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, 2015 to September 30, 2016
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Contents

Section 1: 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
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Section 1

Joint Annual Report of the Code Committee
2

Section 1

Joint Annual Report of the Code Committee

Pursuant to the Uniform Code of Military Justice

October 1, 2015 to September 30, 2016

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 met on March 1, 2016, 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.

Chief Judge Erdmann commented that the 2016 meeting of the Code Committee 

may be the final meeting due to pending legislation to create a Military Justice Review 

Panel composed of 13 members meeting periodically for comprehensive reviews and 

more frequently for focused reviews. This change is pending in the proposed Military 

Justice Act of 2016.

After approving the minutes of the 2015 Code Committee meeting, Major Harlye 

Carlton, Executive Secretary of the Joint Service Committee on Military Justice (JSC),

provided a briefing on the work of the JSC.

Major Carlton noted that the JSC updated its internal operating procedures and 

created a new external website (http://jsc.defense.gov) which is available to the public 

with updated RCMs and MREs. The website allows for public comments to promote

transparency for the public. 

Executive Order (EO)13696, was implemented as of June 17, 2015. There have 

also been two supplementary EOs that have been published in the Federal Register. 

The JSC completed its 2015 annual review and reviewed 64 comments. It has also

begun the 2016 annual review. Major Carlton noted that suggestions or comments can 

be made at anytime through the JSC website. 

Proposed Executive Order 2015 proposes change to RCMs, MREs, and a few

sections in Part IV. One thing to note is that one FY-16 National Defense Authorization 

Act (NDAA) requirement included in PEO 2015 requires implementation by May 23,

2016. The JSC is hopeful that the EO will be signed by that date.

Notable provisions of PEO 2015 include:
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RCM 104: SVC/VLCs cannot be given negative fitness reports because of zealous 

advocacy in the representation of their clients.

RCM 306: Victim preference on jurisdiction. The convening authority must allow victims 

of sexual assault in the United States to express their opinions on whether they would 

prefer the case to be tried by court-martial or to have civilian authorities take jurisdiction. 

RCM 705: Victim consultation on pretrial agreements. This would require that the 

convening authority provide victims an opportunity to provide input on pretrial 

agreements. While the victim must be provided the opportunity for input, and the 

convening authority must consider it, the victim’s input is not binding on the convening 

authority. 

RCM 907: Failure to state an offense. This is a recommendation based on CAAF’s 2012 

holding in United States v. Humphries on the issue of waiver of the failure to state an 

offense.

RCM 1103: Preparation of verbatim transcripts. The JSC is proposing that verbatim 

transcript requirements align with jurisdictional maximum of special courts-martial.

RCM 1107: FY-14 NDAA limits on CA actions. There are no substantive changes to 

Article 60, but since last year’s implementation of RCM 1107, the JSC has received

comments from practitioners about how it can ensure clarity, e.g., when a convening 

authority can order a rehearing, and the JSC has suggested changes along those lines. 

RCM 1203: Procedures for victims’ writs of mandamus. The FY-16 NDAA required that 

the President promulgate rules for enforcing Article 6b rights. Therefore, the JSC 

recommends amending RCM 1203 to require the Judge Advocates General establish 

means by which victims can petition for writs of mandamus from the Courts of Criminal 

Appeals.

MRE 304: The JSC recommended clarifying that not every element or fact in a 

confession or admission must be independently corroborated for it to be admitted into 

evidence.

MRE 311: Exclusionary rule. The JSC proposes changes to comply with Supreme Court 

case law that the exclusionary rule should be applied to exclude evidence from a search 

or seizure only if the exclusion would deter future unlawful searches and seizures, and 

that the benefits of deterrence would outweigh the costs to the justice system. 

MRE 504: Spousal Privilege. The JSC proposes making the spousal privilege gender 

neutral and to add clarification on the application of the privilege. 

The JSC also suggest other changes to the Military Rules of Evidence to align them 

with Federal Rules of Evidence changes. 
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Part IV proposed changes in PEO 2015 include making punitive discharges mandatory 

for certain sexual assault offenses and limiting criminalization of certain language in 

communication of threat allegations.

Major Carlton also briefed the committee on the following JSC studies:

• Collateral Misconduct Subcommittee. The JSC created this subcommittee which

conducted an intensive 6-month study regarding whether to recommend 

automatic immunity for a victim’s collateral misconduct in sexual assault cases. 

• A study into the extension of SVC/VLC services to victims not eligible for legal 

assistance services. This study has been completed and the results have been 

provided to Congress.

• Mental Health Balancing Study. This is an ongoing study focused on the release 

of mental health records that considers whether additional guidance should be

provided to the field.

Regarding proposed legislation, Major Carlton informed the committee of the 

Military Justice Act of 2016 proposed by the Military Justice Review Group. If the act is

implemented with a one-year implementation timeline, the JSC would have about 2 1⁄2 

months to get the completed proposed EO into the Federal Register to allow for a public 

comment period. The JSC also assisted the Sentencing Interim Guidance Working 

Group (SIG). This group is working on sentencing parameters and criteria. There is a 

four-year guideline requirement, but interim guidance is required within one year. The 

SIG is made up of a group of military judges, who are starting this work ahead of time.

The 2016 Manual for Courts-Martial

Maj Carlton noted that the JSC is meeting regularly to review the MCM to get it 

ready for publication. Their hope is to get the manual out as quickly as possible, but 

each time the committee nears publication it seems there is new EO on the horizon. 

Now with PEO-15 likely getting signed, the JSC is also working to get an electronic 

MCM available that will allow practitioners to get have access to the most updated 

manual.

Briefings from the services:

Army

Lieutenant General Darpino began by noting that the Army was comprised of

about 508,000 active duty personnel in FY-14, about 490,000 in FY-15 and the plans to 

slope down to 450,000 active duty personnel within the next few years. The Army JAG 

Corps would also be reduced in size from 1,930 down to 1,820. The reduction in size of 
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the Army JAG Corps is not proportional to the reduction in active duty forces. In addition 

to the active duty members, there are also 900 judge advocates in the National Guard

and 1,782 in the U.S. Army Reserve. The Army JAG Corps is busy deploying, and has 

about 219 judge advocates deployed worldwide in addition to judge advocates that are 

forward stationed. The number of GCM and special courts-martial has gone down from 

last year to 862 general and special courts-martial, but General Darpino noted that the 

cases are significantly more complex. The Army has 24 special victims prosecutors who 

have advised in 1,277 sexual assault cases. Additionally, there are 23 GS-11 Special 

Victims Witness Liaisons, who will sit side by side with special victims prosecutors to 

provide assistance and support to sexual assault victims. There are currently 138 active 

duty SVCs and 221 in the Reserve and National Guard. The Army plans to keep its 

growth at a minimum to focus on its current workload. 

Navy

Rear Admiral Hannink began by noting there are currently 868 active duty judge 

advocates, 27 shy of the 895 currently authorized, and that additional personnel would

be taking on victim’s legal counsel or trial counsel roles in the near future. Of the 868 

active duty judge advocates, 77 are part of the military justice litigation career track. 

There are 395 reserve judge advocates, about 50 less than what is authorized due to an

increasing rate of retention for those on active duty. The Navy also has 465 active duty 

legalmen and 151 reserve legalmen. RADM Hannink next informed the committee that 

in FY-15, the Navy VLC program assisted 1,377 sexual assault victims and participated

in 441 military justice proceedings. Navy VLCs are selected by a screening process 

and they are supervised by a full-time O-6. Some of the VLCs are military justice career 

track officers. He also noted that the Navy is focused on ensuring the best appellate 

expertise possible and the Navy is using senior litigators with specialized training for 

SVC prosecution and investigation matters. Overall, there have been fewer courtsmartial in the Navy, with a decrease in GCMs from 137 in FY-14 to 118 in FY-15;

special courts-martial have gone down from 175 in FY-14 to 157 in FY-15. There has 

been an increase in post-trial review as records of trial for Article 66 cases increased in 

FY-15. This increase was primarily accounted for in the GCM area as there were 45 

more cases for Article 66 review in FY-15 than in FY-14. Review of GCM cases went up 

from 150 to 195 in FY-15 while review of special courts-martial went down from 185 in 

FY-14 to 160 in FY-15. RADM Hannink emphasized that despite an overall decrease in 

the number of cases, the complexity of cases has increased. The percentage of GCM 

cases rose from 44% in FY-14 to 59% in FY-15. The Navy also saw an increase in the 

number of contested cases and appellate issues raised, and noticed an increase in the 

size of the average record of trial. RADM Hannink next discussed the Navy’s strategic

plan, released June 2015, that recognizes and prioritizes the need for transparency.

The plan includes updated instructions to allow for automatic release of some court 

documents to victims through VLC and the review of FOIA procedures to determine if 

certain court martial documents can be proactively released after the required redaction.

The Navy and Marine Corps judge advocate leadership continues to ensure effective

administration and oversight within the military justice system through the use of the 

Military Justice Oversight Council. This council provides the Judge Advocate General 
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and Staff Judge Advocate for the Commandant visibility on issues, trends and 

challenges facing the system and practitioners. 

Air Force

On behalf of the Lieutenant General Chris Burne, Mr. John Hartsell, Associate 

Director for the Military Justice Division, laid out three significant improvements within 

the Air Force: (1) additional manpower (2) additional training and (3) improved 

expertise. The Air Force has made significant investments in human capital and has 

provided 73 additional personnel to the Judge Advocate General’s Corps, allowing the 

Air Force to make permanent and more significant investments in the SVC program and 

to facilitate the court-martial process. To allow for the increase in personnel, the Air 

Force is accelerating the training of individuals who are already within the system rather 

than merely recruiting new personnel, with the JAG School training about 2,400 

personnel per year. Technology has assisted in the ability for advanced training at the 

JAG school by allowing for web-based training that can quickly and easily adapt to 

legislative changes. Additional expertise in the form of a Permanent Victim’s Rights and

Special Crimes Instructor has been established. This instructor is the course manager 

for special victim’s courses at the JAG school. The instructor is also the individual who 

ensures that changes within the law are quickly incorporated into the JAG school 

curriculum. Mr. Hartsell concluded that the Air Force ended FY-15 with a better trained 

and better manned force. Lastly, the Air Force continues to work on completing the 

implementation of the next generation of its case management system, the Automated 

Military Justice Analysis and Management System.

Coast Guard

RADM Poulin began by stating that there has been good stability in the Coast 

Guard, with currently 41,000 active duty individuals. Of the 41,000, 194 are active duty 

judge advocates. Twenty percent of the judge advocates are working out of specialty at 

any given time. The Coast Guard also has 90 civilian attorneys who are part of the 

Coast Guard Judge Advocate General Service. Fifty percent of the Coast Guard’s 

judge advocates come through the funded legal program while the other 50% are 

obtained through the direct commission program. The Coast Guard saw a drop in 

the number of courts-martial. In FY-14 there were 75 courts-martial and there was a 

drop in FY-15 to 55. FY-16 appears to be on track with the FY-15 numbers thus far. 

Additionally, about 40% of the cases involve at least one charge under Article 120 

UCMJ and the number of nonjudical punishment cases has dropped 25% from FY-14 

to FY-15. Despite the drop in numbers, RADM Poulin noted the increased complexity of 

the cases and the need for a full-time trial judiciary. The Coast Guard has only one 

GCM military judge, and the special court-martial judges perform that duty as a 

collateral duty. He also stated that he has added a few additional defense counsels to 

the Navy to help manage case load and the Coast Guard is trying to build a core 

prosecution team. The Coast Guard is also planning to review enlisted support to the 

legal program. The Coast Guard SVC program is now at full operating capability which 

includes 6 full-time SVC and 12 collateral duty SVC. The use of collateral duty SVCs 

are necessary due to the geographical dispersion of the Coast Guard around the 

country. RADM Poulin concluded by noting that the Coast Guard continues to work on 
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improving training, and establishing a professional development program and 

professional quality standards, and expanding the number of LLM training opportunities

to continue building career judge advocates. The Coast Guard also provided one officer 

to the Military Justice Review Group.

Marine Corps: 

Lieutenant Colonel Wissman, representing the Staff Judge Advocate to the 

Commandant of the Marine Corps, began by noting that the Marine Corps has about 

550 active duty judge advocates, with 80 trial counsel, 70 defense counsel, about 50 

special victim qualified trial counsel, and 17 special victims legal counsel. In FY-15 The

VLC program represented about 650 clients. Sixty percent involved victims of sexual 

assault, 27% were victims of domestic violence and the remaining 13% involved various 

other offenses. The number of GCMs was about the same as last year and there was a 

drop in the number of special courts-martial. Despite the drop in the number of special 

courts- martial, Lieutenant Colonel Wissman noted an increased number of contested 

and complex cases. To meet the challenges of the increased complexity of cases, the 

Marine Corps utilizes 6 highly qualified litigation experts and provides annual trial 

counsel training. This training incorporates civilian prosecutors who assist in the training 

and also provide insight. The Marine Corps initiative for this year is an operational 

advisory group that will look at military justice and other issue areas and provide 

guidance to foster improvement. 

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.

Charles E. “Chip” Erdmann

Chief Judge

Scott W. Stucky

Judge

Margaret A. Ryan

Judge

Kevin A. Ohlson

Judge

John E. Sparks, Jr.

Judge

Lieutenant General Flora D. Darpino, U.S. Army

Judge Advocate General of the Army
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Vice Admiral James W. Crawford, III, JAGC, U.S. Navy

Judge Advocate General of the Navy

Lieutenant General Christopher F. Burne, U.S. Air Force

Judge Advocate General of the Air Force

Rear Admiral Steven D. Poulin, U.S. Coast Guard

Judge Advocate General of the Coast Guard

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

Staff Judge Advocate to the Commandant of the Marine Corps

Dean Lisa M. Schenck

Public Member

Mr. James E. McPherson

Public Member
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SECTION 2

REPORT OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED 

FORCES
10

REPORT OF THE UNITED STATES

COURT OF APPEALS FOR THE ARMED FORCES

September 1, 2015 to September 30, 2016

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 

September 2015 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, Title 10, United States Code, § 946.

After Chief Judge James E. Baker completed his 15-year term on July 31, 2015, 

the Court was reduced to four judges. Until a replacement was confirmed and 

appointed in April 2016, the Court called upon one of the Court’s senior judges under 

Article 142(e) to sit with the court on some cases, and utilized the services of Article III 

judges sitting by designation under Article 142(f) in the other cases. Senior Judge 

Walter T. Cox, III, of the United States Court of Appeals for the Armed Forces sat on 

eight cases; Senior Judge David B. Sentelle of the United States Court of Appeals for 

the District of Columbia Circuit sat by designation on five cases; Senior Judge Royce C. 

