 457 “Preliminary Hearing Officer’s Report” to memorialize 

the rights that a preliminary hearing officer must advise an accused and a victim of during the 

proceeding. Also under consideration is whether DD Form 458 "Charge Sheet" should 

incorporate a method for documenting that a convening authority has consulted with a judge 

advocate before referring charges to a special court-martial. Other forms, the Marine Corps 

must discard, such as NAVMC 11911 “Report of Results of Trial,” which will be replaced by a 

new form entitled “Statement of Trial Results.” Finally, the Marine Corps is working with its 

counterparts in the Navy and Coast Guard to make recommendations for a new model plea 

agreement to replace the model pre-trial agreement that currently exists today.

In addition to preparing for the upcoming MJA changes, the Marine Corps supported 

numerous formal efforts to evaluate and recommend changes to the military justice system in 

Fiscal Year 2017 (FY17). The Marine Corps worked closely with the Judicial Proceedings 

Since Fiscal Year 2012 Amendments Panel (JPP) as it completed its three-year analysis of 

adult sexual assault cases and related offenses within the Armed Forces. The Service 

received the JPP final report and is in the process of reviewing its 63 recommendations, 

some of which the Services have implemented already. This fiscal year also saw the 

establishment of the Defense Advisory Committee on Investigating, Prosecuting, and 

Defending Sexual Assault in the Armed Forces (DAC-IPAD). The DAC-IPAD advises the 

Secretary of Defense on the investigation, prosecution, and defense of sexual assault cases. 

Just as with the JPP, the Marine Corps has provided a Service representative to the DACIPAD to assist the committee in carrying out its mission.
97

II. MILITARY JUSTICE BY THE NUMBERS

The Marine Corps litigated 131 general 

courts-martial and 172 special courts-martial to 

findings in FY17. The percentage of contested 

cases in FY17 was consistent with the previous 

year, while the percentage of contested cases 

during FY16 – FY17 remained at least 15% lower 

than FY13 – FY15 (see Figure A).

The percentage of contested to uncontested 

special courts-martial followed that trend, with 

contested cases representing a similar percentage of 

cases overall during FY16 – FY17, during which a 

smaller percentage of cases were contested to 

uncontested than during FY13 – FY15 (see Figure B).

III. POST-TRIAL REVIEW AND APPELLATE DECISIONS

Marine Corps compliance with post-trial time processing requirements is greatly 

enabled through mandatory use of the Case Management System (CMS) and other case 

tracking mechanisms used by Marine judge advocates and legal services specialists. The 

Marine Corps had no convictions reversed because of a denial of the right to speedy post-trial 

review, nor was any case otherwise remitted due to loss of records of trial.

A. Processing Time Goals

The Marine Corps had 475 general, special, and summary courts-martial that 

warranted post-trial review in FY17. For cases warranting appellate review, the Marine Corps 

averaged 82 days from the date of trial to convening authority’s action (CAA), 13 days faster 

than the average during FY16 (see Figure C). The Marine Corps averaged 21 days from 

44% 45%

40% 43%

31% 29%

0%

20%

40%

60%

FY12 FY13 FY14 FY15 FY16 FY17

Figure A. Percentage GCMs Contested FY11 – FY17

Figure B. Percentage SPCMs Contested FY12 – FY17
98

CAA to docketing of the case with the Navy-Marine Corps Court of Criminal Appeals. 

B. Reversal of Convictions for 

Denial of Speedy Post-Trial Review, UCI, 

or Other Administrative Deficiencies and 

Cases in Which Provisions Were Held 

Unconstitutional

The Marine Corps had no case during 

FY17 where a court found a provision of the 

UCMJ unconstitutional. No court reversed a 

general or special court-martial conviction for violation of the right to a speedy trial, a violation 

of timely post-trial review, or because of unlawful command influence. No court remitted a 

case for other administrative deficiencies. 

IV. MILITARY JUSTICE PRACTITIONERS, TRAINING AND RESOURCES

A. Trial Counsel

The Marine Corps has implemented career progression, training, experience 

requirements, and detailing criteria to ensure well-qualified judge advocates prosecute sexual 

assault cases. Our detailing criteria ensure that only those attorneys who have experience 

trying contested cases, who have demonstrated an aptitude for the courtroom, and who have 

received recommendations from supervisors may try Special Victim Investigation Prosecution 

(SVIP) cases. SVIP cases include murder, manslaughter, death or injury of an unborn child, 

rape and sexual assault, domestic violence involving grievous bodily harm, child 

pornography, or any attempts to commit those offenses. SVIP prosecutors also require 

additional sexual assault training that they normally receive by attending a Trial Counsel 

Assistance Program (TCAP) one-week annual training seminar. The Marine Corps maintains 

approximately 80 prosecutors throughout the LSSSs. At any given time, slightly more than 

50% of these are qualified to prosecute SVIP cases.

119

83 87 92 87 97 95 95 82

13

10 10 15 12

18 15 20

21

0

20

40

60

80

100

120

140

FY 09 FY 10 FY 11 FY 12 FY 13 FY 14 FY 15 FY 16 FY17

Average Days to CAA 

Average Days from CAA to Docketing 

Figure C. Post-Trial Processing Times 

FY09 – FY16
99

The Marine Corps provides trial counsel with formal training and trial preparation 

advice, in addition to the mentorship and on-the-job training offered by the Regional Trial 

Counsel and other experienced judge advocates within the LSSS. With the exception of the 

National Capital Region, each of the regional LSSSs has a civilian HQE, each selected based 

on experience and expertise with complex special victim cases. The National Capital Region 

HQE billet is temporarily vacant, though the selection and hiring process are underway. 

Marine Corps HQEs advise counsel on every SVIP case. Our HQEs collectively 

possess more than 60 years of litigation experience and participate in all areas of trial 

preparation, including collaboration on prosecutorial merits memos, preparing charging 

documents, interviewing witnesses, preparing affirmative and responsive government 

motions, identifying expert witnesses, and organizing evidence to improve case presentation 

to the members. These experts provide consistent guidance to trial counsel and ensure 

continuity throughout the Marine Corps in the disposition of sexual assault cases. HQEs also 

help retain institutional knowledge in prosecution sections that otherwise experience regular 

turnover of military personnel.

The TCAP supports trial counsel through training, sharing of resources, and the 

creation of offense-specific “playbooks.” The TCAP also sustained its recently created SVIP 

training course for trial counsel and support Marines from across the Marine Corps. The 

week-long course focused on the prosecution of sexual assault cases and included training in 

building case theory, charging under Article 120, UCMJ, general trial advocacy skills, use of 

expert witnesses, victim support, and prosecutorial ethics. A mix of experienced practitioners, 

including senior judge advocates, district attorneys, and expert witnesses who testify in 

sexual assault cases provided the instruction. To enhance community development, the 

TCAP regularly blogs on recent case law and legislative developments, results of and 

lessons-learned from recent courts-martial, and suggested forms and sample motions. The 

TCAP also sponsored the second annual Marine Corps Litigator of the Year competition in 

collaboration with faculty from a nationally recognized trial advocacy program.

B. Defense Services Organization

The Marine Corps Defense Services Organization (DSO) is dedicated to providing 
100

criminal defense services to Marines worldwide. The DSO is a global organization of more 

than 70 attorneys geographically assigned within the four regional LSSSs. A colonel (O-6) 

heads the organization as Chief Defense Counsel of the Marine Corps and Officer-in-Charge 

(OIC) of the DSO. That officer reports directly to the SJA to CMC, and exercises functional 

supervision over all DSO personnel on the SJA to CMC’s behalf. The DSO runs a Defense 

Counsel Assistance Program (DCAP), which currently has one active duty officer dedicated to 

it. In FY17, the DCAP also employed two civilian HQEs (one located in the eastern region 

and one located in the western region). The DCAP responds to queries from counsel in the 

field, and, since 2011, has aggressively sought out and sent defense counsel to training 

courses designed to ensure DSO attorneys maintain the knowledge and experience 

necessary to provide high quality representation in the most complex cases, including sexual 

assault cases. 

The DSO utilizes training at the Naval Justice School as well as civilian training events 

sponsored by organizations such as the National Association for Criminal Defense Lawyers, 

Federal Public Defenders Association, Bronx Defenders Academy, and the National Criminal 

Defense College. The DSO also provides training internally to its counsel: Senior Defense 

Counsel provide training on a monthly basis and Regional Defense Counsel provided training 

on a quarterly basis in consultation with the Marine Corps criminal defense HQEs. The DSO 

provided zealous detailed representation to 1,580 Marines and Sailors in FY17. 

C. Victims’ Legal Counsel Organization

The U.S. Marine Corps Victims' Legal Counsel Organizations (VLCO) experienced 

continued growth in size and development of practice during FY17. The VLCO is comprised 

of the same four regions (National Capital Region, Eastern Region, Western Region, and the 

Pacific Region) as the LSSSs with 17 active duty full-time VLCs (four of whom are 

supervisory Regional VLCs) and two active duty part-time auxiliary VLCs. Additionally, the 

VLCO had seven civilian paralegals and three active duty Marine legal services specialists 

during FY17. In addition to the active duty component, the VLCO had four reserve VLCs, one 

of whom is the Reserve VLC Branch Head. The four Regional VLCs and the Reserve VLC 

Branch Head are all majors (O4); all VLCs, active duty and reserve, are captains (O3). The 
101

current OIC, VLCO is an active duty lieutenant colonel (O5) recently selected for promotion to 

colonel (O6). The Deputy OIC, VLCO is a major.

The VLCO provided services to approximately 661 victims of crime during FY17. Of 

these victims, approximately 75% were victims of sexual assault, including sexual assaults 

perpetrated by an intimate partner, and approximately 25% were victims of domestic violence. 

Individual VLCs maintained an average of 25 cases at any given time. By contrast, in Fiscal 

Year 2016 (FY16) the VLCO assisted approximately 655 victims of victims: approximately 

70% were victims of sexual assault victims, 25% were victims of domestic violence, and 5% 

were victims of other crimes.

During the VLCO annual symposium in FY17, the 1-in-6 Organization provided training 

to VLCO personnel on the dynamics of unwanted or abusive sexual experiences on men. 

Additionally, in FY17, the OIC, VLCO established a new VLCO SharePoint and made 

available standardized forms for each regional office to implement in its practice.