Lamberth of the United States District Court for the District of Columbia sat by 

designation on seven cases; Judge Albert Diaz of the United States Court of Appeals 

for the Fourth Circuit sat by designation on four cases; and Chief Judge Frank D. 

Whitney of the United States District Court for the Western District of North Carolina sat 

by designation on two cases.

On April 19, 2016, Judge John E. Sparks, Jr., took his oath of office as a judge of 

the United States Court of Appeals for the Armed Forces, filling the vacancy left by the 

departure of Chief Judge Baker.

Two of the Court’s Senior Judges passed away in 2016. Senior Judge William H. 

Darden died on June 12, 2016, and Senior Judge H.F. “Sparky” Gierke III passed away 

on August 7, 2016. Appropriate tributes will be published in the Military Justice 

Reporter.

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 September 1, 2015 to September 30, 2016. 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 web site. The Court’s web site 

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 
11

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 

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

of 12 months.

During the September 2015 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 prepared by the Court’s staff is set forth in Appendix A.

RULES OF PRACTICE AND PROCEDURE

During the September 2015 Term, the Court approved changes to Rules 5, 

21(b)(5)(F), and 26 of the Court’s Rules of Practice and Procedure. The changes to 

Rules 5 and 21(b)(5)(F) were made to eliminate the broad references in the Rules to the 

Court’s supervisory powers.

The changes to Rule 26 regarding amicus curiae briefs were approved to 

emphasize the importance of such briefs to the Court when they provide additional 

factors for consideration, to institute a requirement that movants under Rule 26(a)(3) 

state their interest in filing and to obtain the consent of the parties to the filing. An 

additional requirement mandates that only members of the Court’s Bar or attorneys 

appearing pro hac vice are permitted to file amicus curiae briefs. Rule 26 was also 

amended to clarify that such briefs could be filed in support of petitions for grant of 

review, petitions for extraordinary relief, writ-appeal petitions, petitions for new trial, and 

the answers to such pleadings.

BAR OF THE COURT

During the September 2015 Term, 148 attorneys were admitted to practice 

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

36,784.

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 September 2015 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 

Washington and Lee School of Law, Lexington, Virginia; the University of Virginia 

School of Law, Charlottesville, Virginia; the University of Alabama School of Law, 

Tuscaloosa, Alabama; and Maxwell Air Force Base, Montgomery, Alabama. In addition, 
12

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.

CONTINUING LEGAL EDUCATION AND TRAINING PROGRAM

On March 2 and 3, 2016, the Court held its Continuing Legal Education and 

Training Program at the Washington College of Law at American University, 

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

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

Forces. He was followed by 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; a panel consisting of Senior Judge Andrew S. Effron, Director 

of the Military Justice Review Group, Dwight Sullivan, Esq., Senior Associate Deputy 

General Counsel, Department of Defense, and Major Harlye S. Carlton, U.S. Marine 

Corps, Executive Secretary of the Joint Service Committee on Military Justice; another 

panel consisting of Major General Thomas J. Romig, U.S. Army (Retired), Dean of 

Washburn University School of Law, Colonel Greg Maggs, U.S. Army Reserve, 

Professor of Law, George Washington University School of Law and Professor Stephen 

I. Vladeck of the American University Washington College of Law; John-Paul 

Schnapper-Casteras, Esq., Special Counsel for Appellate and Supreme Court 

Advocacy, NAACP Legal Defense Fund; the Honorable Margret G. Robb, Judge of the 

Indiana Court of Appeals; the Honorable David J. Waxse, Magistrate Judge, U.S. 

District Court, District of Kansas, Kansas City, Kansas; Colonel William Eckhardt, U.S. 

Army (Retired), Professor of Law, University of Missouri-Kansas City School of Law, 

Kansas City, Missouri; and Professor Susan Carle of the American University 

Washington College of Law.

Charles E. “Chip” Erdmann

Chief Judge

Scott W. Stucky

Judge

Margaret A. Ryan

Judge

Kevin A. Ohlson

Judge

John E. Sparks, Jr.

Judge
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APPENDIX A – SELECTED DECISIONS

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

September 2015 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. LaBella, 75 M.J. 52 (C.A.A.F. 2015), holding that the Air Force 

Court of Criminal Appeals lacked jurisdiction to grant the accused’s petition for 

reconsideration out of time, and the Court of Appeals for the Armed Forces lacked 

jurisdiction to consider the accused’s petition for review following denial of 

reconsideration.

United States v. Riggins, 75 M.J. 78 (C.A.A.F. 2016), holding that the offense of 

assault consummated by a battery is not a lesser included offense of sexual assault and 

abusive sexual contact.

United States v. Busch, 75 M.J. 87 (C.A.A.F. 2016), holding that 

the accused’s sentencing on a specification of sexual abuse of a child did not violate the 

Ex Post Facto Clause, even though the military judge referenced the Executive Order 

that set the maximum punishment for the offense after the date of the accused’s 

misconduct, where the military judge did not follow the Executive Order, but instead 

performed an analysis as to whether the offense of indecent exposure or the offense of 

indecent liberties with a child was the offense most closely related to the charged 

offense.

United States v. Hoffman, 75 M.J. 120 (C.A.A.F. 2016), holding that the 

accused’s attempts to solicit young boys for sex did not give the government 

investigators probable cause to believe that child pornography would be found on his 

computer equipment, and the inevitable discovery doctrine did not support the 

admission of child pornography found on electronic media illegally seized from the 

accused’s barracks room.

United States v. Wilder, 75 M.J. 135 (C.A.A.F. 2016), holding that the speedy trial 

article of the UCMJ and the speedy trial court-martial rule are distinct, each providing its 

own protection, and the fact that a prosecution meets the 120-day requirement of the 

rule does not directly or indirectly demonstrate that the government moved to trial with 

reasonable diligence for purposes of the UCMJ; similarly, the government might move 

with all reasonable diligence for purposes of the UCMJ but nonetheless violate the 120-

day court-martial rule, and when analyzing a violation of the speedy trial rule, it is the 

earliest of the actions listed in the rule with respect to a particular charge that starts the 

speedy trial clock for that charge and not some other standard such as “substantial 

information” rule regarding when the government possessed information necessary to 

charge an accused.
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United States v. Rapert, 75 M.J. 164 (C.A.A.F. 2016), holding that the offense of 

communication of a threat does not predicate criminal liability on mere negligence 

alone, but instead requires the government to also prove the mens rea of the accused. 

The accused’s conviction for communicating a threat against the President of the United 

States did not violate his First Amendment free speech rights in light of the connection 

between the accused’s speech and the military’s interests in ensuring obedience to the 

chain of command and in maintaining an effective fighting force.

United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016), holding that in a case 

involving charges of sexual assault and abusive sexual contact, the Court of Criminal 

Appeals appropriately defined the term “incapable of consenting” as lacking the 

cognitive ability to appreciate the sexual conduct in question or lacking the physical or 

mental ability to make and to communicate a decision about whether they agreed to the 

conduct.

United States v. Killion, 75 M.J. 209 (C.A.A.F. 2016), holding that violation of the 

article prohibiting the use of provoking speech depends not on the likely reaction of the 

hypothetical average person but rather on the likely reaction of an objectively 

reasonable person in the position of the persons to whom the words are addressed.

United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016), holding that a provision in a 

pretrial agreement to “waive all waivable motions” did not preclude the Court of Criminal 

Appeals from considering whether certain specifications constituted an unreasonable 

multiplication of charges. An accused has no authority to waive the statutory authority 

of the Court of Criminal Appeals to conduct a complete review of an accused’s 

conviction unless the accused waives the right to appellate review altogether.

United States v. Cooley, 75 M.J. 247 (C.A.A.F. 2016), holding that Article 10, 

UCMJ, speedy trial requirements did not apply to a charge against the accused where 

the accused was not arrested or placed into pretrial confinement for that charge, and 

that government accountability for the speedy trial clock begins to run as set forth in 

RCM 707, and not pursuant to the “substantial information” rule, overruling United 

States v. Johnson, 1 M.J. 101 (C.M.A. 1975).

United States v. Caldwell, 75 M.J. 276 (C.A.A.F. 2016), holding that a military

superior may be held criminally responsible for maltreatment of a subordinate even if 

the prosecution does not prove that the superior possessed a specific intent to maltreat. 

No mens rea beyond a general intent is required.

United States v. Martin, 75 M.J. 321 (C.A.A.F. 2016), holding that although 

human lie detector evidence is inadmissible at trial, the court will not find reversible error 

from its introduction when the accused invites its admission.

EV v. United States and Martinez, 75 M.J. 331 (C.A.A.F. 2016), holding that the 

United States Court of Appeals for the Armed Forces lacked jurisdiction to decide the 

merits of the alleged victim’s petition for a writ of mandamus to address the order of the 
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military judge to release her mental health records since Article 6(b), UCMJ, was a clear 

and unambiguous grant of jurisdiction to the Courts of Criminal Appeals and makes no 

mention of the Court of Appeals for the Armed Forces.

United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), holding that MRE 413, the 

military rule of evidence governing the use of evidence of similar crimes in a sexual 

assault case, did not permit the government to use the charged sexual misconduct to 

show the accused’s alleged propensity to commit the charged sexual misconduct.

United States v. Harrell, 75 M.J. 359 (C.A.A.F. 2016), holding that during a traffic 

stop an officer may continue detention where he has reasonable suspicion of criminal 

activity sufficient to justify the detention, and conducting a dog sniff did not violate the 

Fourth Amendment where the military judge did not err in finding that the dog’s nose did 

not extend into the passenger compartment of the vehicle.

United States v. Witt, 75 M.J. 380 (C.A.A.F. 2016), holding that the participation 

of disqualified appellate judges of the Court of Criminal Appeals in the reconsideration 

of its opinion produced a significant risk of undermining the public’s confidence in the 

judicial process in a capital murder case, and the decision on reconsideration to affirm 

the death sentence would be vacated and the case remanded for a sentencing 

rehearing in accordance with the court’s original decision to set aside the sentence.

United States v. Howell, 75 M.J. 386 (C.A.A.F. 2016), holding that the 

Government’s action of paying the accused at a reduced rate pending his rehearing did 

not constitute illegal pretrial punishment in the absence of a showing of punitive intent 

and where the Government was acting in a good faith position supported by regulations, 

statutes, and case law.

United States v. Sterling, 75 M.J. 407 (C.A.A.F. 2016), holding that contrary to 

the holding of the Court of Criminal Appeals, the Religious Freedom Restoration Act 

applies in the military context, but that the accused failed to establish a prima facie case 

under the statute at trial because she did not identify a sincerely held religious belief in 

placing signs at her work space and how those signs were important to her exercise of 

religion or how their removal substantially burdened her exercise of religion in some 

other way.
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USCAAF STATISTICAL REPORT

SEPTEMBER 2015 TERM OF COURT

CUMULATIVE SUMMARY

CUMULATIVE PENDING SEPTEMBER 1, 2015

Master Docket 17

Petition Docket 80

Miscellaneous Docket 0

TOTAL 97

CUMULATIVE FILINGS

Master Docket 70

Petition Docket 719

Miscellaneous Docket 37

TOTAL 826

CUMULATIVE DISPOSITIONS

Master Docket 57

Petition Docket 727

Miscellaneous Docket 34

TOTAL 818

CUMULATIVE PENDING OCTOBER 1, 2016

Master Docket 30

Petition Docket 72

Miscellaneous Docket 3

TOTAL 105

OPINION SUMMARY

CATEGORY SIGNED PER CURIAM MEM/ORDER TOTAL

Master Docket 27 0 30 57

Petition Docket 0 0 727 727

Miscellaneous Docket 2 0 32 34

TOTAL 29 0 789 818
17

MASTER DOCKET SUMMARY

PENDING AT BEGINNING OF TERM 17

FILINGS

Petitions granted from the Petition Docket 61

Certificates filed 9

Mandatory appeals filed 0

Remanded/Returned cases 0

TOTAL 70

DISPOSITIONS

Affirmed 16

Reversed in whole or in part 40

Certificates dismissed 1

TOTAL 57

PENDING AT END OF TERM

Awaiting briefs 4

Awaiting oral argument 17

Awaiting lead case decision (trailer cases) 9

Awaiting final action 0

TOTAL 30

PETITION DOCKET SUMMARY

PENDING AT BEGINNING OF TERM 80

FILINGS

Petitions for grant of review filed 719

Petitions for new trial filed 0

Returned cases 0

TOTAL 719

DISPOSITIONS

Petitions for grant of review denied 655

Petitions for grant of review granted 66

Petitions for grant of review withdrawn 4

Petitions for grant of review dismissed 2

TOTAL 727
18

PENDING AT END OF TERM

Awaiting pleadings 19

Awaiting staff review 26

Awaiting final action 27

TOTAL 72

MISCELLANEOUS DOCKET SUMMARY

PENDING AT BEGINNING OF TERM 0

FILINGS

Writ appeals sought 17

Writs of habeas corpus sought 5

Writs of coram nobis sought 3

Other extraordinary relief sought 12

TOTAL 37

DISPOSITIONS

Petitions or appeals denied 29

Petitions or appeals granted 0

Petitions or appeals dismissed 5

Petitions or appeals withdrawn 0

TOTAL 34

PENDING AT END OF TERM

Awaiting briefs 0

Awaiting staff review 0

Awaiting final action 3

TOTAL 3
19

PETITIONS FOR RECONSIDERATION

ALL CASES DISPOSITIONS

Begin pending 0 Denied 10

Filed 14 Granted 0

TOTAL 14 Dismissed 0

TOTAL 10

End Pending 4

MOTIONS

ALL MOTIONS DISPOSITIONS

Begin Pending 6 Granted 301

Filed 362 Denied 62 

TOTAL 368 Dismissed 0

TOTAL 363

End Pending 5
20

Petition Docket Term Pending

240 266 254

213

91 87

69

131

168

80 72

0

100

200

300

400

500

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
21

Master Docket Term End Pending

38

53

20

30 30

71

23 28 28

17

30

0

50

100

150

200

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
22

Oral Arguments

74

56

65

47 43 47

35 36 32

37

28

0

25

50

75

100

125

150

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
23

Total Opinions per Year

51

76

25

55

41

65

37

46

27

43

32

46

23

33 34 39

26

32

26

37

11

29

0

25

50

75

100

125

150

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

TOTAL SEPARATE OPINIONS (CONCUR, CONCUR IN THE RESULT, AND DISSENT)

TOTAL COURT OPINIONS
24 

Days from Petition Filing to Grant 

171

152

160 162

108

61 64

81

90

94

71

0

25

50

75

100

125

150

175

200

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
25 

Days from Petition Filing to Oral Argument 

150

126 132

114

136 131 140 131

102

129 143

0

50

100

150

200

250

300

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
26 

Days from Oral Argument to Final Decision 

148

85 86 83

99

88

73

97 92

115

98

0

50

100

150

200

250

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
27 

Days from Petition Filing to Final Decision 

93

391

94

237

102

261

107

241

65

238

42

206

42

147

48

205

65

174

71

243

47

146

0

50

100

150

200

250

300

350

400

450

500

550

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

PETITION DOCKET (DENIAL/DISMISSAL/WITHDRAWAL)

MASTER DOCKET(GRANTED/CERTIFIED/CAPITAL CASES)
28 

Total Petitions Filed per Year 

1006

937

836 856

721 700

802 806 853 789 719

0

250

500

750

1000

1250

1500

1750

2000

2250

2500

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
29

SECTION 3

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE ARMY
30

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE ARMY

OCTOBER 1, 2015 TO SEPTEMBER 30, 2016

 In fiscal year 2016 (FY16), 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 17 visits to installations and 

commands in the United States and overseas to discuss military justice issues with 

commanders and their respective Staff Judge Advocates (SJAs). 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, legislation, legal opinions, and related criminal 

law actions. 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 Courts-Martial (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 congressional inquiries from the President, Congress, Department of 

Defense (DoD) and the Army Staff; responding to congressional 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 and 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. 
31

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), which 

consists of membership 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 and sustainable 

solutions. In FY16, some of the issues worked on, with solutions and ways ahead 

provided, included a complete update of the Special Victim Prosecutor (SVP) policy and 

the implementation within the Army JAGC of key provisions of the Military Justice Act of 

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

 The CLD also chairs regular Criminal Law Synchronization Meetings with key 

criminal law stakeholders such as those in the MJIC above. These synchronization 

meetings were invaluable in bringing the JAGC criminal law leaders together, not only to 

coordinate criminal law training across the JAGC, but also to discuss new criminal law 

initiatives that could improve and sustain the practice of military justice in the Army. 

Synchronization provides unity of effort and situational awareness on all criminal law 

training across multiple venues, civilian and military, allowing trial advocates to more 

easily plan for their attendance at military justice training events. In FY16, a thorough 

review of all training was conducted. In addition, a model training calendar for use by 

military justice personnel in the field was developed and sent to practitioners; 

appropriate integration of special victims counsel training into training with trial and 

defense counsel was coordinated and accomplished; and a proposal to provide outside 

evaluation of military justice training by experts from civilian organizations was studied.

 

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

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

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

positions. To date, 1,445 judge advocates have been awarded skill identifiers: 759 

basic, 501 senior, 200 expert, and 85 master military justice practitioners. Importantly 

during FY16, ASI applicants were instructed to ensure that any 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 

FY14 FY15 FY16

Congressional and other inquiries 155 120 148

Officer Dismissals 26 18 32

Article 69 and other reviews 196 68 137

Freedom of Information/Privacy Act Requests 32 16 23 
32

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 

Evidence (Mil. R. Evid.) 311, 505, 506, 513, and 514. It was a big year for EO’s – the 

President signed three of them; EO 13696 on June 17, 2015; EO 13730 on May 20, 

2016 and EO 13740 on September 16, 2016. Copies of PEOs and EOs are located on 

the JSC webpage at http://jsc.defense.gov. The JSC is currently reprinting the MCM. 

This 2016 MCM captures the new Articles 120, 120b, and 120c and all the related 

conforming changes as well as mandated changes in the FY12, FY13, FY14, FY15, and 

FY16 NDAAs. 

 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 enacted the Military Justice Act of 2016 (MJA ’16) when 

he signed the FY17 NDAA. 

 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; 

creating a new military judge alone special court-martial; designating fixed number of 

panel members, 4 for special courts-martial, 8 for general courts-martial, and 12 for 

capital cases; an increased required number of votes for a guilty finding; provides a 

Soldier who was convicted by members to choose to be sentenced either by those 

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

streamlining the post-trial process; increasing the military judges authority during posttrial; expanding an Accused’s right for appellate review; and many others. Previously, 

the CLD provided three dedicated MJRG working group members to work through this 

expansive overhaul. Currently, we have one dedicated MJRG working group member 

(O5), who, along with members from the other Services, painstakingly worked through 

drafting changes and educated the JSC members on the changes and consequences of 

these changes. 

 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 is to conduct an 

independent review and assessment of judicial proceedings involving adult sexual 

assault and related offenses since the 2012 UCMJ amendments. The JPP began 

holding monthly public hearings in August 2014 and has sent the Services and the DoD 
33

10 sets of Requests for Information. Numerous Army judge advocates and civilian 

attorneys have testified during JPP public hearings. The JPP released its initial report 

on February 4, 2015. In 2016, the JPP released four reports: Restitution and 

Compensation for Military Adult Sexual Assault Crimes; Article 120, UCMJ; Retaliation 

Related to Sexual Assault Offenses; and Statistical Data Regarding Military Adjudication 

of Sexual Assault Offenses. Finally, it released a subcommittee report on Article 120 of 

the UCMJ (December, 2015) and a subcommittee report on Military Defense Counsel 

Resources and Experience in Sexual Assault Cases (December, 2016). 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.

 The CLD is responsible for the revision and publication of Army Regulation (AR) 27-

10, Legal Services, Military Justice. In May, 2016, CLD published an updated AR 27-

10, replacing the version from October, 2011. This revision incorporated major changes 

that had occurred to our military justice practice landscape over the past several years. 

 The CLD is continuously striving to improve its trial advocacy training programs. In 

conjunction with instructors from TJAGLCS, the CLD accomplished the first major 

update of its trial advocacy training manual in twenty years. With this update, The 

Advocacy Trainer will be fully digitized. It will also include 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 has recently begun a major initiative 

involving establishing partnerships with large civilian prosecutors’ offices and other 

training organizations with a national footprint. 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, allows Army training officers to 

emulate best practices from those trial practice instructors. 

THE JUDGE ADVOCATE GENERAL’S LEGAL CENTER AND SCHOOL

 The mission of the Criminal Law Department (CLD) 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 CLD 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 CLD 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 
34

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, and the General Officer 

Legal Orientation Course (GOLO). Except for the 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 modeled after the training conducted at 

the Department of Justice National Advocacy Center (NAC). 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 

CLD further refined the course by continuing to develop the role and involvement of the 

SVC in the fact pattern and by attending an advocacy course at the NAC, incorporating 

more technology into the instruction and ensuring TJAGLCS instruction remains on the 

cutting edge of advocacy education. To add realism to the intensive training, students 

must interview 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 CLD continued to develop and improve the SVC Course, offering one child-SVC 

Course and two adult-SVC Courses last year. As part of that effort, the CLD sent one 

professor to attend the SVC Course taught by the Air Force JAG School in Montgomery, 

Alabama. Through the Army SVC Program Manager, the CLD coordinates with and 

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

training among the services in this burgeoning area of law. 

 The adult-SVC Course is part of the certification process before Judge Advocates 

are authorized to serve as SVC. Students learn best practices for working with sexual 

assault victims, how crime impacts victims, how to work with law enforcement and multidisciplinary 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. 

Two capstone events in the adult-SVC course include a roundtable discussion where 

actual sexual assault victims discuss their experiences and the assistance they received 

from their SVC and a practical exercise where students interact with a client-victim roleplayer. The adult course is a prerequisite for the child-SVC Course which focuses on: 
35

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 CLD assists in the 

implementation and education of those policies and makes recommendations for policy 

changes and improvements to the SVC Program Manager. 

 The CLD presented the Forty-Fourth Kenneth J. Hodson Lecture in Criminal Law, 

hosting the Honorable James E. Baker, former Chief Judge of the United States Court 

of Appeals for the Armed Forces. The CLD 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; 

the Navy-Marine Military Judge Sexual Assault Training; and two Reserve Component 

off-sites. The CLD also continued its digital outreach by developing a computer 

application for SVCs to use with child victims, importing its school website to a new 

platform that is open to the public, and regularly updating and responding to questions 

from the field on the JAG milsuite site.

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 62, 

UCMJ, and Petitions for Extraordinary Relief. In FY16, 420 records of trial and over 

1,500 motions and briefs were referred to one of the three judicial panels comprising 

ACCA for judicial review. The average processing times for those courts-martial from 

sentencing to convening authority action was 154 days. In 164 of those cases, initial 

action was completed by the convening authority within the 120 days prescribed by 

United States v. Moreno. Three hundred sixty-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 595 cases in FY16, with an 

average processing time of 325 days from receipt of the record of trial by the clerk of 

court to decision by ACCA. Of the 595 decisions, 526 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 OTJAG CLD, the Office of the Clerk of Court also processed 65 

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

Court served ACCA decisions upon all personnel not in confinement and coordinated 

with military confinement facilities for service of confined Soldiers. The office closed 

879 courts-martial cases during the past year prior to their retirement to the archives.
36

 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 FY16, the office uploaded more than 213 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, ACCA receives many expedited requests from 

the Federal Bureau of Investigation’s National Instant Background Check System.

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

 FY14 FY15 FY16

Freedom of Information Act 536 661 562

Privacy Act 217 210 251

Certified Copies of Convictions 72 75 108

Total Number of Requests: 804 946 921

 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, 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.
37

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

admission to ACCA bar both for military and civilian counsel. In FY16, the office 

admitted 34 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.

 The Army Court conducted five arguments through its outreach program. The cases 

were argued at the following locations: George Washington University, Washington, 

DC; Ohio State University, Columbus, OH; Michigan State University, Lansing, MI; 

Florida International University, Miami, FL; Boston University, Boston, MA. Additionally, 

as part of the CAAF outreach program, the Army’s Government and Defense Appellate 

Divisions argued one case at the at the University of Virginia, Charlottesville VA. 

Outreach arguments are an exceptional tool to utilize which increases understanding 

and familiarity with the military justice system to civilians that may have very little 

experience with our system. These strategic communication efforts enhance the Army 

and JAGC throughout the civilian audiences.

Trial Judiciary

Military judges of the Trial Judiciary presided over 815 courts-martial in FY16, a 

6.9% decrease from FY15. However, the percentage of contested cases and the 

complexity of these cases continued to rise, driven partially by the increased number of 

serious cases, including sexual assault and sex offense related prosecutions.

 Army trial judges from Germany continue to provide judicial support in deployed 

environments, with eight courts-martial tried in Kuwait during this period, adding to a total 

of 981cases tried in combat theaters of operation (Iraq, Kuwait, and Afghanistan) since 

May 2003. 

 The Trial Judiciary continued its ongoing effort to keep DA Pamphlet 27-9, Military 

Judges’ Benchbook (Benchbook) current, which is used by all Services, approving 

changes that addressed: 1) Article 32 preliminary hearing waivers in pretrial 

agreements; 2) kidnapping in light of U.S. v. Sneed, 74 M.J. 612 (Army Ct. Crim. App. 

2015); 3) reckless endangerment in light of U.S. v. Gutierrez, 74 M.J. 61 (C.A.A.F. 

2015); 4) Mil. R. Evid. 413 and 414 instructions in light of U.S. v. Hills, 75 M.J. 350 

(C.A.A.F 2016); and 5) grounds for challenge of court-martial members. 

 

 An updated version of the Benchbook, along with links to the electronic version of 

that updated Benchbook, court dockets, and other judiciary related documents and 

resource materials, can be found on the Trial Judiciary homepage at 

www.jagcnet.army.mil/USATJ#.

 Military judges attended the Joint Military Judges’ Annual Training at Maxwell Air 

Force, Alabama and the annual Trial Judiciary Sexual Assault Training at Fort Belvoir, 
38

Virginia. The Trial Judiciary also continued its long-standing relationship with the 

National Judicial College, sending a select number of military judges to judicial 

education courses at this world-class institution. 

 Military judges continued playing an active role in their military and civilian 

communities, speaking to grade and high school audiences, local bar associations and

civic organizations, law school classes and state bar continuing legal education 

courses. Members of the Trial Judiciary also served as guest lecturers at TJAGLCS 

and the Defense Institute of International Legal Studies. Other notable achievements

by the Trial Judiciary included:

*Publication of an article on sentencing theories in The Army Lawyer, entitled 

“Punished as a Court-Martial May Direct: Making Meaningful Sentencing 

Requests.”

*The 59th Military Judge Course, jointly conducted by the Trial Judiciary and 

TJAGLCS, graduated 43 Army, Navy, Marine Corps, Air Force and Coast Guard

students (and two Pakistani judges) on April 29, 2016, and invested them as new

military judges.

U.S. ARMY TRIAL DEFENSE SERVICE

 In FY16, approximately 440 Active and Reserve Component (RC) judge advocates

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

approximately 150 on active duty; 150 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 40 active 

duty installations worldwide and approximately 100 reserve component locations.

 

 The TDS detailed one or more counsel to every Army special and general courtsmartial referred in FY16. In addition, TDS counsel assisted Soldiers facing other 

military justice related adverse administrative actions. 

The FY16 active duty caseload was as follows:

General and Special Courts-Martial: 896

Administrative Boards: 1194

Nonjudicial Punishment: 24,686

Military Justice Consultations: 30,003

 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 Kuwait and Qatar, with defense counsel traveling from 

there into Afghanistan and Iraq, or elsewhere, as needed.
39

 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 the 

majority of states west of the Mississippi River along with Guam, Hawaii and Alaska.

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 40 enlisted paralegals stationed in 50 

states, the District of Columbia, and three territories. 

 The DCAP is the training branch of TDS. In FY16, 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 current trends in military justice, with a focus on sexual assault 

litigation. Regional DC and senior DC from the Active, Reserve, and Guard also 

gather together annually to receive instruction on their duties as leaders in TDS. 

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

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

Symposium.

 In FY16, DCAP received over a 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 ACCA and the Court 

of Appeals for the Armed Forces (CAAF). 