The growth and development of VLCO parallels growth and development of 

understanding among Marine Corps commanders of the critical importance of the VLC in the 

just preparation and litigation of cases. All of the regional offices engage in outreach activities 

with commanders, staff judge advocates, victim service providers, and professional military 

education classes. The outreach efforts included providing welcome aboard briefs to new 

personnel, one-on-one briefs to incoming commanders, courses to new uniformed victim 

advocates, and instruction in conjunction with other military justice counsel. In addition to 

representation, litigation, and outreach efforts, VLCs played a critical role in the development 

and execution of MJA training across the Marine Corps.

The performance of Marine Corps VLCs is a product of their professional diligence, 

which in turn is facilitated by a careful screening, interview, and vetting process. As with 

victims’ counsel from other Services, Marine VLCs attend Special Victims’ Counsel 

certification training, the annual VLCO training symposium, local quarterly training, and have 

the opportunity to attend other military and civilian training courses throughout the year.
102

D. Training Standards and Resources

In addition to the training offered by Regional Trial/Defense/Victims’ Legal Counsel and 

Senior Trial/Defense Counsel at the local level, Marine Corps trial, defense, and victims’ legal 

counsel all had nationally recognized training available to them in FY17. Every Marine 

assigned to a litigation billet was able to attend at least one of the following courses: 

Intermediate Trial Advocacy, Post-Trial Processing, Court Reporter Course, Basic Trial 

Advocacy, Military Judges Course, Advanced Trial Advocacy Course; Special Victims’ 

Counsel Course, Legal Service Specialists - Military Justice Course, Defense Counsel 

Orientation, Cross Examination, Law Office Manager Course, Classified Info Litigation, 

Paralegal Litigation Support, Prosecuting Special Victims Cases, Defense Counsel 

Orientation, or the Child Advocacy Course. In these courses, the focus of training included 

working with victims, trial advocacy, digital exploitation of children, child abuse, gathering and 

analyzing evidence, and partnering with victim advocates and NCIS special agents in 

investigating and prosecuting special victim cases. A variety of institutions sponsored these 

courses, including: the Naval Justice School, the National District Attorney’s Association, the 

U.S. Department of Justice, the National Advocacy Center, the Federal Law Enforcement 

Training Center, and the Army and Air Force JAG schools. Resources for counsel engaged 

in other complex litigation were also available both inside and outside the classroom. For 

example, the Navy National Security Litigation Division (OJAG Code 30) provides 

individualized training and advice to all trial counsel prosecuting national security cases.

The Marine Corps also continued its partnership with the Office for Victims of Crime 

(OVC) at the U.S. Department of Justice, which has provided valuable financial support and 

advice on emerging laws and trends in the area of victims’ rights. In FY16, the Marine Corps 

formed a new interagency agreement with OVC to provide $40,000 per year from FY16 –

FY19. This funding contributes to ongoing Marine Corps efforts to conduct training relating to 

victims’ rights and victim assistance. In FY17, the Marine Corps used OVC funding to train 

56 Victim-Witness Liaison Officers (VWLO) and Victim-Witness Assistance Coordinators at its 

Victim Witness Assistance Program (VWAP) Annual Training. This training taught VWAP 

officials their duties, helped them understand the rights and needs of victims and witnesses, 
103

and prepared them to assist commanders as they fulfill their VWAP responsibilities 

throughout the military justice process. This VWAP training has equipped VWLOs to work in 

conjunction with investigators, trial counsel, and other SVIP capability members who interact 

with and support crime victims.

V. VIEWS ON THE SUFFICIENCY OF RESOURCES

Marine Corps tactical litigators have operated at the strategic level for over a decade. 

Within the Marine Corps judge advocate community, the reality that local cases may garner 

national attention results in two critical considerations related to personnel resources: (1) 

retention of our most qualified judge advocates and legal service specialists; and (2) 

producing judge advocates with specialized education in criminal law, primarily through 

pursuit of the Master of Law degrees (LL.M.).

In an effort to retain our best judge advocates, Judge Advocate Division is working with 

Marine Corps Manpower and Reserve Affairs to resume the Law School Education Debt 

Subsidy (LSEDS) program. The program gives money to qualified judge advocates to offset 

significant law school debt that officers in other military occupational specialties do not share 

and helps first-tour judge advocates afford to remain on active duty. The Marine Corps most 

recently implemented the LSEDS program in Fiscal Year 2014. The program utilized a board 

selection process to select the ten best and most fully qualified judge advocates on active 

duty. Continued funding of the LSEDS program assists judge advocate community leaders in 

the essential areas of talent management and recruiting and retaining our best and brightest 

against the backdrop of the ever-increasing challenges of military law.

For those judge advocates who remain on active duty, an LL.M. in criminal law 

provides those judge advocates selected for an advanced degree specialized understanding 

in technical and constitutional areas of criminal law and the UCMJ. Judge advocates with this 

LL.M. serve in challenging military justice billets requiring expertise in military and criminal law 

issues. In particular, majors serve as senior trial or defense counsel in LSSSs or joint law 

centers. Similarly, majors and lieutenant colonels with this specialty may be assigned as 

regional trial or defense counsel. In FY17, thirteen judge advocates were competitively 
104

selected by board process to attend resident education programs leading to LL.M.s in criminal 

law from an American Bar Association accredited program at a civilian institution or The 

Judge Advocate General’s Legal Center and School of the U.S. Army. The number of 

students and seats available for this critical education effort is projected to increase in future 

years. Both military and civilian LL.M. programs provide judge advocates with specialized 

knowledge to handle the systemic changes to military justice, increased operational 

demands, and other statutory or policy priorities. Ultimately, this LL.M. program enables the 

Marine Corps judge advocate community to provide legal support, consistent with the Marine 

Corps ethos, using Marine judge advocates, who are both MAGTF officers and lawyers. 

VI. CONCLUSION

The practice of military justice across the Marine Corps judge advocate community in 

FY17 was characterized by both growth and success during a time of tremendous challenges 

posed by congressional and public scrutiny of military justice practice generally, coupled with 

the task of preparing for those major changes under the MJA. The Marine Corps will maintain 

systematic efforts to improve the practice of law within the Service through continuous 

evaluation, adaptation, and standardization. As the Judge Advocate Division prepares the 

Marine Corps for implementation of the MJA, it will continue to evaluate and improve practice 

and procedures and invest in our personnel to ensure the highest quality of legal services to 

commanders, accused, and victims. 
105

APPENDIX - U.S. NAVY/MARINE CORPS MILITARY JUSTICE STATISTICS

Report Period: FY 2017[A]

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF INCREASE 

(+)/ DECREASE (-) 

OVER LAST REPORT

USN USMC USN USMC USN USMC

GENERAL 124 126 99 113 23 13 -7.1%

BCD SPECIAL 133 165 120 146 15 19 -18.4%

NON-BCD 

SPECIAL 0 0 0 0 0 0

0

SUMMARY* 25 151 25 151 0 0 -47.3%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER 

LAST REPORT 

-25.2%

PART 2 – DISCHARGES APPROVED ** 

GENERAL COURTS-MARTIAL (CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES 

40 USN; 77 

USMC

 NUMBER OF BAD-CONDUCT DISCHARGES 29 USN; 30 

USMC

SPECIAL COURTS-MARTIAL (CA LEVEL) 

 NUMBER OF BAD-CONDUCT DISCHARGES

42 USN; 91 

USMC

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL 

COURTS-MARTIAL

202

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL 

COURTS-MARTIAL

184

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL 

COURTS-MARTIAL

22 [B]

PART 4 – WORKLOAD OF THE U.S. NAVY-MARINE CORPS COURT OF CRIMINAL 

 APPEALS

TOTAL ON HAND BEGINNING OF 

PERIOD 171

 GENERAL COURTS-MARTIAL 108

 BCD SPECIAL COURTSMARTIAL63

REFERRED FOR REVIEW 347

 GENERAL COURTS-MARTIAL 203

 BCD SPECIAL COURTSMARTIAL144

TOTAL CASES REVIEWED 361

 GENERAL COURTS-MARTIAL 190
106

 BCD SPECIAL COURTSMARTIAL171

TOTAL PENDING AT CLOSE OF 

PERIOD

157

 GENERAL COURTS-MARTIAL 119

 BCD SPECIAL COURTSMARTIAL38

RATE OF INCREASE (+)/DECREASE (-) OVER 

NUMBER OF CASES

REVIEWED DURING LAST REPORTING PERIOD

-2.17%

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE U.S. NAVY-MARINE CORPS 

 COURT OF CRIMINAL APPEALS

NUMBER 361

PERCENTAGE 100% 

PART 6 – ACTIONS OF THE U.S. COURT OF APPEALS FOR THE ARMED FORCES 

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF 

(58)

16.1%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS 

REPORTING PERIOD 

-23.7%

PERCENTAGE OF TOTAL PETITIONS GRANTED 

(16)

27.6%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS 

REPORTING PERIOD 

162.1% 

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES 

REVIEWED BY CCA

4.4%

RATE OF INCREASE (+)/DECREASE (-) OVER THE NUMBER OF CASES 

REVIEWED DURING LAST REPORTING PERIOD

104.4%

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF 

PERIOD 5 [C]

RECEIVED 5

DISPOSED OF 3

 GRANTED 0

 DENIED 1

 NO JURISDICTION 2

 WITHDRAWN 0

TOTAL PENDING AT END OF PERIOD 7

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE 418 193 USN; 225 

USMC

GENERAL COURTS-MARTIAL 172 80 USN; 92 USMC
107

SPECIAL COURTS-MARTIAL 226 113 USN; 113 

USMC

TRIALS BY MILITARY JUDGE WITH MEMBERS 130 64 USN; 66 USMC

GENERAL COURTS-MARTIAL 78 44 USN; 34 USMC

SPECIAL COURTS-MARTIAL 52 20 USN; 32 USMC

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ 

NUMBER OF COMPLAINTS 59

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 508,334

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ) 

NUMBER OF CASES WHERE NONJUDICIAL 

PUNISHMENT IMPOSED 11,192 [D]

RATE PER 1,000 22

RATE OF INCREASE (+)/DECREASE (-) OVER 

PREVIOUS PERIOD 26.3%

Explanatory Notes

[A] Report Period. Case statistics were derived from the Navy and Marine Corps Case 

Management System.

[B] Part 3, Article 69. This figure represents only cases reviewed under Article 69(a)

[C] Part 7. This figure represents only cases reviewed under Article 69(b).