 Finally, in addition to providing training and advice, DCAP published the 6th Edition 

of DC 101 Deskbook and distributed it to all newly-assigned TDS counsel. The DCAP 

also published the 3rd Edition of DC 201 Deskbook. Counsel were further kept abreast

of all major developments through email updates and a series of updates called “DCAP 

Sends.”

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, 
40

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 

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

Additionally, GAD oversees the operations of the TCAP.

In FY16, GAD filed 622 briefs at ACCA, including 363 assignment of error 

responses, 13 specified issue briefs, 16 supplemental briefs, nine government appeals, 

and one extraordinary writ petition. It filed 430 responses to petitions for grant of

review and 23 briefs at CAAF, including 14 final briefs, four extraordinary writs, and five 

petitions for reconsideration. The GAD appellate attorneys argued 30 cases before 

ACCA and six cases before CAAF.

In FY16, 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 seven military attorneys, three civilian Special 

Victim Litigation Experts, a senior paralegal noncommissioned officer, and a special 

victim witness liaison program manager, developed and delivered 40 training events for 

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

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

Strategies for Members Cases; 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; Advanced Paralegal Course; and, the Special Victim Witness 

Liaison Course. The TCAP Team also traveled to 14 Army installations to conduct two 

to three day outreach training events, as well as two, 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 four

iterations of the New Prosecutor Course (NPC) and two iterations of the Military Institute 

for the Prosecution of Sexual Violence Course (MIPSV). NPC 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. NPC 

and MIPSV together prepare new counsel for the ITAC taught at TJAGLCS. Following 

attendance at NPC, MIPSV, and ITAC, counsel with 18 months or more of court-martial 

practice are qualified to attend TCAP’s capstone training event - the Sexual Assault 

Trial Advocacy Course (SATAC). The SATAC is a two-week trial advocacy course 

focusing on the fundamentals of trial advocacy in the context of litigating special victim 
41

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 23 SVPs, 23 SVNs, and 23 SVWLs 

located at the Army’s 21 largest installations. 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 19 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 700 cases. These cases 

are moving through the various stages of the appellate process, either recently received 

at DAD, pending action by ACCA or CAAF, or awaiting final action and discharge from

the Army. Approximately 146 cases are pending review and submission to ACCA. 

 Last year, DAD filed 573 briefs with ACCA. The DAD also filed 474 briefs with 

CAAF. Appellate counsel raised assignments of error in approximately 45% of these 

cases. Counsel also argued 30 cases at ACCA and eight at CAAF. 
42

 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. Hennis, ARMY 20100304. Master Sergeant Hennis was tried at 

court-martial and sentenced to death after being tried twice and acquitted once in the 

State of North Carolina. Appellate defense counsel filed a reply brief over the 48 

assignments of error, filed over 25 motions, and conducted a ninety-minute oral 

argument on May 6, 2016. The Army Court issued its opinion on October 6, 2016 

affirming the findings and sentence. The appellate defense counsel has filed a motion 

to vacate the ACCA opinion due to an improperly constituted panel. In the alternative, 

appellate defense counsel is preparing a motion for reconsideration citing at least eight 

assignments of error.

 United States v. Akbar, USCA Dkt. No. 13-7001/AR, ARMY 20050514. In one of two 

Army capital cases currently on direct appeal, the CAAF considered 59 assignments of 

error raised by Sergeant (SGT) Akbar. After CAAF affirmed the case on August 19, 

2015, SGT Akbar filed a petition for a Writ of Certiorari with the US Supreme Court 

questioning whether the President, rather than Congress, had the statutory authority to 

prescribe the aggravating-factor elements that permit a court-martial to impose a death 

sentence on a member of the armed forces. The Court denied his petition on October 

3, 2016. 

 United States v. Manning, ARMY 20130739. Private First Class (PFC) Manning was 

charged with 22 offenses pertaining to the wrongful release of classified documents. A 

military judge sitting as a general court-martial found PFC Manning guilty of theft of 

government property, conduct prejudicial to good order and discipline and of a nature to 

bring discredit upon the armed forces, violations of the Espionage Act, the Computer 

Fraud and Abuse Act, and other Army regulations. An appellate brief was filed with 

ACCA on May 18, 2016. The government’s response was due to ACCA on December 

14, 2016, but additional government filing extensions are possible. On January 17, 

2017, President Obama commuted PFC Manning’s sentence to time served plus 120 

days. 

 United States v. Hills, USCA Dkt. 15-0767/AR, ARMY 20130833. Sergeant Kendell 

Hills was convicted of one specification of abusive sexual contact in violation of Article 

120, UCMJ and acquitted of two specifications of sexual assault in violation of Article 

120, UCMJ. The ACCA affirmed the findings and the sentence. The CAAF granted 

SGT Hills’ petition to review the issue of whether the military judge abused his discretion 

by granting the Government’s motion to use the charged sexual misconduct for Mil. R. 

Evid. 413 purposes to prove propensity to commit the charged sexual misconduct. The 

CAAF held that because the evidence of the charged sexual misconduct was already 
43

admissible in order to prove the offenses at issue, the application of Mil. R. Evid. 413, a 

rule of admissibility for evidence that would otherwise not be admissible, was error. 

Neither the text of Mil. R. Evid. 413 nor the legislative history of its federal counterpart 

suggests that the rule was intended to permit the government to show propensity by 

relying on the very acts the government needs to prove beyond a reasonable doubt in 

the same case. The CAAF’s holding has impacted multiple cases on appeal and at 

court-martial, as the use of charged misconduct to show propensity has been common 

practice in the Army.

 United States v. Caldwell, USCA Dkt. 16-0091/AR, ARMY 20140425. Sergeant First 

Class Djoulou K. Caldwell was convicted of maltreatment in violation of Article 93, 

UCMJ. The CAAF granted review to determine whether the military judge’s instructions 

were plainly erroneous in light of the Supreme Court’s holding in Elonis v. United States, 

135 S. Ct. 2001, 192 L. Ed. 2d 1 (2015). The CAAF found the judge’s instructions were 

not plainly erroneous as a matter of law because of: (1) the unique nature of the offense 

of maltreatment in the military requires the government to prove general intent in order 

to obtain a conviction under Article 93, UCMJ, thereby satisfying the key principles 

enunciated by the Supreme Court in Elonis; and (2) the military judge’s instructions 

sufficiently flagged for the panel the need to consider this general intent mens rea 

requirement when determining the guilt or innocence of the accused. Sergeant First 

Class Caldwell then filed a petition for a Writ of Certiorari with the US Supreme Court 

questioning whether Elonis and its reasoning applied to all similar federal criminal 

statutes or whether, as the court of appeals reasoned, Carter v. United States, 530 U.S. 

255 (2000) creates a class of “general intent” crimes that fall outside the reach of Elonis

and for which proof of negligence is sufficient to convict. The Court denied his petition 

on October 3, 2016. 

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

conscience 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 FY16, the Military Personnel Litigation Branch was involved in 15 

habeas corpus cases, with seven cases still active and eight 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.
44

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 

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 

Judgement 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 
45

allow him to exhaust his unexhausted claims in the military courts or to refile his petition 

without the unexhausted claims. 

 Andriozzi v. Kathryn Tracy (D. Ariz.) Petitioner, Armand Andriozzi, was convicted in 

two separate courts-martial in 1998 and sentenced to a total of 42 years confinement 

and a dishonorable discharge. Following his appeals, he was discharged from the Army 

and transferred to the Bureau of Prisons to serve the remainder of his sentence. 

Andriozzi filed a petition for habeas corpus, first with ACCA and then in United States 

District Court for the District of Arizona, alleging an Article 12 violation for being housed 

with foreign nationals and requesting 5 days credit for each day of a violation. The 

government briefed that Andriozzi received full and fair consideration and therefore the 

district court should not grant his petition. Alternatively, the government argued that 

Article 12 does not apply to Andriozzi since he is no longer a member of the Armed 

Forces. Lastly, even if, the Court considered petitioner’s claims on the merits, he had 

failed to meet his burden to produce any evidence of an Article 12 violation. The 

magistrate judge’s report found for the government based upon full and fair 

consideration. Petitioner filed an objection and request for assistance to gather 

evidence. The government objected and filed response. The district judge held that 

Andriozzi’s petition was the improper form for relief because he was attacking a 

condition of his confinement and not the validity or duration. The district judge stated 

that challenging conditions of confinement cannot be brought as habeas petitions but 

rather should be filed as civil rights claim. Accordingly, the Court dismissed the petition 

without addressing the merits. 

 Baldwin, et al. v. Department of Defense, et al. (E.D.Va.) Plaintiffs are 1LT Celina 

Baldwin (Army, Active Duty), Jennifer Smith (Air Force), Alyssa Rodriguez (Air Force) 

and Carmelita Swain (Army, separated from service). Plaintiff 1LT Baldwin graduated 

from West Point and alleges that during her tenure at West Point, she was raped, 

sexually assaulted and subjected to a sexist and hostile environment. Plaintiff Smith 

served in the Air Force for 18 years. During her tenure, she alleges that she was 

sexually assaulted and now suffers from PTSD. Plaintiff Rodriguez was in the Air Force 

and alleges that she was raped and that the convening authority refused to prosecute 

her rapist. She further alleges that the military justice process gave her PTSD. Finally, 

Plaintiff Swain alleges that while she was deployed as an Army Sergeant in 

Afghanistan, an NCO raped her in her barracks. She further alleges that her rapist was 

set free with no consequences and that she became disabled from PTSD and 

separated after 15 years of service. In their civil lawsuit, plaintiffs alleged the DoD 

violated their substantive and procedural due process rights, equal protection, and First 

Amendment rights by allowing non-judicially trained convening authorities who are 

“involved in creating and fostering the sexually hostile environment to control the military 

judicial process.” The plaintiffs requested injunctive relief to stop all of the alleged 

violations. Defendants filed a Motion to Dismiss for the plaintiffs’ lack of standing, lack 

of jurisdiction, and failure to state any actual constitutional or statutory claim. The court 

granted the Motion to Dismiss for four reasons. First, the court found that plaintiffs lack 

standing to seek injunctive relief because they cannot demonstrate imminent harm. 

Second, the court cannot exercise jurisdiction over plaintiffs' claims because the political 
46

question doctrine precludes the court from considering this complaint; specifically, it 

would be inappropriate for the court to rewrite the Uniform Code of Military Justice as 

plaintiffs sought. Third, the court found that this matter involves a nonjusticiable military 

controversy since plaintiffs could not demonstrate any violations of applicable military 

statutes or regulations by the relevant convening authorities. Fourth, the court found 

that plaintiffs failed to allege sufficient facts and plausible claims for relief under the 

statutes they cited, which were generally applicable to civilians and not 

servicemembers. 

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 FY16, 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) strengthening partner nation military justice systems to 

produce highly disciplined, effective coalitions for future military operations.

 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 mission-tailored pre-deployment training programs using Mobile 

Teaching Teams (MTTs). The 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, IOLD worked to build strong, disciplined coalitions for future military operations 

in part through a revamped strategic engagements policy. In FY16, the JAGC focused 

much of its strategic engagements efforts on how best to improve legal interoperability 
47

with our coalition partners. To that end, TJAG tasked IOLD to organize the first ever 

Multinational Judge Advocate General Interoperability Symposium which was held in 

Charlottesville in August, 2016. This major event brought together TJAGs and/or 

Senior Legal Advisors from 24 nations and from NATO’s military and political entities. 

The two-day gathering of nearly 80 leaders focused on a wide range of legal topics of 

interest, including lessons learned on the most effective practices for the 

administration of military justice and the manner in which military justice contributes to 

strengthening the rule of law in society.

 In addition to the Symposium, 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 Iraq, 

Guatemala, Saudi Arabia, Colombia, and others.

PERSONNEL, PLANS, AND TRAINING

 On September 30, 2016, the Army's end-strength was 475,400 Army Soldiers on 

Active Duty compared to 491,365 at the end of FY15. The attorney strength of the 

JAGC Active Component (AC) at the end of FY 16 was 1,803 (including general 

officers). This does not include 69 officers attending law school while participating in 

the Army’s Funded Legal Education Program. The FY16 end-strength of 1,803 

compares with an end-strength of 1,819 in FY15. The diverse composition of the FY16 

AC attorney population included 117 African-Americans, 57 Hispanics, 104 Asians and 

Native Americans, and 504 female Soldiers.

 The grade distribution of the JAGC AC attorneys for FY16 was seven general 

officers authorized (five filling JAGC authorizations, one serving in a Military 

Occupational Specialty (MOS) coded position (Chief Prosecutor for the Commissions), 

and a seventh general officer (mobilized reservist) serving in a branch immaterial billet -

Commander, Rule of Law Field Force - Afghanistan); 117 colonels; 254 lieutenant 

colonels; 521 majors; and 904 captains. An additional 99 warrant officers, 667 Civilian 

attorneys, 796 Civilian paraprofessionals and 1,644 enlisted paralegals from the AC 

supported legal operations worldwide.

 The attorney strength of the JAGC USAR at the end of FY16 was 1,814 (which 

includes officers serving in Troop Program Units, the Drilling Individual Mobilization 

Augmentee (DIMA) Program, the Individual Ready Reserve, and the Active Guard & 

Reserves), and the attorney strength of the ARNG at the end of FY16 was 891. At the 
48

end of FY16, over 267 Army JAGC personnel (officer and enlisted, AC and Reserve 

Component) were deployed in operations in Afghanistan, Guantanamo Bay, Kosovo, 

Egypt, Jordan, Honduras, Israel, Iraq, Kuwait, Qatar, Djibouti and other locations around 

the world.

CONCLUSION

In FY16, the JAGC continued its efforts to improve the quality of practice in complex

cases, to include capital cases, national security cases, sexual assault cases, and

military commission’s proceedings. As discussed above, 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 prosecute sexual assault and family abuse offenses and our SVC 

program continues to grow and provides a holistic approach to victim care. We have 

also made significant progress establishing 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 gold-standard military justice 

system that the Army demands and that its Soldiers deserve.