[D] Part 11. This figure was derived from Navy’s Quarterly Criminal Activity Report whereby 

Navy commanders report all known instances of criminal activity pursuant to JAGINST 

5800.9C and from the Marine Corps Total Force System.
108

Section 5

Report of the Judge Advocate General of the Air Force
109

REPORT OF

THE JUDGE ADVOCATE GENERAL

OF THE UNITED STATES AIR FORCE

OCTOBER 1, 2016 TO SEPTEMBER 30, 2017

INTRODUCTION

The United States Air Force Judge Advocate General’s Corps (JAG Corps) enhanced 

the effectiveness of the military justice system, a system that exists to promote justice, 

maintain good order and discipline, promote efficiency and effectiveness in the military 

establishment, and thereby strengthen the national security of the United States. This tri-fold 

purpose is, by design, different than any other American criminal justice or disciplinary 

system. A disciplined force is the foundation of combat effectiveness. The military justice 

system operates to balance the interests of the military establishment and command with the 

rights of the individual Airman accused of a crime and with full consideration and respect for 

victims of crime. Commanders, advised by judge advocates, and armed with the relevant 

facts, including victim input, assess the quality and quantity of evidence in order to maintain 

that critical balance. All components of our military justice system continued to balance the 

interests of the military establishment and command with the rights of the individual Airman 

accused of a crime and with full consideration and respect for victims of crime.

In furtherance of The Judge Advocate General’s (TJAG) duties under Article 6(a), 

Uniform Code of Military Justice (UCMJ), “to make frequent inspection in the field in the 

supervision of the administration of military justice,” TJAG and the Deputy Judge Advocate 

General, along with senior enlisted leaders, inspected legal offices at installations around the 

world, increasing readiness and improving the consistency and quality of legal services. The 

JAG Corps strives for timeliness in the delivery of a fair and equitable process that upholds 

justice and maintains good order and discipline, ensuring due process for the accused. To 

accomplish this mandate, we utilize a rigorous vetting process to select the very best 

practitioners as appellate and trial judges, senior trial and defense counsel, and special 

victims counsel. We also carefully screen paralegals and court reporters to ensure everyone 

who plays a part in the military justice process understands his or her role and is poised to 

execute such role with dedication and precision and a sense of urgency.

In addition, it is important that our military justice standards reflect our current practice 

and that our military justice metrics and milestones be both informational and inspirational. 

They must inform practitioners of what is expected and inspire participants to achieve the 

established milestones. Considering the last detailed study of military justice processing 

times occurred in 1996, I wanted to ensure that our metrics were up-to-date and reflected the 

realities of our current court-martial practice. As a result, I commissioned a team of military 

justice experts to conduct an extensive two-year study and review of contemporary military 

justice practice and processing. We began our study by engaging with the Air Staff's 

Directorate of Studies, Analysis and Assessments to help us look beyond the numbers to 

identify patterns, issues, and possibilities. We discussed relevant rules, goals, stakeholders, 
110

and data collection and delivered 20 years of courts-martial data. The subsequent dissected 

findings were highly informative and provided us with tremendous insights as we drafted, and

then narrowed, a variety of proposals. Our new metrics go well beyond simply repositioning 

numerical goals; they adjust our focus on what we measure and they align expectations with 

the law and court-room reality of today's courts-martial.

The resulting metrics and milestones were rolled in 2017 and have proven to be 

extremely useful tools in achieving outstanding processing times and just results. Our three 

metrics focus on compliance with the law: (1) bringing the accused to trial within 120 days of 

certain trigger events (Rule for Courts-Martial 707); (2) completing action by the convening 

authority on the findings and sentence of the court-martial within 120 days of completion of 

the trial (Moreno standard); and (3) forwarding the record of trial to the appropriate office for 

appellate review within 14 days of action by the convening authority (Moreno standard), while 

our data-driven milestones focus on ideal processing times to encourage legal practitioners to 

recognize strengths, identify weaknesses, and implement improvements to their whole 

process.

Last year, the re-institution of our circuits brought our military justice practice to new 

heights with increased judicial participation. Senior trial and defense counsel are now 

assigned to nearly every felony-level trial and extensive training opportunities are available for 

our junior counsel and paralegals. Finally, our new metrics and milestones will better inform 

and inspire practitioners to try cases more efficiently, ultimately ensuring justice for all.

THE AIR FORCE COURT OF CRIMINAL APPEALS (AFCCA)

The Air Force Court of Criminal Appeals (AFCCA) issued 254 opinions in Fiscal Year 

(FY) 17, up from 192 the prior FY. The court ended the FY with eight active duty judges 

assigned. Additionally, court staff went from two commissioners to one, while otherwise 

remaining constant at two paralegals and a clerk of the court. During FY17, the court was 

also supported by four reserve appellate judges, one reserve paralegal law school graduate, 

one part-time spring law student extern, two summer law student externs, and one part-time 

fall law student extern. 

At the beginning of FY17, the Court had 269 cases docketed, including remand and 

miscellaneous docket cases. Of the docketed cases, 70 were pending decision, 32 of which 

were pending for more than 180 days, and five of which exceeded the Moreno standard. At 

the end of FY17, the Court had 192 cases docketed, including remand and miscellaneous 

docket cases. Of the docketed cases, 55 were pending decision, three of which were pending 

for more than 180 days, and two of which exceeded the Moreno standard.

The Court issued 17 published opinions during FY17. The court held oral argument in 

10 cases. Pursuant to the Court’s “Project Outreach” program, one of these oral arguments 

was held at the University of Houston Law Center and another was held at the Ohio State 

University Moritz College of Law. Outreach arguments are an exceptional tool that offer 

civilians the opportunity to observe and better understand the military justice system. This is 

especially critical for law students who may otherwise have very little experience with or 
111

exposure to the military justice system. Further, outreach arguments serve as a powerful 

recruiting tool for the Air Force and The JAG Corps throughout the civilian community.

During FY 17, one appellate judge served on the United States Court of Military 

Commissions Review (USCMCR) and three additional judges were identified to serve on the 

USCMCR. The USCMCR hears appeals of cases convened under the Military Commissions 

Act of 2009. The USCMCR not only hears cases with a finding of guilty from military tribunals 

at Guantanamo Bay, but also hears appeals on issues taken prior to and during trial. The 

United States Supreme Court granted certiorari on two Air Force Court of Criminal Appeals

cases (along with one case from the Army Court of Criminal Appeals) involving the propriety 

of a sitting military appellate judge also serving on the USCMCR. The consolidated cases 

were pending at the end of FY17. 

TRIAL JUDICIARY

The Air Force Trial Judiciary Directorate (JAT) is responsible for docketing and 

presiding over all Air Force general and special courts-martial, as well as an array of federal 

hearings. The Directorate is staffed by 21 active-duty trial judges, three reserve trial judges, 

two noncommissioned officers, one civilian employee, and seven enlisted court reporters. 

The office of the Chief Trial Judge is co-located with the Central Docketing Office and the 

Court Reporter Manager at Joint Base Andrews, Maryland. 

The Directorate is divided into five geographical judicial circuits, each led by a Chief 

Circuit Military Judge. The judges are headquartered at Ramstein Air Base, Germany; Joint 

Base Langley-Eustis, Virginia; Joint Base San Antonio Randolph, Texas; Travis Air Force 

Base, California; and Kadena Air Base, Japan and serve the European, Eastern, Central, 

Western, and Pacific Circuits, respectively. 

In 2017, the Directorate created the Court Reporter Manager position in order to 

centralize management and detailing authority of all court-reporting and transcription 

taskings. In October, TJAG gave authority to the Directorate for world-wide detailing of courtreporters.

In FY 2017, Air Force judges presided over 475 general and special courts-martial. 

Judges also served as preliminary hearing officers in 84 Article 32 hearings involving sexual 

offenses or complex allegations. Additionally, judges served as legal advisors for officer 

discharge boards and in post-trial hearings, contempt proceedings, and Environmental Impact 

Statement public hearings. 

In August, the Directorate, along with senior trial, defense, and special victims’ counsel 

(SVC), as well as thirteen court reporters, held its second Air Force Circuit Annual Training at 

Joint Base Andrews, Maryland. All Air Force trial judges attended the 5-day event, which 

provided the opportunity to build upon circuit camaraderie and foster professionalism, while 

also offering instruction on such areas as forensic analysis of electronic media, digital 

evidence, forensic psychology, sexual assault nurse exams, and recent appellate cases. This 

year also included breakout instruction for all enlisted court reporters and the civilian court 

reporters in attendance on abbreviated records of trial and court reporter equipment training. 
112

Air Force trial judges taught military justice in classrooms and courtrooms worldwide. 

The Chief Trial Judge and Deputy Chief Trial Judge instructed new military judges at The 

Army Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. Air 

Force trial judges trained new judge advocates, trial and defense counsel, special victims 

counsel, and staff judge advocates at the Air Force Judge Advocate General’s School, on 

Maxwell Air Force Base, Alabama. Air Force trial judges also provided practical instruction at 

more than a dozen trial advocacy courses held throughout the world to enhance current and 

future practitioners’ litigation skills. Judges continued their partnership with the Air Force 

Judge Advocate General’s School to create several web-based training series on 

impeachment, discovery, hearsay, and evidentiary foundations.

Currently there are two active duty judges detailed to support the USCMCR. The Chief 

Judge continues to preside over the commission proceeding for the alleged USS Cole 

bombing.

AIR FORCE JUDICIARY

The Air Force Legal Operations Agency (AFLOA), Judiciary Directorate (JAJ), is 

responsible for the administration of military justice across the Air Force. JAJ advises TJAG, 

the Chief of Staff of the Air Force (CSAF), and the Secretary of the Air Force (SecAF) on 

military justice matters, works with the other uniformed services to propose legislation and 

modifications to executive orders pertaining to military justice, assists convening authorities 

and staff judge advocates in the field, and provides the highest quality defense services to 

Airmen worldwide. 

The Directorate performs its mission through five divisions: the Government Trial and 

Appellate Counsel Division (JAJG); the Appellate Defense Division (JAJA); the Trial Defense 

Division (JAJD); the Military Justice Division (JAJM); and the Clemency, Corrections and 

Officer Review Division (JAJR).