FLORA D. DARPINO 

Lieutenant General, US Army

The Judge Advocate General
49

APPENDIX - U.S. ARMY MILITARY JUSTICE STATISTICS

Report Period: FISCAL YEAR 2014

PART 2 – DISCHARGES APPROVED [B]

GENERAL COURTS-MARTIAL ( CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES (+ 

dismissals)

135 (+27)

 NUMBER OF BAD-CONDUCT DISCHARGES 161

SPECIAL COURTS-MARTIAL

 NUMBER OF BAD-CONDUCT DISCHARGES 91

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL COURTSMARTIAL328

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL 

COURTS-MARTIAL

92

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL 

COURTS-MARTIAL

65

PART 4 – WORKLOAD OF THE U.S. ARMY COURT OF CRIMINAL APPEAL

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTE

D

ACQUITTALS

RATE OF INCREASE 

(+)/ DECREASE (-) 

OVER LAST 

REPORT

GENERAL 558 486 72 -12.3%

BCD SPECIAL [A] 236 224 12 +4.9%

NON-BCD SPECIAL 1 1 0 +0.0%

SUMMARY 161 [G] [G] +8.8%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER LAST 

REPORT 

-5.3%

TOTAL ON HAND BEGINNING OF 

PERIOD 97 [C] 

 GENERAL COURTSMARTIAL[D]

 BCD SPECIAL COURTSMARTIAL[D]

REFERRED FOR REVIEW 646 [C]

 GENERAL COURTSMARTIAL

 BCD SPECIAL COURTSMARTIAL

TOTAL CASES REVIEWED 655 [E]

 GENERAL COURTSMARTIAL

 BCD SPECIAL COURTS-
50

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE 

 U.S. ARMY COURT OF CRIMINAL APPEALS (CCA)

NUMBER 586

PERCENTAGE 90.71%

PART 6 - ACTIONS OF THE U.S. COURT OF APPEALS FOR THE ARMED FORCES

 (CAAF)

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF 

438 of 655 66.87%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS 

REPORTING PERIOD 

-10.39%

PERCENTAGE OF TOTAL PETITIONS GRANTED 

33 of 455

7.25%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS 

REPORTING PERIOD +46.46%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES 

REVIEWED BY USACCA 

5.04%

RATE OF INCREASE (+)/DECREASE (-) OVER THE NUMBER OF 

CASES REVIEWED DURING LAST REPORTING PERIOD +9.57%

MARTIAL

TOTAL PENDING AT CLOSE OF 

PERIOD 

88 [C]

 GENERAL COURTSMARTIAL

 BCD SPECIAL COURTSMARTIAL

RATE OF INCREASE (+)/DECREASE (-) OVER 

NUMBER OF CASES

REVIEWED DURING LAST REPORTING PERIOD

+11.6%

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF 

PERIOD

RECEIVED

DISPOSED OF

 GRANTED

 DENIED

 NO JURISDICTION

 WITHDRAWN

TOTAL PENDING AT END OF 

PERIOD

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE

GENERAL COURTS-MARTIAL 458

SPECIAL COURTS-MARTIAL 203
51

APPENDIX - U.S. ARMY MILITARY JUSTICE STATISTICS - CONT’D

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.

TRIALS BY MILITARY JUDGE WITH MEMBERS

GENERAL COURTS-MARTIAL 99

SPECIAL COURTS-MARTIAL 34

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 475400 [F]

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL 

PUNISHMENT IMPOSED 29707

RATE PER 1,000 62.49

RATE OF INCREASE (+)/DECREASE (-) OVER 

PREVIOUS PERIOD -8.91%
52

SECTION 4

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE NAVY
53

ANNUAL REPORT OF THE JUDGE ADVOCATE GENERAL OF THE NAVY 

OCTOBER 1, 2015 TO SEPTEMBER 30, 2016

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 members of 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, 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 were conducted under the 

supervision of the Office of Judge Advocate General (OJAG) Inspector General by 

subject matter experts and 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 Military Justice 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) overseeing the Administrative Support 

Division (Code 40), Appellate Defense Division (Code 45), and Appellate Government 

Division (Code 46). OIC, NAMARA is responsible for disposition of all records of trial in 

accordance with statutory and regulatory requirements, as well as applicable appellate 

court rules of practice and procedure.
54

CRIMINAL LAW DIVISION (CODE 20)

Organization. During the reporting period, Code 20 was staffed by seven active 

duty judge advocates, one civilian Highly Qualified Expert, two civilian staff members, 

and an eight-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 Uniform Code of Military Justice (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 courtmartial 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 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 courts-martial.

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. The JSC is the principal vehicle for staffing 

amendments to the UCMJ and MCM. The JSC’s 2016 Annual Review of the MCM was 

completed in accordance with the President’s requirement. In 2016, two Executive 

Orders drafted by the JSC were signed by the President. These orders implemented 

National Defense Authorization Act (NDAA) and policy requirements, congressional 

panel recommendations, and case law updates. Additionally, the JSC drafted five 

Federal Register Notices announcing amendments to the Supplementary Materials 

accompanying the MCM. The JSC proposed, and published for public and Service 

comment, additional amendments to the MCM implementing congressional panel 

recommendations, case law updates, and prior public and Service comments. The JSC 
55

also published the 2016 MCM and responded to other research tasks as directed by 

Department of Defense (DoD) Office of General Counsel.

The Military Justice Act of 2016, consisting of the Military Justice Review Group's 

(MJRG) recommended changes to the UCMJ, was forwarded to Congress for 

consideration in FY16. Code 20 continues to support the entirety of the MJRG process, 

ensuring proper preparations are made for any upcoming changes to the UCMJ. This 

support includes Code 20 staff participation in weekly MJRG working group meetings to 

draft a new MCM in anticipation of the new law.

The Director of Code 20 serves as the Navy's point of contact for all Navy and 

Departmental requests for information and testimony before the congressionallymandated Judicial Proceedings Panel (JPP), the successor panel to the Response 

Systems Panel (RSP). Like the RSP, the JPP was created by section 576 of the FY13 

NDAA. The JPP's mandate is to conduct an independent review and assessment of 

judicial proceedings conducted 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. The purpose of this review is to formulate 

recommendations for improvements to such proceedings. Code 20 personnel engaged 

with JPP staff members providing substantive guidance to support their mandate to 

include coordinating the participation of subject-matter experts to testify at JPP hearings 

as well as researching and presenting historic information as requested by the panel.

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 FY16, 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 

August, Code 20 and the Naval Justice School 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 courts-martial. The 

course provides instruction on, and encourages discussion of, current legal issues 

involving sexual assault policy and dispositions facing SJAs advising GCMCAs and SAIDAs. Among the key topics reviewed were the FY16 NDAA, 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 August 2016 

course was attended by judge advocates from paygrades O-2 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 514 and a checklist for SJAs on 

sexual assault response that incorporates all requirements and references. These 

references are posted on the Criminal Law Division’s online Sharepoint site and 
56

updated as necessary. OJAG’s Criminal Law Division also participated in a crossfunctional 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 conducts tailored trainings for various providers within 

the SAPR program, such as a May 2016 course geared towards senior SJAs and a July 

2016 course for Sexual Assault Response Coordinators.

OJAG’s Criminal Law Division has a strong relationship with the Department of 

the Navy Sexual Assault Prevention and Response Office (DON SAPRO), N17, and the 

Naval Education Training Command (NETC), and provides legal review of all SAPR 

training projects before they are released to the fleet. The Criminal Law Division 

provided in-depth review of a multi-chapter graphic novel that addresses challenges 

faced by sailors when allegations of sexual assault have been made within their peer 

group. Additionally, Code 20 is advising DON SAPRO and other stakeholders on the 

potential development of a smartphone application designed to provide resources and 

assistance with sexual assault reporting. The Criminal Law Division is currently working 

closely with NETC on NETC’s new sexual assault prevention training: Full Speed Ahead 

(FSA). FSA builds on the foundational elements of personal accountability, peer 

engagement and intervention, values-based decision-making, resilience, and 

leadership. FSA uses video vignettes and facilitated discussions to engage all service 

members, across rank, in a dynamic conversation about fundamental values like 

integrity, accountability, initiative, and strength of conviction.

Code 20 also participates in the Navy SAPR Cross-Functional Team, which is 

comprised of SAPR stakeholders representing all lines of effort. The Cross-Functional 

team discusses prevention initiatives, response and support, training, and policy 

legislation. The SAPR Cross-Functional team 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 2016, 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 whose purpose is to 

improve and enhance DSAID capabilities.

Finally, during the reporting period, Code 20 reviewed forty-two records of trial 

under Article 69(a), UCMJ; five records under Article 69(b), UCMJ; and three petitions 

under Article 73, UCMJ.
57

NATIONAL SECURITY LITIGATION DIVISION (CODE 30)

Organization. During most of the reporting period, Code 30 was staffed with 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 Department of Justice (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, litigation support and guidance on 

national security matters 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). This 

support extended to the DoJ National Security Division, where Code 30 facilitated the

use of Navy classified materials vital to trial and to communication between the 

intelligence community, the federal law enforcement community, and Department of the 

Navy.

During the reporting period, Code 30 worked on twenty-four complex espionage 

and mishandling cases, including the long-term, high-profile case against the first Naval 

Officer accused of espionage in decades. Code 30 continued to be involved in the case 

against Army Sergeant Bowe Bergdahl and provided additional support to DoD, DoJ 

and Naval Special Warfare equities in the inquiry against a former Navy SEAL believed 

to have leaked classified information about the Bin Laden operation in his book “No 

Easy Day.” Code 30 participated in the investigation into the detention of US sailors 

following their Navy patrol craft straying into Iranian waters, and assisted in the 

reinvestigation of SEALs accused of detainee abuse in Afghanistan.

Code 30 presented an updated Classified Information Litigation Course in July 

2016 and provided several blocks of instruction to counterintelligence officers at the 

Joint Counterintelligence Training Academy, and to officers from all services at the 

Army’s Judge Advocate Legal Center and School. Code 30 continues to foster 

relationships within the intelligence community, the other Services, the Naval Criminal 

Investigative Service, the Federal Bureau of Investigation and the DoJ. 

Code 30 maintains an extensive library of resources and templates. 

Improvements to the Code 30 SharePoint site have ensured that this information is 
58

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. Significant revisions to the primer were completed in 2016. 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 eight enlisted Marine Corps staff members.

Mission. Code 40 provides administrative and logistical support services to the 

Navy-Marine Corps Appellate Review Activity (NAMARA) and the Navy-Marine Corps 

Court of Criminal Appeals (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 JAG Manual 

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 Court of Appeals for the Armed Forces (CAAF) mandates and 

judgments on remand to commands worldwide for corrective action. 

During FY16, Code 40 examined 375 records of trial for completeness prior to 

forwarding the records for appellate review pursuant to Articles 66 and 69, UCMJ. Also 

during FY16, Code 40 promulgated 289 NMCCA decisions to appellants and transferred 

all 2013 records of trial (485) to the Washington National Records Center. FY16 also 

saw Code 40 coordinate the execution of 297 punitive discharges awarded to appellants 

at courts-martial. Code 40 oversaw 21 NMCCA mandates and 6 mandates ordered by 

CAAF. Code 40 finish filed 444 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. Sixteen Navy and Marine Corps reserve judge advocates 

supported Code 45.

Mission. Code 45 represents Navy and Marine Corps appellants before the 

NMCCA, the CAAF, and the U.S. Supreme Court. Code 45 coordinates with the Navy 

and Marine Corps Defense Counsel Assistance Programs (DCAP) to assist trial 

defense counsel filing extraordinary writs before the NMCCA and the CAAF, and 

preserve trial issues for appeal. Additionally, Code 45 provides advice on specific 

cases in litigation, and delivers formal training blocks on recent appellate rulings.
59

As reflected in the chart below, a total of 383 new cases were docketed at the 

NMCCA in FY16. Code 45 filed 349 initial NMCCA pleadings, consisting of 123 briefs, 

223 merit submissions, and 3 summary assignment of error pleadings. Reservists filed 

69% of these initial pleadings. In addition, Code 45 filed 323 substantive pleadings, 

including 41 reply briefs, 22 responses to government motions, 14 supplemental briefs, 

14 responses to court orders, 228 motions (other than motions for enlargement) and 4 

petitions for extraordinary relief at the NMCCA. Counsel presented oral argument in 11 

cases before the NMCCA.

Code 45 filed 49 supplemental briefs to petitions and two extraordinary writ 

appeal petitions at the CAAF. The Navy’s Judge Advocate General certified two cases 

(United States v. Clark, 75 M.J. 298 (C.A.A.F. 2016) and United States v. Sterling, 75 

M.J. 407 (C.A.A.F. 2016)), and cross-certified two cases to the CAAF (United States v. 

Martin 75 M.J. 321 (C.A.A.F. 2016) and United States v. Howell, 75 M.J. 386 (C.A.A.F. 

2016)). This resulted in 8 full briefs and 11 oral arguments. 

NMCCA FY09 FY10 FY11 FY12 FY13 FY14 FY15 FY16

Cases Docketed 694 678 598 514 437 373 348 383

Briefs Filed 149 159 161 191 143 161 118 123

Other 

Substantive 

Pleadings

410 847 693 632 522 587 326 326

Total Cases 

Filed 679 744 531 488 374 387 311 349

Oral Arguments 14 15 20 19 15 15 14 11

CAAF

Petitions with 

Supplemental 

Briefs Filed

120 69 81 117 90 79 96 49

Briefs Filed 36 21 20 19 13 7 12 8

Oral Arguments 20 11 7 12 9 2 7 11

U.S. Supreme 

Court Petitions 3 6 2 3 2 4 0 0
60

While the number of cases docketed at the NMCCA has declined since FY09, 

the average case size has increased significantly. In FY09, the average case size for 

records in which appeals were filed was 340 transcribed pages. In FY16, case size 

averaged 484 pages, a 42% increase. The percentage of cases in which appellate 

issues were raised has also increased from 22% in FY09 to 36% in FY16. These 

changes correlate with an overall increase in appellate complexity.

Significant cases this term include:

• United States v. Bess, 75 M.J. 70 (C.A.A.F. 2016) (whether the military judge 

abused his discretion when he allowed the admission of additional evidence 

during deliberations but also denied Appellant the opportunity attack the 

accuracy of that evidence before the factfinder).

• United States v. Hoffman, 75 M.J. 120 (C.A.A.F. 2016) (whether the military 

judge erred in refusing to suppress the fruit of a search of seized media made 

pursuant to a commander's authorization that was based on information 

relating to a separate alleged offense and that was issued four months after 

Appellant revoked his consent to search and seize).

• EV v. Martinez, 75 M.J. 331 (C.A.A.F. 2016) (whether the CAAF has statutory 

authority to exercise jurisdiction over decisions of the Courts of Criminal 

Appeals rendered pursuant to Article 6b, UCMJ).

• Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016), petition for cert. filed, 

__ U.S.L.W. __ (U.S. Oct. 17, 2016) (No. 16-536) (whether: (1)the CCAs 

have jurisdiction to consider a Government petition for extraordinary relief 

under the All Writs Act to challenge a military judge's awarding of confinement 

credit pursuant to Article 13; (2) an accused facing rehearing in a full-duty 

status should be paid at their pretrial rank; (3) a set-aside sentence is no 

longer enforceable while the accused is pending rehearing; and (4) the 

Government's action of paying the accused as an E-1 while he awaited 

rehearing is unlawful pretrial punishment in violation of Article 13, UCMJ) 

(certified case).

• United States v. Sterling, 75 M.J. 407 (C.A.A.F. 2016) (examined various 

issues relating to Appellant’s claim of exercising her religion under the 

protection of the Religious Freedom Restoration Act and the Government’s 

actions in response) (cross-certified case).

• United States v. Johnston, 75 M.J. 563 (N-M. Ct. Crim. App. 2016) (whether a 

conviction for indecent exposure is factually sufficient where Appellant texted 

a photo of his genitalia to a person he believed was a consenting adult and 

where the Lawrence v. Texas, 539 U.S. 558 (2003), factors of consent, age 

(or mistake of fact as to age) and privacy suggest he had a protected liberty 

interest).
61

• 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. Uriostegui, 75 M.J. 857 (N-M. Ct. Crim. App. 2016) (whether 

the terms “exposing” under Article 120b(h)(5)(B), UCMJ, and “exposes” under 

Article 120c(c), UCMJ, encompass the electronic transmission of a 

photograph or digital image of one’s genitalia to another person).

• United States v. Neiman, NMCCA No. 201500119, 2016 CCALEXIS 435 (NM. Ct. Crim. App. July 26, 2016) (whether appellant’s statements to NCIS 

should have been suppressed as unwarned or involuntary after an NCIS 

agent solicited the unwarned statements following a nine-month death 

investigation).

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 FY16, Code 46 was supported by nine 

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 the 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 FY16 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; Code 46 also filed two amicus

briefs, which are not tracked by CMTIS. “Other Pleadings” includes responses to 

extraordinary writs, motion responses, responses to Court Orders, and Petitions for 

Reconsideration. The number of CAAF and CCA briefs filed remained relatively 

constant from FY15, as did the number of oral arguments at both courts. 

FY11 FY12 FY13 FY14 FY15 FY16

NMCCA

Briefs Filed 188 198 152 159 140 131

Other Pleadings 144 439 439 479 435 434

Oral Arguments 20 19 15 16 11 11

CAAF

Briefs Filed 22 24 9 12 23 26
62

Other Pleadings 70 111 98 72 97 84

Oral Arguments 7 12 11 3 7 11

Significant issues this term include:

• United States v. Dalmazzi, U.S.C.A. Dkt. No. 16-0651/AF) (Whether a 

United States Court of Military Commission Review judge is statutorily 

authorized to sit as a Court of Criminal Appeals judge)(Amicus brief);

• United States v. Uriostegui, 75 M.J. 857 (N-M. Ct. Crim. App. 2016) 

(Whether the terms “exposing” under Article 120b(h)(5)(B) and “exposes” 

under Article 120c(c) encompass the electronic transmission of a 

photograph or digital image of one’s genitalia to another person);

• Howell v. United States, 75 M.J. 386 (C.A.A.F. 2016), petition for cert. 

filed, __ U.S.L.W. __ (U.S. Oct. 17, 2016) (No. 16-536) (Whether a military 

judge, in finding an Article 13, UCMJ, violation, exceeded his authority by 

rejecting applicable holdings of the U.S. Court of Appeals for the Federal 

Circuit and the Court of Federal Claims, in order to conclude that 

[Appellant] was entitled to pay at the E-6 rate pending his rehearing);

• United States v. Pease, 75 M.J. 180 (C.A.A.F. 2016) (Whether the Court 

of Criminal Appeals, in the course of conducting its Article 66(c), UCMJ 

factual sufficiency review, have the authority to define statutory terms that 

were not defined at trial (Pease);

• United States v. Wilder, 75 M.J. 135 (C.A.A.F. 2016) (Whether the 

promulgation of R.C.M. 707 abrogated the “substantial information” rule 

originated in United States v. Johnson, 23 C.M.A. 91, 48 C.M.R. 599 

(1974));

• United States v. Roberts, 75 M.J. 696 (N-M. Ct. Crim. App. 2016) 

(Whether a military judge exceeded her authority and evinced a clear 

misapplication of the law in finding “general military character” evidence 

admissible to show the probability of innocence of an offense under Article 

120, UCMJ, referred to court-martial after June 17, 2015);

• United States v. Clark, 75 M.J. 298 (C.A.A.F. 2016) (Whether the NMCCA 

failed to conduct a complete review under Article 66(c) when it reversed 

convictions for factual insufficiency without acknowledging the military 

judge’s non-guilt special findings); and 

• EV v. Martinez, 75 M.J. 331 (C.A.A.F. 2016) (Whether the CAAF has the 

jurisdiction to hear a victim’s writ-appeal under Article 6(b)).
63

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 routinely updated 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, and 

moots cases with other services to maximize the efficacy and competence of appellate 

practice.

Code 46 works with the TCAPs and the Naval Justice School, 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 FY16, Code 46 counsel also provided 

training to the Navy-Marine Corps Victim Legal Counsel (VLC) responsible for appellate 

matters. 

Code 46 organized the highly successful Fourth Annual Joint Government 

Appellate Training, held at Joint Base Myer-Henderson Hall from September 13-15, 

2016. It was attended by nearly 100 judge advocates from across the globe and from 

every military branch. Speakers included: Judge Scott W. Stucky, CAAF; Mr. Curtis 

Gannon, Assistant to the Solicitor General, Department of Justice (DoJ); Mr. Russell 

Butler, Executive Director, Maryland Crime Victim’s Resource Center; Mr. Nathan Freed 

Wessler, Staff Attorney, Speech, Privacy and Technology Project, American Civil 

Liberties Union; Nathan Judish, Senior Counsel, Computer Crime and Intellectual 

Property Section, DoJ; Mr. Jerrold J. Ganzfried, Partner, Holland & Knight; Ms. 

Elizabeth Francis, Legal Advisor, Professional Responsibility Advisory Office, and a 

panel of organizations with experience in working with Amici including Sidley Austin LLP 

and Americans United for Separation of Church and State. Code 46 counsel also 

attended advanced appellate training at the annual Appellate Judges’ Education 

Institute, and CAAF’s Continuing Legal Education and Training Program.

As in previous years, Code 46’s community outreach efforts included sending 

counsel to serve as appellate moot court judges and brief graders at the American Bar 

Association’s National Appellate Advocacy Competition and the National Black Law 

Students Association’s Frederick Douglass Moot Court Competition. In FY16, the 

Director and Code 46 counsel also served as moot court judges for student competitors 

at the George Mason Law School Upper Class Appellate Competition.
64

During FY16, 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, with appointment as the Assistant Judge Advocate General of the Navy in 

the third year of service.

THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS (CODE 51)

Organization. During FY16, the Navy-Marine Corps Court of Criminal Appeals 

(NMCCA) included both active duty Navy and Marine Corps appellate judges. The 

number of judges varied between a high of nine and a low of six over the course of the 

year. The NMCCA was also supported by six Navy reserve and three Marine Corps 

reserve appellate judges, a mid-grade officer senior law clerk, four Navy and Marine 

Corps junior officer law clerks, three part-time spring semester student law clerks, four 

summer student law clerks, and three part-time fall semester student law clerks. 

Mission. The 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.

Legal issues addressed in FY16 included (case names in parenthesis):

• Whether the wife of an appellant who at trial invoked her privilege (spousal 

incapacity) under Military Rule of Evidence 504(a) could be compelled to testify 

under the exception found in Military Rule of Evidence 504(c)(2)(D) (both parties 

were substantial participants in illegal activity) (Rios); 

• Whether the convening authority’s instruction restricting eligibility for court-martial 

membership frustrated an appellant’s right to a properly convened court-martial 

(Hoyes);

• Whether the petitioner’s continued confinement after this court set aside the 

findings and sentence from his court-martial and dismissed the charges with 

prejudice pending the Judge Advocate General of the Navy’s decision to accept 

or to challenge this court’s decision is consistent with the procedures established 

within the UCMJ and sanctioned by binding precedent (Clark);
65

• Whether the appellant was properly convicted of receiving stolen property and 

larceny of the same property (Michelena); 

• Whether a military judge abused his discretion by giving a curative instruction 

vice declaring a mistrial after he excluded the entire testimony of a Government 

witness heard by the members (Sager); 

• Whether a military judge’s ruling directing the convening authority to provide 

sentencing credit for illegal pretrial punishment from the date of the appellant’s 

initial conviction was set-aside until his retrial was an abuse of discretion 

(Howell);

• Whether a military judge applied an erroneous view of the law that relaxation of 

the rules of evidence in sentencing only pertains to documentary evidence and 

erred by excluding relevant mitigation evidence (Beaumont); 

• Whether there was prosecutorial misconduct where a government search of 

defense counsel spaces was conducted onboard Camp Pendleton and two 

government counsel who were disqualified from serving as trial counsel after 

becoming witnesses to certain charges engaged in activities in the case outside 

of the courtroom (Nauta);

• Whether erroneous post-trial advice to the convening authority that he could only 

act on the findings and sentence within the confines of the appellant’s pretrial 

agreement where some of the offenses predated the FY14 NDAA and FY15 

NDAA required new post-trial processing (Roller);

• Whether the appellant used physical strength sufficient to overcome his victim 

where the force used to commit the sexual act was limited to rolling the victim 

over onto his back and exposing his genitals (Parker);

• Whether the lesser included offense of battery was reasonably raised by the 

evidence where the accused was charged with committing a sexual assault and 

abusive sexual contact (Hackler);

• Whether an accused can be convicted of larceny where without permission he 

used other people’s credit cards to purchase electronic media without corporeal 

form (Stevens);

• Whether it was proper to convict the appellant of non-forcible sodomy when such 

a conviction required proof beyond a reasonable doubt of facts not necessary for 

a forcible sodomy conviction and not pleaded in the specifications (Bass);

• Whether the Government had proven that, at the time of the sexual conduct in 

question, the victim was incapable of consenting to the conduct due to 
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impairment by an intoxicant where it did not prove that the victim did not possess 

the cognitive ability to appreciate the nature of the conduct in question or the 

mental and physical ability to make and to communicate a decision regarding 

that conduct to the other person (Pease);

• Whether a military judge abused his discretion in refusing to order the use of an

interpreter throughout the cross-examination of the foreign national victim 

(Berger);

• Whether a military judge abused his discretion in refusing to order the deposition 

of a minor victim whose mother refused to allow defense counsel to interview her 

prior to her testimony at trial (Yazzie);

• Whether evidence of general military character was admissible during the merits 

phase of a trial where the trial occurred after the amendment to Military Rule of 

Evidence 402 but the offense occurred before the amendment (Roberts); 

• Whether an accused’s statement outside an interrogation context is admissible 

as a statement by a party-opponent pursuant to Military Rule of Evidence 

801(d)(2)(A) and thus specifically excepted from the corroboration requirement in 

Military Rule of Evidence 304(c)(1)(Latour);

• Whether 911 calls made by a victim who would not testify at trial were admissible 

as non-testimonial hearsay (Perkins);

• Whether Article 120(b)(3) is unconstitutional on its face since a person of 

common intelligence cannot determine when another person is impaired by 

alcohol such that they are incapable of consenting to a sexual act (Solis); and

• Whether a dishonorable discharge is mandatory for an Article 80, UCMJ, 

conviction for the attempted violation of Article 120b(b), UCMJ (Henegar).

The Court will host its seventh annual NMCCA Judicial Training course in early 

FY17. As in other years of this top-rated training session, the Court is engaging a mix 

of Department of Defense (DoD) and external speakers, to include: an expert in judicial 

ethics, a military forensic psychiatrist to speak about mental capacity of accused who 

are drunk, on drugs, or mentally ill, a panel discussion on the potential changes to the 

UCMJ in the FY16 NDAA, a brief by a senior DoD Office of General Counsel 

representative on sexual assault, briefs on Navy Clemency and Parole Board and the 

Board of Correction of Naval Records, and an update of the new legal search features 

in Lexis. The Court will also attend the 2017 William S. Fulton, Jr. Military Appellate 

Judges’ Training Conference. The Conference program contains a Year in Review of 

the most recent Supreme Court decisions. 

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 
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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 twelve active duty Marine Corps judges and 

twelve 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 sixteen 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 

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 Military Rule Of Evidence (M.R.E.) 

513, guardianship of victims, victim participation in sentencing hearings, and defining 

the parameters 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 

general courts-martial (GCMs). In FY16, the NMCTJ presided over 681 initial 

arraignments, 633 of which ultimately went to trial (276 GCMs and 357 special courtsmartial (SPCMs)). Of the GCMs that went to trial, 42% (115) were contested, as were 

26% (93) of the SPCMs. The 208 contested cases resulted in 120 convictions and 88 

acquittals. 

In addition to their primary military justice mission, our trial judges continue to 

support the Office of Military Commissions (OMC) Trial Judiciary. At the close of the 

fiscal year, the Circuit Judge for EURAFSWA was relieved of duties on the OMC case 

of United States v. al Iraqi due to his pending retirement. The Circuit Judge of the 

Eastern Judicial Circuit was then detailed to the case. 

NMCTJ continues to support the training of new judge advocates by providing 

evaluators for the mock trial program at the Naval Justice School. Our reserve trial 

judges are a vital part of that program as well. In February 2016, the NMCTJ attended 

the Joint Military Judges Annual Training (JMJAT) at Maxwell Air Force Base near 

Montgomery, Alabama. This training included instruction from active duty judges from 

all Services.

In August 2016, the NMCTJ held a Special Victims’ Training symposium for all 

Navy and Marine Corps trial judges at the Washington Navy Yard. Funded by the DoD 
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Sexual Assault Prevention and Response Office, the symposium focused on complex 

issues that frequently arise in contested sexual assault cases. Training topics included 

pretrial case management, child abuse issues, child pornography, forensic evidence 

and judicial ethics. Instructors from the Department of Justice, the Army JAG School, 

and the Walter Reed Medical Center provided lectures.

NAVAL LEGAL SERVICE COMMAND (NLSC)

Organization. The Deputy Judge Advocate General of the Navy also serves as 

Commander, Naval Legal Service Command (CNLSC). At the conclusion of FY16, 

NLSC was comprised of 438 judge advocates, 1 Civil Engineer Corps officer, 1 Limited 

Duty (Law) officer, 217 legally trained enlisted members, 11 administratively trained 

enlisted members, 209 civilians, and 37 foreign nationals.

Mission. Naval Legal Service Command 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 FY16, 

NLSC provided legal advice, services, and training to the Fleet through 13 commands 

and their associated branch offices and detachments: four Defense Service Offices 

(DSOs) provided defense and personal representation and nine Region Legal Services 

Offices (RLSOs) provided prosecution, command services, and legal assistance. 

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.

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 populating a database. 

This is DON's attempt to achieve end-to-end Defense Incident-Based Reporting System 

(DIBRS) compliance. NJIS, when deployed, will replace CMS as the NLSC case 

tracking system.

In FY16, NLSC completed 123 general courts-martial, 135 special courts-martial, 

and 145 Article 32 investigations. While the number of courts-martial has declined in 
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recent years, the proportion of contested trials, the complexity of litigation, and the 

scope of out-of-court responsibilities 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 is increasing. 

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 fleeted up from the 

deputy position this spring. He is an O-5 select qualified as “Specialist II” in the Military 

Justice Litigation Career Track (MJLCT) and received his LL.M. in Litigation and Dispute 

Resolution from the George Washington University School of Law. He previously 

served as a trial counsel, defense counsel, Officer in Charge, deployed Staff Judge 

Advocate, and as the Deputy Director of DCAP. 

The Deputy Director is an O-4 select qualified as a “Specialist I.” Previously he 

served as a defense counsel in Norfolk and Washington DC and he was an individual 

augmentee at Combined Joint Interagency Task Force 435. This spring DCAP will get 

an O-5 director that is qualified as a “Specialist II” and an O-4 Deputy Director that is 

qualified as a “Specialist I.” 

DCAP is currently in the process of hiring a Highly Qualified Expert (HQE) and 

expects to have this position filled by Spring 2017. 

DCAP personnel are currently stationed in the fleet concentration area of Norfolk, 

Virginia and in Washington, District of Columbia. The incoming HQE will be stationed in 

San Diego, California. Although normally acting in an advisory capacity for defense 

counsel, DCAP personnel are also to assigned cases as needed. When regular 

supervisory counsel was unavailable, DCAP’s Deputy Director filled in as behind-thebar supervisory counsel for a junior counsel trying a contested case in a remote 

courtroom. 

Mission. DCAP’s primary mission is to support the Navy trial defense bar. 

During FY16, 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 assistants, 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.
70

DCAP was responsible for a wide array of training for defense counsel. DCAP 

spearheaded training in San Diego that brought together all core defense counsel and 

leadership to share ideas and develop best practices. The defense counsel heard from 

experts in sexual assault defense, technology in the court room, medical discharges, 

and investigations. In addition, 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 which is designed to prepare new defense counsel 

to represent court-martial and administrative separation clients. The Director served as 

an instructor at both the Basic Trial Advocacy Course and DSAC, and the Deputy 

Director served as a small group instructor at DSAC. DCAP also worked with the Trial 

Counsel Assistance Program on the Senior Managers’ Course for military justice 

supervisors. Finally, DCAP conducted three 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 

positions were staffed with quality applicants, resulting in all eight defense investigator 

positions being filled. As the positions were filled, DCAP provided standardized training 

and assisted in establishing uniform policy and protocols for the newly created Defense 

Litigation Support Specialist program.

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 real-time exchange and 

dissemination of information and serves as a central repository of documents and 

resources developed by DCAP and counterpart offices in our 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-5, a 

Military Justice Litigation Career Track (MJLCT) designated “Expert.” The current 

Director, an O-6 select, received his LL.M. in Litigation from George Washington 

University School of Law. He previously served as Military Judge, Region Legal Service 

Office (RLSO) Executive Officer, Senior Defense Counsel, Senior Trial Counsel, and 

Staff Judge Advocate (SJA). 

The Deputy Director was a GS-15 civilian who specializes in prosecuting special 

victim crimes (SVCs) and advocating for victims’ rights. Due to her passing in 2016, an 

acting Deputy Director was appointed during the ongoing hiring process. The Acting 
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Deputy Director is an O-5, MJLCT-designated “Specialist II” who previously served as a 

Senior Trial Counsel, Senior Defense Counsel, Deputy Region SJA, and as Branch 

Head for Military Justice Policy at Code 20. He received his LL.M. in Litigation from the 

Beasley School of Law at Temple University.

TCAP’s Highly Qualified Expert (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 a senior O-4 MJLCT-designated "Specialist I" who has 

extensive prosecution experience, served as an installation SJA, legal assistance 

attorney, defense counsel, and deployed SJA on a joint staff. 

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 is currently detailed as the lead 

trial counsel on a high profile national security case; the Assistant Director served as 

trial counsel in a premeditated murder case; the Acting Deputy Director is assisting with 

an attempted child solicitation case; and, the HQE has provided on-scene expert 

assistance in several complex 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 the Naval 

Justice School (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, 
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online, and in-person at offices worldwide. Together with NJS, TCAP conducted the 

Prosecuting Special Victims Crimes course: an advanced domestic violence and child 

abuse prosecution course providing focused training sessions to Navy, Marine and Air 

Force prosecutors and paralegals. This year, TCAP focused on coordinating training 

with the Marine Corps 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), the San Diego Sexual Assault Response Team, the 

Conference of Crimes Against Women, and the End Violence Against Women 

International Annual Conference.

TCAP supplemented its training outreach with a number of webinars focusing on 

prosecuting special victim offenses and other evidentiary topics. These webinars 

allowed 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-14) Deputy Chief of Staff and operates independently of both trial and 

defense organizations. The program consists of 32 specially trained and certified Navy 

judge advocates, two of whom are reservists, and 10 administrative personnel. VLC are 

assigned to 24 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; 

Rota, Spain; and Yokosuka, Japan.

In FY16, a local Bahraini counsel was retained by the VLC Program 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. In August 2013, the Navy established the VLC Program to provide 

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 
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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. 

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. 

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 April 2016, 

the VLC Program held its first 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.

In FY16, VLC provided training at the SVCC Course as well as the Representing 

Child Victims training, 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.

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 
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directly connected to a report of sexual assault. Assistance with more substantive 

matters are referred to the nearest military legal assistance office.

In FY16, the Navy VLC Program initiated an appellate practice team consisting of 

four VLC who were specially trained by the Navy Appellate Government division and 

who attended the Joint Appellate Advocacy Training held at Henderson Hall in 

September 2016. 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 FY16, Navy VLC provided legal support to 1,520 sexual offense victims 

(780 of whom were new clients for VLC during FY16), participated on behalf of victims 

at 892 military justice and administrative proceedings, and conducted 543 outreach 

briefs on VLC services to 28,586 personnel.

NAVAL JUSTICE SCHOOL

Organization. Naval Justice School (NJS) reports to CNLSC for administrative 

and operational control. The main NJS facility is located in Newport, Rhode Island, 

consisting of a staff of approximately 30 officers, enlisted members, and civilians. 

Teaching detachments are based in San Diego, California, and Norfolk, Virginia, each 

consisting of a staff of 3 officers, 2 enlisted members, and 1 civilian. A two-person 

branch office is located at the U.S. Army's Judge Advocate General's Legal Center and 

School in Charlottesville, Virginia. Fifteen reserve personnel supported NJS in FY16. 

Training curriculum for Military Justice is controlled by the Military Justice CrossFunctional Team (CFT), consisting of 11 experienced Judge Advocate and paralegal 

instructors and led by an O4 Military Justice Litigation Qualification (MJLQ) member.

In FY16, Naval Justice School hired a GS-15 Educational Program Specialist to 

provide expert advice on the science of education, to assist in the formulation of the 

school’s educational and training curriculum, and to advise leadership and mentor 

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 FY16, NJS provided instruction to more than 4,000 students worldwide at 

more than 1,300 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 
75

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 

FY16, NJS graduated 165 students.

2. Legalman Accession Course. This 11-week course, offered three times in 

FY16, 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. Five weeks of military-specific training within the course doubles 

as the reserve Legalman Accession Course. In FY16, there were 70 active duty 

graduates and 20 reservists.

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 of Marine Corps Legal Services Specialist. Curriculum 

consists of training in military justice, post-trial review, and legal administration. In FY16 

75 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 Military Occupational Specialty 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 FY16, 

29 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 FY16, NJS provided 33 offerings 
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of the SOC in Newport, San Diego, Norfolk, Camp Pendleton, Camp Lejeune, Parris 

Island, Quantico, Pensacola, Okinawa, and Rota. Per NAVADMIN 302/12, this course 

is mandatory for O-6s en route to command. In FY16, 1118 graduated 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 FY16, NJS provided 16 

offerings of the LOC in San Diego and Norfolk to 571 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 FY16, NJS provided 17 

offerings of the LCC in San Diego and Norfolk with 461 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 FY16, NJS provided 14 offerings of the SELC in San 

Diego and Norfolk and had 584 graduates.

In addition to the “core” courses, NJS provided 20 resident specialty courses, 

many of which are pre-approved for continuing legal education (CLE) credit from state 

bar associations. Many of these courses focus on military justice. In FY16, these 

resident courses reached more than 560 legal professionals.

1. Defense Counsel Orientation (DCO). This bi-annual course teaches Navy and 

Marine Corps defense counsel how to effectively prepare, manage, and try cases from 

the investigation stage through sentencing with a particular focus on the practical 

aspects of defense. 

2. Basic Trial Advocacy (BTA). This course is designed to develop important 

trial advocacy skills in judge advocates in their first trial billets and in judge advocates 

transitioning to litigation billets from non-trial billets.

3. Prosecuting Special Victim’s Cases (PSVC). This week-long course is taught 

in conjunction with Navy and Marine Corps TCAP. It focuses on substantive aspects of 

prosecuting special victim’s cases and includes small-group practical exercises to hone 

skills such as conducting direct and cross examinations of child abuse and domestic 

violence experts, as well as the accused. 

4. Defending Sexual Assault Cases (DSAC). This is a week-long course, 

coordinated with DCAP, that brings together military and civilian expertise to provide 

training on sexual assault litigation for defense counsel. 

NJS also continues to provide Basic and Advanced SJA Courses. The SJA 

courses incorporate military justice training topics relevant to SJAs including search and 
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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 FY16, 49 students attended LPEP as in-resident students, and 

more than 300 students were enrolled in the distance learning option.

The Online Legal Education department at NJS offers a wide variety of training 

and education courses through the Blackboard learning management system and the 

Naval Justice School 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, the Trial Counsel Orientation online 

course is an entry-level training for first time trial counsel and is required for all incoming 

Marine Corps and Navy trial counsel. Teaching tools include assigned readings, 

recorded videos, discussion boards, practical assignments, and knowledge checks. 

Each fiscal year, NJS Online provides more than 10,000 hours of instruction to more 

than 2,000 students worldwide.

In addition to publishing the annual Naval Law Review, 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.

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 
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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 Region Legal Service Offices (RLSOs) and 

defense departments at our four Defense Service Offices (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 FY16, there were 77 Navy MJLCT officers, of whom 63 were filling 

MJLCT designated billets. The “billet-fill rate” has held relatively stable for the last two 

years. MJLCT officers are serving in billets at the Office of Military Commissions, on 

board aircraft carriers, at NJS, and in VLC positions. Three MJLCT officers are 

currently attending post-graduate school to obtain LL.M. degrees in Trial Advocacy. 

The promotion rate for MJLCT officers continues to be monitored. The FY16 

promotion selection boards selected MJLCT officers at a similar rate to the overall inzone selection rate. The FY16 O-6 promotion selection board selected three of five 

MJLCT officers in-zone, the O-5 selection board selected five of seven MJLCT officers 

in zone and one above zone, and the O-4 selection board selected all ten MJLCT 

officers in-zone as well as two officers above zone for promotion.

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 will normally be 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 sufficient additional qualitative and quantitative 

military justice litigation experience as well as professional development as a naval 

officer. Candidates will normally be eligible for SPECIALIST II after their tenth year of 

active duty.

c. EXPERT. Following SPECIALIST II qualification, a judge advocate may 

qualify as EXPERT after obtaining significant additional military justice litigation 

experience as well as demonstrated leadership of junior judge advocates. For this 

reason, EXPERT is ordinarily reserved for those judge advocates who have reached the 

senior-most MJLCT positions. Candidates will normally be eligible for EXPERT after 

their sixteenth year of active duty.

SPECIALIST II and EXPERT MJLQ are community management tools to guide 

the detailing, training, and professional development needs of MJLQ judge advocates 

and to ensure the community maintains its ability to execute this core function across 

the community billet structure. Senior MJLQ judge advocates, in coordination with the 

AJAG 05, who serves as the MJLCT community sponsor, seek to provide all MJLQ 
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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 will be required to 

demonstrate increased courtroom experience, continued growth in litigation leadership, 

and familiarity with the broader mission of the Navy. MJLQ judge advocates are 

encouraged to explore the wide variety of naval experiences that contribute to the 

development of a broad understanding of the duties of judge advocates and to seek out 

non-litigation billets even after MJLQ designation. Accordingly, applicants for EXPERT 

MJLQ should generally have served at least two years in a non-litigation billet prior to 

their application for qualification.

2. Sexual Assault Prevention and Response (SAPR) Initiatives

In FY16, 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 ongoing SAPR 

initiatives, 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 coordination with Victim Legal Counsel (VLC) Program, the Criminal Law 

Division provided in-depth review of a multi-chapter graphic novel that addresses 

challenges Sailors may face arising from allegations of sexual assault within their peer 

group. Code 20 is also working with DON SAPRO and other stakeholders on the 

potential development of a smartphone application to assist with sexual assault 

reporting.

Naval Justice School (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 

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 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.
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The Navy continues to publish all court-martial results of trial to increase 

transparency and to serve as a deterrent to other potential offenders. In August 2016, 

publishing expanded to include the first public posting of appellate briefs online. The 

VLC Program, Code 20, and the appellate litigation divisions coordinated to ensure 

compliance with the FOIA, Privacy Act, and NMCCA Rules of Practice and Procedure.

The Trial Counsel Assistance Program continues to provide robust training as 

part of the Naval Criminal Investigative Service (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. 