GOVERNMENT TRIAL & APPELLATE COUNSEL DIVISION (JAJG)

APPELLATE GOVERNMENT COUNSEL (JAJG)

During this past year, eleven active duty judge advocates, nine reserve judge 

advocates, and one civilian attorney vigorously represented the government in Article 66 and 

Article 67 appeals of Air Force court-martial convictions. The Division is led by an O-6, Chief 

of Government Trial and Appellate Division and includes a GS-15, Associate Chief, an O-5, 

Deputy Chief for the Government Appellate Division, as well as the remaining counsel in the 

grade of O-3 and O-4 who represent the United States on all appeals before The Air Force 

Court of Criminal Appeals and the Court of Appeals of the Armed Forces. The Division also 

sought and obtained certification from The Judge Advocate General in three cases for review 

by the United States Court of Appeals for the Armed Forces (CAAF), and filed government 

appeals in four cases under Article 62, UCMJ, at the AFCCA. When appropriate, the Division 

responded to petitions for extraordinary relief under the All Writs Act. The Division continued 

to vigorously defend the death sentence adjudged and approved in United States v. Witt, the 
113

Air Force's first death penalty case in nearly two decades. Specifically, in fiscal year 2017, 

JAJG’s senior trial and appellate government counsel continued its diligent preparation for the 

sentence rehearing ordered by CAAF, including representing the government in two motions 

hearings and providing appropriate victim and witness support.

Appellate government counsel zealously represented the government in 222 written 

briefs and 29 oral arguments before CAAF and AFCCA. Their advocacy resulted in notable 

appellate rulings during the year. In United States v. McClour, 76 M.J. 23 (C.A.A.F. 2017), 

CAAF agreed with JAJG and held that the Air Force’s standard reasonable doubt instruction 

was not plainly erroneous. This holding resulted in CAAF affirming many other Air Force and 

Navy/Marine Corps cases on appeal where the same instruction had been used. In a 

published case of first impression, United States v. Lutcza, 76 M.J. 698 (A.F. Ct. Crim. App. 

2017), JAJG convinced AFCCA that an accused did not have a reasonable expectation of 

privacy in the copy of the data from his cell phone that he consented to allow investigators to 

make. AFCCA held that it was permissible under the Fourth Amendment for investigators to 

search a copy of the contents of the accused’s phone, even after he had subsequently 

revoked consent. JAJG’s advocacy also persuaded AFCCA to deny a writ of coram nobis in 

United States v. Lewis, 76 M.J. 829 (A.F. Ct. Crim. App. 2017), a published decision. AFCCA 

held that CAAF’s groundbreaking decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. 

2016) which made it error to use charged conduct as M.R.E. 413 evidence, did not apply 

retroactively to cases where the convictions had become final on appeal. AFCCA applied its 

holding in Lewis to two other cases. CAAF subsequently denied writ appeals in all three 

cases.

Appellate government counsel provided trial litigation support and training to the field 

throughout the year. Division counsel educated judge advocates and paralegals at Air Force 

training events such as the Military Justice Administration Course, the Trial and Defense 

Advocacy Course, the Annual Survey of the Law course and the various sexual assault 

prosecution courses hosted by the Air Force. In addition, counsel participated in training 

special agents of the Air Force Office of Special Investigations at the Federal Law 

Enforcement Training Center at Glynco, Georgia, and provided instruction to Drug 

Enforcement Agency analysts on providing effective courtroom testimony. Appellate counsel 

were also assigned to serve as lead trial counsel in several complex cases sent back by 

appellate courts for rehearing.

The Division receives crucial appellate counsel support from nine assigned reserve 

judge advocates, especially during manning shortages and caseload surges. They continue 

to provide superb support, greatly assisting the Division in carrying out its mission. 
114

A summary of Air Force Appellate Government practice follows:

AFCCA FY13 FY14 FY15 FY16 FY17

Briefs Filed 188 175 193 168 177

Cases Argued 14 18 10 11 16

CAAF FY13 FY14 FY15 FY16 FY17

Briefs Filed 30 40 18 34 48

Cases Argued 9 14 13 9 13

SUPREME 

COURT

FY13 FY13 FY15 FY16 FY17

Petition/Waivers 

Filed

1 1 0 1 1

Briefs Filed 0 0 0 0 0

SENIOR TRIAL COUNSEL (JAJG)

Senior Trial Counsel (STCs) are detailed to prosecute cases by the Division 

headquarters at Joint Base Andrews, Maryland. Their primary responsibility is to represent 

the government in the most complex general courts-martial. The STC program consists of 

the O-5 Chief Senior Trial Counsel of the Air Force, 5 Circuit Chief Senior Trial Counsel, and 

18 Senior Trial Counsel strategically located throughout the world. Eleven STCs have earned 

designation through training, knowledge and experience as Special Victims Unit (SVU) 

prosecutors. The SVU prosecutors handle the most serious, most complicated, and highestvisibility sexual-assault cases in the Air Force. The SVU prosecutors, along with the rest of 

the STCs, are supported by the SVU’s Chief of Policy & Coordination, who is the Division’s 

focal point for issues related to sexual assault. One STC also acts as liaison to the 

Department of Defense (DoD) Computer Forensics Laboratory and is the Air Force’s legal 

expert on issues related to digital evidence. STCs prosecute approximately 91 percent of all 

Air Force general courts-martial. Additionally, in FY17, STCs prosecuted 82 special courtsmartial, a 26 percent increase from the previous FY. The members of the Air Force’s SVU 

prosecutors boast an experience of an average of 85 cases, which include approximately 20 

cases specifically focusing on sexual assault charges. 

In FY 17, STCs spent in excess of 3,200 days on temporary duty away from their 

home stations, and represented the government in more than 420 courts-martial and related 

hearings and proceedings. In addition to prosecuting courts-martial, all members of the 

Senior Trial Counsel team support the advancement of military justice by leading various 

training events including: legal office training in conjunction with each case; individual 

mentoring of junior counsel; briefings at Air Force major command staff judge advocate 

courses; and conducting online seminars to JAG Corps personnel worldwide. In total during 

FY17, STCs provided approximately 2,300 man hours of training to the field. 

Again this year, in addition to other Air Force courses designed to enhance advocacy, 
115

STCs took part in both the Intermediate and Advanced Sexual Assault Litigation Courses 

along with members of the Division’s leadership who attended as faculty. Further, as part of 

the second annual Air Force Circuit Annual Training at Joint Base Andrews, STCs received 

intensive training specially tailored to the high-profile cases they prosecute and enhanced 

peer-to-peer education in a variety of subject areas. In addition to training conducted within 

the Government Trial and Appellate Counsel Division, Air Force Circuit Annual Training also 

allowed the entire STC corps to train in plenary sessions alongside judge advocates assigned 

to the Trial Judiciary, Trial Defense Division and SVC Division. This opportunity enhanced 

knowledge of the missions of the other divisions. STCs also received a variety of training 

offered by sister service and non-DoD sources. These trainings, such as the Navy’s 

Prosecuting Alcohol Facilitated Sexual Assault course and the Association of Government 

Attorneys in Capital Litigation’s Annual Conference, add to the perspective of STCs and 

allows for the cross-feed of information from outside of the Air Force. In total, STCs attended 

approximately 1,400 man hours of training to improve advocacy and prosecution skills.

APPELLATE DEFENSE DIVISION (JAJA)

The Air Force Appellate Defense Division is responsible for delivering appellate 

defense services to Airmen on appeal. In FY17, ten active duty judge advocates, nine 

reserve judge advocates, one civilian attorney, and two paralegals served as champions on 

appeal for 456 Airmen. As in past years, reserve component judge advocates continued to 

provide support to JAJA. In FY17, reservists submitted 42 Assignments of Error and filed 15 

Petitions for Review at CAAF.

In FY17, appellate defense counsel participated in Project Outreach arguments before 

AFCCA, and before CAAF at the University of Alabama Law School in Tuscaloosa, the 

University of Colorado School of Law in Boulder, and Peterson Air Force Base, Colorado.

In FY17, JAJA advocacy contributed to several notable rulings from appellate courts 

which helped clarify the rights of appellants and impacted the practice of military justice at the 

trial level. In United States v. Pugh, CAAF set aside the findings of guilt holding an Air Force 

regulation prohibiting consumption of foods containing hemp seed oil was overbroad. In 

United States v. Meakin, AFCCA found a violation of Article 12 of the UCMJ and ordered new 

post-trial processing to determine what relief the convening authority gives before AFCCA 

considers granting any additional relief on appeal. In front of CAAF, JAJA secured an 

important decision concluding unlawful command influence required a new trial in United 

States v. Boyce. Finally, JAJA advocacy secured a grant of certiorari from the Supreme 

Court of the United States in United States v. Dalmazzi. The important appointments clause 

and separation of powers issues raised by this case were argued before the Supreme Court 

on 16 January 2018.

In 2017, JAJA attorneys supported and attended multiple training events outside the 

Air Force. JAJA counsel attended joint military appellate advocacy training in the National 

Capital Region with the other services, civilian appellate advocacy training at the University of 

North Carolina – Chapel Hill School of Government, and training provided by the Council of 

Appellate Lawyers in Long Beach, California. Additionally, Division attorneys continued to 

brief at various courses to include training senior defense counsel at Joint Base Andrews and 
116

new defense counsel at The Air Force Judge Advocate General’s School.

The following figures reflect the Division’s workload over the past six fiscal years:

AFCCA

FY 13 FY 14 FY15 FY16 FY17

Briefs Filed 221 205 195 175 128

Cases Argued 10 8 10 14 10

USCAAF

FY 13 FY 14 FY15 FY16 FY17

Supplements to Petitions 257 222 171 126 118

Grant Briefs 5 17 6 6 14

Cases Argued 10 13 13 11 10

SUPREME COURT

FY 13 FY14 FY15 FY16 FY17

Petitions 1 1 2 2 1

Briefs in Opposition 0 0 0 0 0

Briefs on the Merits 0 0 0 0 1

TRIAL DEFENSE DIVISION (JAJD)

The Trial Defense Division is responsible for providing all defense services throughout 

the Air Force through its worldwide team of area defense counsel (ADC), defense paralegals 

(DP), senior defense counsel (SDC), chief senior defense counsel (CSDC), and defense 

paralegal managers (DPM). The Chief, JAJD, is assisted by a Deputy Chief, Policy and 

Training, and an Office Superintendent at Joint Base Andrews.

During FY17, the Division was staffed with 84 ADCs and 74 DPs. These ADC-DP 

teams were stationed at 69 operating locations worldwide. They were, in turn, supervised by 

the Division’s 19 SDCs and 3 CSDCs. Each SDC supervised 4 to 5 ADC-DP teams and each 

CSDC in turn supervised 6 to 7 SDCs. Each of the 3 CSDCs was assisted by a DPM to help 

manage enlisted issues.

During FY17, JAJD completed the consolidation of the 19 SDCs from 19 operating 

sites down to the five circuit locations described above. Together, these 186 professionals 

provided defense services to Airmen around the world.
117

The continuing success of the Air Force’s ADC program is largely attributable to its 

independence and the effective and zealous advocacy of its personnel. To ensure the best 

representation for Air Force clients, training remains JAJD’s top priority. Each SDC provided 

on-the-job training and mentoring to the ADCs in his or her charge on a continuing basis. 

CSDCs likewise mentored the SDCs in their areas of responsibility. Newly appointed ADCs 

and DPs attend formal training at the Defense Orientation Course held at The Air Force 

Judge Advocate Genera’s School, and all ADCs attend an annual course on sexual assault 

litigation held in their respective circuits. All SDCs attended Air Force Circuit Annual Training 

which included a Division-run Leadership Course, at Joint Base Andrews. Defense personnel 

also attended trial advocacy courses conducted at both The Air Force Judge Advocate 

General’s School and various civilian-sponsored courses.

MILITARY JUSTICE DIVISION (JAJM)

The Military Justice Division provides counsel and prepares positions on military justice 

law and policy for the SecAF, CSAF, and TJAG. The Division represents the Air Force on the 

DoD Joint Service Committee on Military Justice. JAJM also assembles reports and 

responds to requests for information on military justice issues and cases from Congress, the 

White House, DoD, Headquarters Air Force, the media, and general public. In addition, JAJM 

conducts appellate review and processing of courts-martial on behalf of TJAG, prepares 

advisory opinions on military justice issues raised in applications submitted to the Air Force 

Board for Correction of Military Records (AFBCMR), and processes military justice actions for 

decision by SecAF and CSAF. The Division promulgates Air Force regulations and directives 

for the administration of military justice and provides guidance to more than 150 convening 

authorities and their supporting legal offices as well as training on the same. 

During the past fiscal year, JAJM examined 20 records of trial for review under Article 

69(a), UCMJ; 1 record under Article 69(b), UCMJ; and 2 records under Article 73, UCMJ. It 

provided 81 advisory opinions concerning AFBCMR applications. It responded to 39 military 

justice inquiries submitted to senior officials, including the President, SecAF, and CSAF, and 

to Members of Congress. Additionally, the Division reviewed and released over 25,000 

pages of court records in response to more than 570 requests by members of Congress, the 

media, law enforcement entities, and individuals under the Freedom of Information Act. In its 

oversight role for the Air Force’s Victim Witness Assistance Program (VWAP), JAJM 

supported legal offices as they provided assistance to 10,765 victims and 4,282 witnesses of 

crimes in calendar year 2017. 

JAJM twice presented the Military Justice Administration Course, a “back to basics” 

weeklong course attended by more than 110 judge advocates and paralegals. Division 

personnel also taught at additional courses, including the Staff Judge Advocate Course (a 

required course for judge advocates assigned to staff judge advocate positions); Gateway (an 

intermediate developmental course for judge advocates in the grade of major); Annual Survey 

of the Law (continuing education for Air Reserve Component judge advocates and 

paralegals); the Joint Military Judges Annual Training for military judges of all Services; and 

the Fulton Conference (continuing education for military appellate judges).
118

JAJM continued to expand the functionality of the Automated Military Justice Analysis 

and Management System (AMJAMS), which remained the premier military justice database 

among the Services, providing comprehensive case data for over three decades. AMJAMS 

had already been linked to the public website of The Air Force Judge Advocate General in 

order to make available the trial docket and results for general and special courts-martial 

across the Air Force. As discussed, TJAG approved the establishment of new metrics for 

courts-martial based on legal standards, the elimination of the previous metrics, and the 

wholescale revision of court-martial goals for timeliness, called milestones. These new 

metrics and milestones were incorporated in AMJAMS reporting during the fiscal year.

JAJM published a revised version of the Air Force’s bedrock military justice policy, Air 

Force Instruction 51-201, to capture sexual assault prevention and response components of 

the National Defense Authorization Acts of 2014 through 2016. This update replaced 

temporary guidance to the field and brought the instruction in line with current practice. JAJM 

also actively engaged with the DoD Regulatory Reduction Task Force, presenting a plan to 

rescind repetitive Air Force federal regulations.

Throughout the fiscal year, JAJM supported the work of two federal advisory 

committees studying sexual assault proceedings under the UCMJ: the Judicial Proceedings 

Panel (JPP) and the Defense Advisory Committee on the Investigation, Prosecution and 

Defense of Sexual Assault in the Armed Forces (DAC-IPAD). The JPP published ten reports 

in 2017 prior to its sunset at the end of the fiscal year. JAJM coordinated Air Force 

comments to and developed strategic implementation plans during the drafting of those 

reports and following release of the JPP’s recommendations. The DAC-IPAD stood up in 

early 2017 and is expected to continue much of the work of the JPP. JAJM worked to 

facilitate requests from the DAC-IPAD for 14 speakers to provide testimony at meetings. 

JAJM also provided the DAC-IPAD over 150,000 pages from 245 court-martial records for 

review.

Finally, JAJM led the Air Force effort to update the Manual for Courts-Martial and 

implement the Military Justice Act of 2016 (MJA), which was signed by the President on 

23 December 2016. The MJA was the culmination of a multi-year effort that began with the 

comprehensive review of the military justice system and encompasses the most sweeping 

changes to the UCMJ in over 30 years. JAJM, through its seat on the Joint Service 

Committee on Military Justice (JSC), drafted for Presidential approval a complete rewrite of 

the Manual for Courts-Martial implementing the MJA. JAJM coordinated these proposed 

changes and adjudicated over 120 Air Force comments ensuring Air Force positions were 

accurately captured in the changes. Through its role on the JSC, JAJM is proud to have 

contributed -- directly, substantively, and significantly -- to the overhaul of the UCMJ.

CLEMENCY, CORRECTIONS AND OFFICER REVIEW DIVISION (JAJR)

At the end of fiscal year 2017, 237 Air Force personnel were in confinement. Of those, 

90 inmates were in long-term confinement at the United States Disciplinary Barracks, Fort 

Leavenworth, Kansas, and 43 were serving their sentence in the Federal Bureau of Prisons 

system. The number of Air Force members and former members on parole or Mandatory 

Supervised Release at the end of fiscal year 2017 was 59. 
119

During the reporting period, the division reviewed 13 Article 71, UCMJ, officer 

dismissal cases. The Secretary of the Air Force approved the dismissals in those cases. The 

division reviewed two enlisted cases for Secretarial clemency under Article 74, UCMJ. The 

Secretary granted clemency in both by substituting an administrative discharges for the 

adjudged bad conduct discharges. The division also reviewed two cases for Presidential 

Pardon consideration.

THE JUDGE ADVOCATE GENERAL’S SCHOOL (AFJAGS)

The Air Force Judge Advocate General’s School is the educational arm of The JAG 

Corps. Located at Maxwell Air Force Base, Alabama, AFJAGS provided education and 

training in all aspects of military legal practice to attorneys and paralegals from all military 

services, other federal agencies, and several foreign countries. Military justice instruction 

topics included advocacy, administration, the rules of evidence, the rules of procedure, and 

sexual assault policy and response. AFJAGS faculty members also provided instruction on 

military justice for several schools and colleges throughout Air University, the Air Force’s 

center for professional military education. During FY 2017, AFJAGS faculty members 

instructed more than 13,000 students at these military institutions.

 Additionally, AFJAGS published 12 articles concerning military justice and other 

related criminal justice issues in The Reporter and The Air Force Law Review. With the 

assistance of subject matter experts from the Administrative Law Directorate, Air Force Legal 

Operations Agency’s Civil Law & Litigation Directorate, and Air Force Legal Operations 

Agency’s Judiciary Directorate, AFJAGS significantly revised the School’s flagship 

publication, Military Commander and the Law, to include significant revisions to the military 

justice portions of this vital commanders’ resource guide which incorporated new law and 

policy in the sexual assault and prevention arena. Military Commander and the Law is 

available online to Air Force legal offices and commanders worldwide. In addition, AFJAGS 

produced webcasts where subject-matter experts taught current military justice topics to 

personnel assigned to all base legal offices, ADC offices, and SVC offices. In FY17, there 

were several live webcasts on military justice topics. These webcasts are now available “on 

demand” via Campus, a web-based learning management system administered by AFJAGS 

and accessible to all members of The JAG Corps. 

 More than 2,400 students attended in-residence and distance education courses in 

FY17. With nearly 60 AFJAGS course offerings, the following courses devoted substantial 

resources to military justice-related topics:

Advanced Sexual Assault Litigation Course

Advanced Trial Advocacy Course

Annual Survey of the Law

Defense Orientation Course (for new area defense counsel and defense paralegals)

Gateway (the JAG Corps’ intermediate leadership course for majors)

Intermediate Sexual Assault Litigation Course (held regionally in the United States and 

overseas)

Judge Advocate Staff Officer Course (initial training for new judge advocates)
120

Law Office Manager Course

Military Justice Administration Course 

Paralegal Apprentice Course

Paralegal Craftsman Course

Senior Enlisted Legal Orientation Course

Senior Officer Legal Orientation Course

Special Victims’ Counsel Course

Staff Judge Advocate Course

Trial and Defense Advocacy Course

Victim/Witness Assistance Program Course (Distance Education)

 In addition to the above AFJAGS resident and distance-learning courses, to further 

enhance military justice advocacy training, AFJAGS continued administering the TRIALS 

program – “Training by Reservists in Advocacy and Litigation Skills” – where teams of JAG 

School faculty, augmented by Reserve judge advocates, conduct regional courses in 

foundational advocacy skills. In FY17, TRIALS programs were conducted at 7 locations: 

Osan Air Base, South Korea; Ramstein Air Base, Germany; Davis Monthan Air Force Base, 

Arizona; Joint Base Andrews, Maryland; Maxwell Air Force Base, Alabama; Joint Base LewisMcChord, Washington; and Joint Base San Antonio-Fort Sam Houston, Texas. Relatedly, 

continuing to place a premium of trial advocacy training in all forms, AFJAGS added 30% 

more “on your feet” advocacy time for advocacy drills and workshops at the Trial and Defense 

Advocacy Course to further facilitate the transition of base-level trial and defense counsel to 

fully independent intermediate-level litigators.

To complete the circuit of senior-leader military-justice training already provided by 

AFJAGS to rising group and wing commanders in the Senior Officer Legal Orientation Course 

(SOLO) and command chief master sergeants in the Senior Enlisted Legal Orientation 

Course (SELO), AFJAGS developed and updated the General Court-Martial Convening 

Authority (GCMCA) Training and Resource Guide. These training materials are designed to 

facilitate in-person, “table top” refresher training to general court-martial convening 

authorities, administered by their respective SJAs. The training materials consist of a 

compact, comprehensive set of PowerPoint slides with detailed instructor notes for the staff 

judge advocate’s briefing their general court-martial convening authorities and a stand-alone 

Resource Guide. This guide has bullet background papers on topics of particular interest to 

the successful administration of general court-martial convening authorities duties, ranging 

from administrative discharges; nonjudicial punishment, courts-martial; and sexual assault 

prevention and response. AFJAGS will annually review, update and redistribute these 

materials to all Major Command staff judge advocates. 

 Finally, as previously described in the FY16 report, AFJAGS continued 

implementation of The JAG Corps’ first Career Field Education and Training Plan (CFETP) for 

judge advocates. The plan identifies key learning areas and levels of learning within those 

areas to establish a “life cycle” for legal training over the course of a judge advocate’s career. 

During FY17, AFJAGS faculty collaborated with the Professional Development Directorate in 

finalizing the CFETP’s requirements. The faculty then incorporated all CFETP requirements 

into all lesson plans for the Judge Advocate Staff Officer Course, Gateway, and the Staff 

Judge Advocate Course. Ongoing compliance with the CFETP and AFJAGS curriculum 
121

standards is the focus of the School’s self-inspection program administered by its Standards 

and Evaluation Division. 

LEGAL INFORMATION SERVICES (JAS)

The Legal Information Services Directorate (JAS) acquires and develops new legal 

information technology (IT) tools and improves existing ones to better support military justice 

business processes throughout the Air Force.

The JAG Corps continued acquisition efforts in pursuit of capabilities for a Disciplinary 

Case Management System (DCMS) that will replace the Automated Military Justice Analysis 

and Management System (AMJAMS) as well as the Web-based Airman Separation Program 

(WASP), Judiciary Docket System (JDS), and other discipline-related applications hosted by 

JAS. Working with the Air Force Life Cycle Management Center (AFLCMC) the Air Force 

Research Labs (AFRL), and the Air Force Legal Operations Command Contract Law Field 

Support Center, JAS is utilizing an Other Transaction Authority procurement process to 

expedite DCMS acquisition through a small-scale, non-traditional prototype competition. 

As previously reported, JAS has been supporting the SVC Program through a 

SharePoint site used by SVCs to track cases. The SharePoint site was designed as a 

temporary solution until a more robust system could be acquired and developed. In 

September 2015, JAS contracted through Defense Logistics Agency (DLA) for the 

development of an SVC case manager utilizing a commercial case-management platform 

hosted by DLA. Requirements corrections, as well as technical and contract execution 

challenges, have delayed DLA’s release of the application until early 2018. 

While making progress to replace AMJAMS with DCMS, JAS continued to coordinate 

with JAJM on needed upgrades to AMJAMS to maintain its usefulness pending funding and 

acquisition of the DCMS. In 2017, JAS focused on making changes to the application and 

reports necessary to support new Military Justice Metrics and Milestones, effective 1 January 

2017. These efforts included adding additional data fields, modifying screens to clearly 

identify inputs associated with the metrics, and reworking the Speedy Trial Clock available 

inside each court-martial case. Additionally, the Courts In Progress, Executive Summary and 

Processing Times Reports were modified to account for the new standards. 

SPECIAL VICTIMS’ COUNSEL (SVC) DIVISION (CLS)

The SVC Division delivers victim-centered advice and advocacy through 

comprehensive, independent representation to sexual assault victims worldwide, assists them 

in obtaining support and recovery resources, and promotes greater confidence in the military 

justice process and the United States Air Force. SVCs and special victims’ paralegal (SVP) 

provide exceptional representation and advocacy for military members (whether in the active 

or reserve component) regardless of the accused’s status, and for dependents, retirees, and 

DoD civilians when the accused is subject to the UCMJ. The headquarters element consists 

of two officers (Division Chief and Deputy Chief), one civilian (Associate Chief), and one 

senior noncommissioned officer (program manager). 
122

During FY17, the Air Force continued to fill billets to the SVC Program. At the end of 

2016, 25 of 46 SVP positions had been filled. By the end of 2017, 45 of 47 paralegal 

positions had been filled, including the paralegal manager position at Division headquarters. 

On the officer side, 57 positions were filled, including the Division Chief, Deputy Division 

Chief, 6 senior special victims’ counsel (SSVCs) and 47 SVCs. Additionally, the Division 

benefits from the expertise and strategic insights of the civilian Associate Division Chief. The 

SVC Program continued to grow to meet demand and opened 6 new offices, giving the 

Program a total of 48 offices, with the Whiteman Air Force Base, Missouri, SVC position 

currently vacant. To further maximize access for victims to SVCs, SVC leadership reviewed 

the support provided to facilities where there is no SVC assigned and realigned SVC 

territories to provide more equitable coverage. This will increase access of victims to SVCs, 

even when there is no SVC physically stationed at a victim’s base.

The SVC Program continuously educates Airmen and promotes SVC services. 

Briefings are given at formal training courses such as the Senior Enlisted Legal Orientation 

Course, the Senior Officer Legal Orientation Course, the Sex Crimes Intermediate Training 

Program, the Annual Survey of the Law, the Dougherty-Nelson Continuing Legal Education 

Program, and the Sexual Assault Response Coordinator Course. In May 2017, The Judge 

Advocate General’s School hosted the Special Victim’s Counsel Course. SVCs also taught at 

and attended five iterations of the Intermediate Sexual Assault Litigation Course. In August 

2017, SVCs also taught at and attended the Advanced Sexual Assault Litigation Course and 

the Appellate Advocacy Training Course. Additionally in August 2017, the SVC Chief briefed 

at two annual Family Advocacy Program conferences. In the fall of 2017, SVC leadership 

undertook a systematic review and overhaul of all courses taught by SVC personnel with a 

focus on providing timely and relevant training to attendees.

Air Force SVCs continued to be actively involved in all facets of the post-trial appellate 

rights of their clients. The SVC Program filed 9 pleadings on behalf of their clients at the 

Service-level Courts of Criminal Appeals. The SVC Program worked with the military 

confinement facilities and the Service parole and clemency boards to establish a process for 

submitting client input at confinement facility disposition boards and the Services parole and 

clemency board hearings. Air Force SVCs submitted 17 victim impact statements on behalf 

of their clients during the parole and clemency process. Air Force SVCs also represented 

their clients at 2 post-conviction (Dubay) hearings, 3 continued confinement hearings and 4 

re-hearings.

Air Force SVC leadership continued to advocate for requisite changes in law. The 

SVC Program drafted legislation to expand the CAAF’s jurisdiction and supported consistent 

language used in the FY18 National Defense Authorization Act (NDAA). In the future, the 

highest appellate court in the Armed Forces can ensure that victims have the same rights 

across all of the Services. Regarding a different section of Article 6b, SVC leadership 

proposed changes to the process for appointing an Article 6b representative. As SVC

representation of non-verbal children increased, SVC leadership recognized the need for a 

military judge to appoint an Article 6b representative for the child earlier in the process of 

most courts-martial. The authority for a military judge to appoint an Article 6b representative 

prior to referral of charges was included in the FY18 NDAA. 
123

At the end of FY17, SVCs were actively representing more than 830 victims, including 

child victims. During the fiscal year, SVCs participated in preliminary hearings and courtsmartial, as well as victim interviews with investigators, defense counsel, and trial counsel. 

SVC client feedback on their experience with the SVC Program and their specific SVC 

continues to be overwhelmingly positive. An impressive 85% of clients surveyed indicated 

they were "extremely satisfied" with their SVC's representation, and almost 15% were 

"satisfied," resulting in an astonishing above 95% satisfaction rate. Not only was every 

represented victim satisfied with their SVC, 100% of victims would recommend other victims 

seek SVC representation.

PERSONNEL

The JAG Corps has approximately 1,301 judge advocates on active duty. Company 

grade officers (lieutenants and captains) make up approximately 45% (579) of that number. 

Approximately 27% (352) are majors and approximately 18% (240) are lieutenant colonels. 

Colonels and above, including one lieutenant general, one major general, and one brigadier 

general, comprise approximately 10% (130) of the Corps. In addition, there are 897 

Department of the Air Force civilians, of which 61% (551) are attorneys and 39% (346) are 

non-attorneys. Grade breakdown includes 307 GS-11s and below, 58 GS-12s, 127 GS-13s, 

197 GS-14s, 201 GS-15s. There are 842 paralegals on active duty. Senior airmen and 

below make up approximately 27% (239) of that number. Staff sergeants make up 

approximately 21% (190), while 25% (222) are technical sergeants, and master sergeants 

make up approximately 16% (146). Senior master and chief master sergeants make up 4% 

(33) and 1% (12) respectively. 

The Air Reserve Component (ARC) of The JAG Corps includes 949 Air Reserve 

Individual Mobilization Augmentee (IMA), Air Force Traditional Reserve unit-assigned, and Air 

National Guard judge advocates, of which 23% (215) are company grade officers (lieutenants 

and captains) and 65% (613) are field grade officers (majors and lieutenant colonels). The 

remaining 13% consist of 113 colonels, 5 brigadier generals, and 3 major generals. The ARC 

also includes 383 paralegals, of which 3% (12) are airmen or airmen first class, 10% (40) are 

senior airmen, 26% (88) are staff sergeants, 35% (119) are technical sergeants, 28% (97) are 

master sergeants, 4% (14) are senior master sergeants, and 4% (13) are chief master 

sergeants.

Fiscal Year 2017 was a great year for military justice in the Air Force where we 

capitalized on the synergy created by the circuits, implemented our new military justice 

metrics and milestones to improve our processing times and achieve just results, and 

constantly worked to improve the quality of our military justice processes. We look forward to 

a robust year of training as we prepare to implement the Military Justice Act of 2016. We will 

closely monitor these new requirements and their impact on military justice to ensure a fair, 

effective and efficient military justice system for all Airmen. 

 CHRISTOPHER F. BURNE

 Lieutenant General, USAF

 The Judge Advocate General
124

Period: Fiscal Year 2017

PART 1 - BASIC COURTS-MARTIAL STATUS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF 

INCREASE(+)/

DECREASE (-) 

OVER

LAST REPORT

GENERAL 159 112 47 -35.10%

BCD SPECIAL 231 64 34 0.43%

NON-BCD SPECIAL [A] 133 12.71%

SUMMARY 76 75 1 -19.15%

OVERALL RATE OF INCREASE ( + ) / 

DECREASE ( - ) OVER LAST REPORT -18.10%

PART 2 - DISCHARGE APPROVED

GENERAL COURTS-MARTIAL (CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES [B] 68

 NUMBER OF BAD CONDUCT DISCHARGES 37

SPECIAL COURT-MARTIAL (CA LEVEL)

 NUMBER OF BAD CONDUCT DISCHARGES 64

PART 3 - RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 - GENERAL COURTS-MARTIAL 98

FOR REVIEW UNDER ARTICLE 66 - BCD SPECIAL COURTS-MARTIAL 64

FOR EXAMINATION UNDER ARTICLE 69 - GENERAL COURTS-MARTIAL 17

PART 4 - WORKLOAD OF THE AIR FORCE COURT OF CRIMINAL APPEALS

TOTAL ON HAND BEGINNING OF PERIOD 255

 GENERAL COURTS-MARTIAL 134

 BCD SPECIAL COURTS-MARTIAL 83

REFERRED FOR REVIEW 152

 GENERAL COURTS-MARTIAL 98

 BCD SPECIAL COURTS-MARTIAL 54

TOTAL CASES REVIEWED 245

 GENERAL COURTS-MARTIAL 124

 BCD SPECIAL COURTS-MARTIAL 77

TOTAL PENDING AT CLOSE OF PERIOD 165

 GENERAL COURTS-MARTIAL 108

 BCD SPECIAL COURTS-MARTIAL 60
125

RATE OF INCREASE (+)/DECREASE (-) OVER NUMBER OF CASES REVIEWED DURING 

LAST REPORTING PERIOD (245/192) 27.60%

PART 5 - APPELLATE COUNSEL REQUESTS BEFORE THE AIR FORCE COURT OF 

CRIMINAL APPEALS

NUMBER 151

PERCENTAGE

99.3

4%

PART 6 - U.S. COURT OF APPEALS FOR THE ARMED FORCES

PERCENTAGE OF AFCCA REVIEWED CASES FORWARDED TO USCAAF (130/245) 53.06%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD -19.34%

PERCENTAGE OF TOTAL PETITIONS GRANTED (25/130) 19.23%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD 11.32%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY AFCCA 

(25/245) 10.20%

RATE OF INCREASE ( + ) / DECREASE ( - ) OVER NUMBER OF CASES REVIEWED

DURING LAST REPORTING PERIOD 4.47%

PART 7 - APPLICATIONS FOR RELIEF, ARTICLE 69(b)

PENDING AT BEGINNING OF PERIOD 1

RECEIVED 0

DISPOSED OF 0

 GRANTED 0

 DENIED 3

 NO JURISDICTION 2

 WITHDRAWN 0

TOTAL PENDING AT END OF PERIOD 0

PART 8 - ORGANIZATION OF COURT

TRIALS BY MILITARY JUDGE ALONE 233

 GENERAL COURTS-MARTIAL 94

 SPECIAL COURTS-MARTIAL 139

TRIALS BY MILITARY JUDGE WITH MEMBERS 157

 GENERAL COURTS-MARTIAL 65

 SPECIAL COURTS-MARTIAL 92

PART 9 - COMPLAINTS UNDER ARTICLE 138

NUMBER OF COMPLAINTS 46

PART 10 - STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 315,534
126

PART 11 - NONJUDICIAL PUNISHMENT (ARTICLE 15)

NUMBER OF CASES WHERE NONJUDICIAL 

PUNISHMENT IMPOSED 3,896

RATE PER 1,000 12.35%

RATE OF INCREASE (+)/DECREASE (-) OVER 

PREVIOUS PERIOD -0.48%

EXPLANATORY NOTES

[A] Of the 231 SPCMs tried and acted upon, there were 64 convictions with a BCD 

adjudged and approved, 133 convictions without a BCD adjudged and approved, and 34 

acquittals.

[B] This includes 10 officer dismissals and 58 enlisted dishonorable discharges.
127

Section 6

Report of the Judge Advocate General of the Coast Guard
128

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE U. S. COAST GUARD

October 1, 2016 to September 30, 2017

PERSONNEL AND TRAINING

The Coast Guard has 223 officers designated as judge advocates serving on active 

duty. Coast Guard lawyers currently serving in legal billets outside the Coast Guard include 

the Staff Judge Advocate to SOUTHCOM, the Staff Judge Advocate to Joint Interagency 

Task Force South and DHS Joint Task Force East, and senior staff attorneys (O-4 and O-5) 

assigned to NORTHCOM, AFRICOM, SOUTHCOM, PACOM, Naval War College, the 

Defense Institute of International Legal Studies, and the Naval Justice School. The Coast 

Guard also has several active duty judge advocates detailed to the Department of Justice, the 

Department of State, and the Department of Homeland Security.

Sixty judge advocates are currently assigned in non-legal “out-of-specialty” billets. 

They include four flag officers, the Vice Commandant of the Coast Guard (O-10), a Rear 

Admiral (O-8) who serves as the Commander, First Coast Guard District based in Boston, 

MA, a Rear Admiral (O-7) who serves as Assistant Commandant for Command, Control, 

Communications, Computers, and Information Technology (C4IT) and Commander, Coast 

Guard Cyber Command, and a Rear Admiral (O-7) who serves as Deputy Director of 

Operations at U. S. Northern Command (NORTHCOM). Other judge advocates in out-ofspecialty assignments include command cadre of Coast Guard cutters, sectors, training 

centers, and support commands. The Coast Guard employs 107 civilian attorneys ranging 

from GS-13 to SES.

In Fiscal Year 2017, twenty Coast Guard officers completed the Navy Basic Lawyer 

Course in Newport, Rhode Island. All have been or are in the process of being certified under 

Article 27(b), UCMJ. In addition, the Coast Guard sent attorneys to over forty different 

courses of instruction during fiscal year 2017, primarily at the various service JAG schools. 

Twenty-two Coast Guard officers are currently undergoing postgraduate studies to complete 

a Juris Doctor (J.D.) degree and will be certified as judge advocates at the successful 

completion of their studies. Two judge advocates are pursuing their Masters of Law (L.L.M.) 

degrees at civilian institutions. Additionally, two judge advocates are attending the Graduate 

Course at the United States Army Judge Advocate General’s Legal Center and School and 

another is a fellow at the Center for Law and Military Operations at TJAGLCS. 

U. S. COAST GUARD COURT OF CRIMINAL APPEALS

The judges on the U.S. Coast Guard Court of Criminal Appeals are:

Chief Judge Lane I. McClelland

Judge Kurt Brubaker

Judge John F. Havranek

Judge Brian M. Judge 

Judge Robert W. Bruce 
129

Judge John Luce

Judge Scott Herman

Judge Brubaker joined the Court in Fiscal Year 2017 and serves as the second full-time, 

civilian judge on the Coast Guard Court of Criminal Appeals.

MILITARY JUSTICE ORGANIZATION

Fourteen Staff Judge Advocates advise eighteen officers exercising general courtmartial jurisdiction. Those fourteen SJAs, as well as three additional independent duty SJAs 

at training centers and an SJA at the Coast Guard’s Personnel Service Command, advise 

approximately 350 officers exercising special court-martial jurisdiction. Responsibility for 

detailing trial defense counsel to general and special courts-martial rests with the Chief, 

Member Advocacy and Legal Assistance, a staff office reporting to the Deputy Judge 

Advocate General charged with providing defense and personal legal services to Coast 

Guard members. Pursuant to an inter-service memorandum of understanding, the U.S. Navy 

provides trial defense counsel for all Coast Guard courts-martial. In return, nine Coast Guard 

judge advocates are assigned to full time duty, typically two-year assignments, at various 

Navy Defense Service Offices throughout the country. 

The Coast Guard had three general courts-martial trial judges and eight collateral-duty 

special courts-martial trial judges at the end of Fiscal Year 2017. The chief trial judge details 

all military judges to Coast Guard courts-martial. 

The Office of Military Justice at Coast Guard Headquarters is responsible for 

representing the United States in all appeals of courts-martial cases and providing support to 

staff judge advocates and trial counsel throughout the Coast Guard. The office is also 

responsible for developing military justice policy for the Coast Guard, including participation 

on the Joint Service Committee on Military Justice. A Captain (O-6) serves as the Chief of 

Military Justice. A GS-15 Highly Qualified Expert is also assigned to this office and serves as 

Chief Prosecutor. Three judge advocates in the grades of O-3 and O-4 are also assigned to 

this office, supporting all office functions. For much of Fiscal Year 2017 the Office has been 

heavily involved, along with the other members of the Joint Service Committee, with 

implementation of the Military Justice Act of 2016.

Additionally, the Coast Guard’s Special Victims’ Counsel (SVC) Office is staffed by a 

senior SVC and three full-time SVC in Washington, D.C, with the Program Deputy and two 

full-time SVCs stationed in Alameda, California, and one full-time SVC stationed in Cleveland, 

Ohio. The program will continue to expand, adding two full-time SVCs at the United States 

Coast Guard Academy. Five additional Coast Guard judge advocates serve as special duty 

SVCs. This composition and assignment of SVCs helps to ensure all sexual assault victims 

receive timely and effective representation and advice. Prior to representing their first client, 

all Coast Guard SVCs attend specialized certification training and serve in an 

assistant/apprentice role.
130

MILITARY JUSTICE STATISTICS

Fiscal Year 17 16 15 14 13 12 11 10 

General Courts-Martial 13 17 19 23 09 14 06 12 

Special Courts-Martial 20 15 13 22 14 14 32 20 

Summary Courts-Martial 13 22 23 30 20 17 19 09 

Total 46 54 55 75 43 45 57 41 

ADDITIONAL MILITARY JUSTICE STATISTICS

Appendix A contains the Coast Guard, fiscal year 2017 military justice statistics.

APPELLATE REVIEW PROCESS

In Fiscal Year 2017, of the thirteen cases referred to the Coast Guard Court of Criminal 

Appeals for review under Article 66, nine complied with the Moreno post-trial processing 

timelines for convening authority’s action. In United States v. Clifft, the convening authority 

took action 155 days after sentence; in United States v. Summers, the convening authority 

took action 142 days after sentence; in United States v. Rodriguez, the convening authority 

took action 159 days after sentence; and in United States v. Rogers, the convening authority 

took action 136 days after sentence. Of the same thirteen cases, all complied with the 

Moreno standard for time from convening authority’s action to docketing with the Coast Guard 

Court of Criminal Appeals. All of these cases are still pending review.

The Coast Guard Court of Criminal Appeals met its goal of issuing an opinion within 

eighteen months or less of the date the case was referred in nineteen of the twenty-four2

cases decided in Fiscal Year 2017. In United States v. Ramos, United States v. Harpole, 

United States v. Knox, United States v. Bailey, and United States v. Hinojosa, the court 

issued its decision more than eighteen, but less than twenty months after referral. 

In Fiscal Year 2017, the Coast Guard Court of Criminal Appeals did not grant relief for 

post-trial delay in any cases, nor did they reverse any convictions as a result of command 

influence or denial of the right to a speedy review. There were no cases this fiscal year in 

which the Coast Guard Court of Criminal Appeals found a provision of the UCMJ 

unconstitutional. 

MEASURES TO ENSURE COMPETENCY OF MILITARY JUSTICE PRACTICE

The Coast Guard has taken several steps to increase trial and defense capabilities and 

to provide additional exposure to military justice litigation work for our judge advocates. To 

accomplish this, the Coast Guard has substantially increased its full-time practitioners within 

the last year.

 

2

Twenty-eight published and unpublished decisions were issued; of those, two were reassessments following a 

decision by the Court of Appeals for the Armed Forces, and two arrived at the Court under other than Article 66, 

and are therefore excluded from this analysis.
131

The Coast Guard continues to add trial and trial defense counsel billets. In accordance 

with a long-standing Memorandum of Understanding with the Navy, the Navy provides 

defense counsel for Coast Guard courts-martial, and the Coast Guard provides the Navy fulltime judge advocates to perform trial defense work. Eight Coast Guard attorneys currently 

serve as defense counsel, with a ninth position soon to be filled. While attorneys in field legal 

offices serve as trial counsel for some courts-martial, the majority of trial services are 

provided by the Legal Service Command (LSC). Fifteen judge advocates at the LSC’s east 

and west coast offices serve full-time as trial counsel, participating in the prosecution of about 

67% of the Coast Guard's courts-martial. 

Also, the Office of Military Justice provides training materials, policy guidance and 

technical support to staff judge advocates during military justice proceedings. The Office of 

Military justice assigned one judge advocate to provide on-site support to one complex courtmartial in fiscal year 2017. The GS-15, an experienced retired judge advocate, has also 

served alongside judge advocates as detailed trial counsel in highly complex courts-martial. 

Additionally, the office continues to develop training and guidance for practitioners in the field. 

In addition to military justice experience, many field legal offices develop supplemental 

litigation skills through Special Assistant U.S. Attorney (SAUSA) relationships with one or 

more U.S. Attorney offices. Collateral duty SAUSAs around the country assist in prosecution 

of a wide range of cases arising out of Coast Guard operations, from drug and migrant 

smuggling cases to environmental crimes. There are also seven full-time SAUSAs: five judge 

advocates serving in the Southern and Middle Districts of Florida, District of Puerto Rico, and 

the Central and Southern Districts of California focus on prosecution of drug and migrant 

smuggling cases, and two judge advocates serve as SAUSAs to the Department of Justice 

Offices of Aviation & Admiralty and Environmental Crimes in Washington, D.C. 

Coast Guard judge advocates are trained initially with the Navy and Marine Corps at 

the Naval Justice School, and regularly participate in trial advocacy courses offered by the 

Army, Navy, and Air Force, to include specialized courses, most particularly those dealing 

with sexual assault. The Coast Guard has also sent judge advocates to courses sponsored 

by the Department of Justice National Advocacy Center and those offered by the National 

District Attorneys Association. The other armed forces permit the Coast Guard to make use of 

their Trial Counsel Assistance Program and Highly Qualified Experts, which significantly add 

to the depth of knowledge and expertise available to Coast Guard trial counsel. 

The Coast Guard increased its full time general courts-martial judges to three, and 

continues to utilize eight collateral duty judges who hear only special courts-martial. Coast 

Guard judges are selected based on trial and staff judge advocate experience and attend 

initial training with all of the other services at the Military Judge Course at the Army's Judge 

Advocate General's Legal Center and School in Charlottesville, Virginia. Coast Guard judges 

also attend the annual Joint Military Judges training session. Several Coast Guard judges 

have pursued individual courses as well as successful completion of certificates from the 

National Judicial College in Reno, Nevada.
132

To date the Coast Guard has not tried a national security case or case referred as 

capital. Were such a case to arise, the Coast Guard would request assistance from the other 

armed forces to do so. 

The Coast Guard also provides training for civilian and enlisted legal support personnel 

to assist them in meeting legal technician and paralegal performance qualification standards 

prescribed by the Judge Advocate General. Enlisted personnel also receive training through 

the Naval Justice School’s courses and programs. 

VIEWS OF THE JUDGE ADVOCATE GENERAL ON RESOURCES

The Coast Guard is improving the resources available to its legal program to perform 

its military justice functions. Previously, the Judge Advocate General chartered a working 

group to study the Coast Guard’s military justice system and proposed ways to increase the 

proficiency of its practice. Several of those recommendations were implemented this year and 

they are already proving successful. We increased the number of full-time judges at both the 

trial and appellate levels. We have expanded the role of the Legal Service Command, 

instituting full-time trial counsel who either have the lead or assist in complex cases and 

sexual assault. We increased our defense positions and augmented the SVC program 

creating more full-time advocate positions. In a short time, the Coast Guard has realized the 

benefits of these additions but we recognize a shortfall –our administrative support. There is 

a noticeable lack of growth between the support staff and those judge advocates they serve. 

The Coast Guard is committed to exploring avenues available to ensure our judge advocates 

are properly supported with administrative personnel who are trained and competent, 

especially as the complexity of courts-martial increases with the implementation of the Military 

Justice Act of 2016. 

S. J. ANDERSEN

Rear Admiral, U. S. Coast Guard

Judge Advocate General of the Coast Guard
133

Appendix A: U. S. Coast Guard Courts-Martial/NJP Statistics for 

 October 1, 2016 to September 30, 2017 (FY 2017) 

APPENDIX A: U.S. COAST GUARD MILITARY JUSTICE STATISTICS

Report Period: 1 OCTOBER 2016 - 30 SEPTEMBER 2017

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF 

INCREASE (+)/ 

DECREASE (-) 

OVER LAST 

REPORT

GENERAL 13 10 03 -30.77%

BCD SPECIAL 20 19 01 +24%

NON-BCD SPECIAL* 00 00 00 00

SUMMARY 13 12 01 -69.23%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER LAST 

REPORT 

-17.39%

PART 2 – DISCHARGES APPROVED

GENERAL COURTS-MARTIAL 

 NUMBER OF DISHONORABLE DISCHARGES 11

 NUMBER OF BAD-CONDUCT DISCHARGES 05

 NUMBER OF DISMISSALS 01

SPECIAL COURTS-MARTIAL 

 NUMBER OF BAD-CONDUCT DISCHARGES 07

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL 

COURTS-MARTIAL

04

FOR REVIEW UNDER ARTICLE 66 – BCD 

SPECIAL COURTS-MARTIAL

06

FOR EXAMINATION UNDER ARTICLE 69 –

GENERAL COURTS-MARTIAL

04

PART 4 – WORKLOAD OF THE COAST GUARD COURT OF CRIMINAL APPEALS

TOTAL ON HAND BEGINNING OF PERIOD 24

 GENERAL COURTS-MARTIAL 17

 BCD SPECIAL COURTS-MARTIAL 12

REFERRED FOR REVIEW 29

 GENERAL COURTS-MARTIAL 17

 BCD SPECIAL COURTS-MARTIAL 12

TOTAL CASES REVIEWED 28

 GENERAL COURTS-MARTIAL 16

 BCD SPECIAL COURTS-MARTIAL 12

 

 As a matter of practice, the Coast Guard does not try non-BCD special courts-martial. 
134

TOTAL PENDING AT CLOSE OF PERIOD 15

 GENERAL COURTS-MARTIAL 9

 BCD SPECIAL COURTS-MARTIAL 6

RATE OF INCREASE (+)/DECREASE (-) OVER 

NUMBER OF CASES

REVIEWED DURING LAST REPORTING PERIOD

0%

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE U.S. COAST GUARD COURT OF 

 CRIMINAL APPEALS (CCA)

NUMBER 29

PERCENTAGE 100%

PART 6 – ACTIONS OF THE U.S. COURT OF APPEALS FOR THE ARMED FORCES

 (CAAF)

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO 

CAAF 7/12

58.3%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER 

PREVIOUS REPORTING PERIOD 

+25%

PERCENTAGE OF TOTAL PETITIONS GRANTED 

3/7

43%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER 

PREVIOUS REPORTING PERIOD 

-17%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES 

REVIEWED BY CGCCA 3/12

25%

RATE OF INCREASE (+)/DECREASE (-) OVER THE NUMBER OF 

CASES REVIEWED DURING LAST REPORTING PERIOD 

+6.2%

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING 

OF PERIOD 92

RECEIVED 24

DISPOSED OF 25

 GRANTED 01

 DENIED

 NO JURISDICTION 00

 WITHDRAWN 00

TOTAL PENDING AT END OF 

PERIOD 91

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE 25

GENERAL COURTS-MARTIAL 07

SPECIAL COURTS-MARTIAL 18
135

TRIALS BY MILITARY JUDGE WITH MEMBERS 08

GENERAL COURTS-MARTIAL 06

SPECIAL COURTS-MARTIAL 02

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS 01

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 39649

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL 

PUNISHMENT IMPOSED 625

RATE PER 1,000 13.3%

RATE OF INCREASE (+)/DECREASE (-) OVER 

PREVIOUS PERIOD -24.7%