3. Additional Information

a. Compliance With Processing Time Goals

In FY16, no Navy case was dismissed on speedy trial grounds. Six Navy cases 

exceeded 120 days from sentencing to convening authority’s (CA) 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 39(a) session. No Navy cases 

exceeded 30 days from date of CA’s action to docketing at NMCCA (Moreno 2 

guideline) No Navy cases 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

Our MJLCT attorneys rotate among prosecution, defense, and judicial 

assignments. Many MJLCT officers 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 other assignments, such as operational and SJA 

billets, to round out their experience in the fleet. As a result, our litigators understand 

the importance of each role in our military justice system - insight which 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, division directors, and Assistant 
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Judge Advocate General. MJLCT officers are heavily involved in the daily prosecution, 

defense, and judgment of cases throughout the Service, and are serving at the Office of 

Military Commissions and as VLC as well. These officers continue to be detailed into 

repeated tours of litigation-intensive billets that will improve the effectiveness and 

efficiency of the court-martial process. Several MJLCT officers have extensive 

contested case experience in all three areas of practice - prosecution, defense, and the 

judiciary. Some also have extensive appellate experience.

Almost a quarter of the MJLCT community has experience in areas of capital 

litigation, national security/classified information cases, or military commissions, and 

nearly every MJLCT officer has experience in litigating sexual assault cases. Each area 

of practice (prosecution, defense, and judiciary) currently includes MJLCT members 

who have extensive experience in sexual assault, capital, classified, and commissions 

cases, and every practice area has ready access to these experts for support if the 

need arises.

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 comprised of two Assistant Judge 

Advocates General, military justice experts from the prosecution and defense, policy 

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 Department of Justice (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 77 career 

litigators in the MJLCT at the end of FY16, approximately one-third have earned an 

LL.M. in litigation.

Trial Counsel

Senior Trial Counsel (O-4 or above) are the nucleus of the Navy’s SVIP 

capability and are prepared to prosecute complex cases including capital and national 
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security cases. Each is hand-selected by the JAG to fill one of nine Senior Trial 

Counsel billets. All Senior Trial Counsel are MJLCT officers. Upon reporting, all Senior 

Trial Counsel complete a one-week special victims investigation course and participate 

in additional specialized training such as litigating complex cases, TCAP targeted 

mobile training, and monthly online special victims offenses or litigation training. All 

Senior Trial Counsel regularly report to TCAP on all pending felony-level investigations 

and prosecutions. Additionally, uniformed 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 

Region Legal Service Office (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 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 a Senior Trial Counsel, 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 the Office of the Military 

Commissions when assigned to that office.

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 Defense 

Service Office (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.

DCAP sends Defense Mobile Training Teams to each DSO 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.
83

Resources permitting, Navy defense counsel have attended advanced legal 

seminars aimed at the criminal defense attorney. The Navy sends defense counsel to 

the National Child Abuse Defense and Resource Center’s International Conference and 

the 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 

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 as a trial military judge.

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 new Article 

120, presiding over cases involving third party representatives such as VLC, 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). In February 2016, 

the USAFTJ hosted JMJAT at Maxwell Air Force Base, and the NMCTJ will host JMJAT 

2017 onboard Tampa Air Force Base in February 2017. At Maxwell, 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.
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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 FY16, all Navy and Marine Corps trial judges gathered for three days of 

training funded by DoD SAPRO related to special victims. Training topics included 

Military Rules of Evidence (M.R.E.) 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 sexual assault cases; the role of VLC in the court-martial process; and 

compliance with recent National Defense Authorization Act provisions.

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 

course focuses on court processes, opinion writing, ethics, appellate burdens of proof 

and persuasion, and advanced evidence. The FY16 course focused on appellate 

writing and advanced research training in Lexis. Appellate judges also attend the 

annual William S. Fulton, Jr. Military Appellate Judges’ Training Conference, which is an 

inter-service, one-day event with the host rotating among the services. In 2016, the 

Army Court of Criminal Appeals hosted the conference. Finally, two appellate judges 

attended the New Appellate Judges Seminar hosted by New York University School of 

Law.

e. The Independent Views of The Judge Advocates 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, significant strides have been made to 

ensure that the Navy Judge Advocate, enlisted, and civilian communities were properly 

resourced to fulfill increasingly complex litigation obligations. The Navy has provided 

additional billets to defense, trial, and victims’ legal counsel commands and has 

invested significant resources in training litigants and providing expert supervision at the 

trial level. Expertise in civilian paralegals and long-term HQEs continues to be a need. 

However, budget reductions and contracting constraints continue to cause challenges in 

hiring personnel and funding training and could further impact operational readiness. 

With respect to the VLC program, reserve support ended in September 2016 as most 
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definite recall billets reverted to active duty billets. This loss, together with the addition 

of new litigation billets, strains JAG Corps manpower despite overall personnel growth. 

The sufficiency of mid and long-term resources largely depends on new 

legislation and directive policies, most of which place significant demands on strained 

judge advocate resources. The anticipated FY17 loss of approximately one million 

dollars in SAPRO funds significantly impacts training opportunities for litigators dealing 

with sexual assault cases and special victims. JAG will continue to work with the Navy 

to ensure that the JAG Corps can meet these challenges as they emerge, including 

maintaining sufficient manning to fulfill mission objectives. 

CONCLUSION

In FY16, the Navy continued to strive to provide the highest caliber of military 

justice advice and representation to service members, commanders, and the Fleet. 

Although the number of special courts-martial has decreased significantly over the past 

decade, the decline of general courts-martial numbers has been less dramatic. In 

recent years, the number of general courts-martial has remained relatively constant, as 

have other measures of demand, such as the number of pages of records of trial 

received at Navy and Marine Corps Appellate Review Activity and the number of 

appellate briefs filed at the Navy-Marine Corps Court of Appeals. These metrics reflect 

the complexity and visibility of the modern docket, which demands the best from our 

attorneys, paralegals, and support personnel.

Through efforts such as the continued development and refinement of our 

Military Justice Litigation Career Track, our highest level oversight in the detailing and 

utilization of Victims’ Legal Counsel personnel, and our continued monitoring of our First 

Tour Judge Advocate Program, the Navy has proven its commitment to excellence in 

this critical mission. Recognizing the substantial number of changes coming to the 

military justice system with the implementation of the Military Justice Improvement Act 

of 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 FY16.
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MARINE CORPS ACTIVITIES

STAFF JUDGE ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS
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U.S. MARINE CORPS ANNUAL MILITARY JUSTICE REPORT FOR FISCAL YEAR 2016

TABLE OF CONTENTS

I. INTRODUCTION....................................................................... 1

II. MILITARY JUSTICE BY THE NUMBERS................................... 4

III. POST-TRIAL REVIEW AND APPELLATE DECISIONS.............. 6

A. Processing Time Goals 6

B. Reversal of Convictions for Denial of Speedy Post-Trial

 Review, UCI, or other Administrative Deficiencies 6

IV. MILITARY JUSTICE PRACTITIONERS, TRAINING AND 

RESOURCES............................................................................. 7

A. Trial Counsel 7

B. Defense Services Organization 8

C. Victim’s Legal Counsel Organization 9

D. Training Standards and Resources 10

E. Naval Justice Information System 11

V. VIEWS ON THE SUFFICIENCY OF RESOURCES....................... 12

VI. CONCLUSION.......................................................................... 13
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I. INTRODUCTION

In fiscal year 2016 (FY16) the Marine Corps military justice community—trial 

counsel, defense counsel, Victims’ Legal Counsel (VLC), and command advice judge 

advocates—continued to leverage the experience of its senior leaders and highly 

qualified experts combined with the strength of its organization and training programs to 

accomplish the military justice mission. With a focus on special victim and other 

complex military justice cases, we placed a premium on ensuring that in each military 

justice case, we detailed the right judge advocates with the right supervision and 

training to litigate each case on “every side of the aisle” and to provide advice to 

commanders. Our Legal Service Support Sections (LSSSs) in the East, National 

Capital, West, and Pacific regions continued to represent the main effort, becoming 

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.

This year again brought statutory changes to military justice that required 

implementation. The FY16 National Defense Authorization Act (NDAA) expanded 

victims’ appellate rights, required investigators and trial counsel to notify victims of the 

right to VLC prior to any interview, and required development of a DoD strategy to 

prevent retaliation against victims of sexual assault as well as sexual assault witnesses 

and first responders. In addition, Executive Order 13730, signed by the President on 20 

May 2016, and Executive Order 13740, signed by the President on 16 September 2016, 

promulgated numerous and widespread changes to the Manual for Courts-Martial by 

amending the Manual’s Preamble, the Rules for Courts-Martial, the Military Rules of 

Evidence, and the Punitive Articles. These changes implemented multiple National 

Defense Authorization Act requirements, Department of Defense policy, congressional 

panel recommendations, and updated the Manual for Courts-Martial to conform with 

updates to civilian federal practice and case law. Practice Advisories issued by the 

Military Justice Branch, posts from the Trial Counsel Assistance Program (TCAP), 

community-wide updates from the Marine Corps Judge Advocate Division, and training 
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by each LSSS informed military justice practitioners of these and other changes to 

practice. 

The Marine Corps supported numerous formal efforts to evaluate change to the 

military justice system in FY16 by working closely with the Judicial Proceedings Panel 

(JPP) to respond to five requests for information. Topics addressed included 

implementation of the policy to withhold initial disposition authority, implementation of 

Special Victim Investigation and Prosecution (SVIP) capability, assessment and trends 

of training and experience of prosecutors and defense counsel; victims’ access to 

information, Victims’ Legal Counsel, retaliation against victims of sexual assault; 

defense investigators, resources, and experience; and appellate counsel review of 

materials sealed at trial. The Marine Corps also provided documents for all FY15 adultvictim sexual assault courts-martial charges, reported the disposition data for all FY16 

sexual assault cases tried, and provided and prepared numerous judge advocates to 

testify at JPP hearings. Finally, the Marine Corps continued to implement reforms 

recommended by the Response Systems to Adult Sexual Assault Crimes Panel (RSP). 

This fiscal year represented the culmination of efforts to enact the most 

significant set of changes yet made to the UCMJ. Throughout FY16, judge advocates’ 

sustained efforts at Headquarters Marine Corps ensured that Congress could adopt the 

Department of Defense’s proposals to adopt the Military Justice Review Group’s 

(MJRG) recommended comprehensive amendments to the Uniform Code of Military 

Justice (UCMJ). As these changes were under consideration by Congress, the Marine 

Corps, in its capacity as Chair of the Joint Services Committee on Military Justice, 

worked with the other Services to prepare for full implementation of these historic UCMJ 

amendments within the anticipated statutory and regulatory timelines. 

The role of the VLC continued to expand as the FY16 NDAA increased the rights 

and protections afforded to victims, particularly victims of sexual assault. The FY16 

NDAA expanded the scope of those eligible to receive VLC services to include DoD 

civilian employees, required trial counsel and investigators to inform sexual assault 
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victims of their right to consult with VLC before interviewing or requesting statements 

from victims, and provided for enforcement of certain crime victim rights by the Court of 

Criminal Appeals. The legislation also mandated development of a strategy to prevent 

retaliation against those who report as victims or assist victims of sexual assault. To 

ensure proper implementation of these requirements, the Marine Corps drafted new 

policy relating to military justice, modified its training for military justice practitioners, and 

conducted extensive coordination with the Navy Office of the Judge Advocate General 

and the Navy Marine Corps Trial Judiciary.

The SJA to CMC’s Legal Support Inspection program ensured timely 

implementation of these new initiatives and requirements. Consistent with Article 6, 

UCMJ, senior members of the SJA to CMC’s staff inspected each of the four LSSSs 

and thirty-five staff judge advocate offices. In conjunction with these inspections, the 

SJA to CMC visited each LSSS and most operational and supporting establishment 

commands in FY16. During these visits, the SJA to CMC conducted town hall meetings 

with the Marines while also taking the opportunity to meet with commanders and staff 

judge advocates and other senior leaders as part of his Article 6, UCMJ, mandated 

“frequent inspection in the field in supervision of the administration of military justice” 

within the Marine Corps. The Judge Advocate Division (JAD) has refined the annual 

inspection process in order to assess and improve the practices within those legal 

offices and to ensure the operational and material readiness, effectiveness, and 

efficiency of the Marine Corps legal community. The inspection process principally 

serves to identify best practices and emphasizes continuous improvement as a 

philosophy and standard of practice within the legal community. 

Through creation of the Marine Corps Judge Advocate Board in FY16, the 

Marine Corps formed counsels of colonels to serve as a bridge between JAD and the 

fleet and designed a process through which task-organized Operational Advisory 

Groups (OAGs) of subject matter experts analyze issues confronting the judge advocate 

community and initiatives to improve the community and develop and evaluate potential 

courses of action. After the SJA to CMC determines the course of action that will be 
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followed, appropriate stakeholders are tasked to take the steps necessary to implement 

the changes. In FY16, OAGs addressed a number of military justice topics, including: 

appropriate requirements for accession to the General Court-Martial Trial Counsel and 

Special Victim Trial Counsel designations; qualifications for service as a Victim’s Legal 

Counsel; baseline requirements for trial leadership billets such as Senior Trial Counsel 

(STC) or Regional Trial Counsel (RTC); effectiveness of trial counsel training conducted 

at the regional and local levels; effectiveness and scope of the Prosecution Merits 

Memorandum (PMM); optimization and standardization of Article 32 Officer support; 

courtroom and trial security; use of technology in the courtroom; various issues relating 

to court reporters; and changes to the post-trial process, specifically in anticipation of 

the implementation of the Military Justice Act of 2016.

Through a continuous feedback loop—a process of inspection, evaluation, 

adaptation and standardization—the Marine Corps legal community met its mission of 

successfully and expeditiously providing competent and capable military justice services 

to address the most complex and demanding court-martial cases and elevating the 

practice of military justice within the Marine Corps. 

II. MILITARY JUSTICE BY THE NUMBERS – TRENDS & ANALYSIS

In FY16, the Marine Corps litigated 149 general courts-martial and 208 special 

courts-martial to findings. At any given time during the year, the Marine Corps had 

approximately 200 courts-martial and 40 Article 32 preliminary hearings pending, with 

an additional 40 pending post-Article 32 referral/disposition decisions, 80 pending 

Figure A. Percentage GCMs Contested FY11 – FY16 Figure B. GCM Average Hours FY11 – FY16
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prosecutorial merits memoranda (PMM), and 180 pending requests for legal services 

(RLS). Of the 200 pending courts-martial about 155 were special courts-martial and 45 

general courts-martial. These numbers are higher than in FY15 primarily because, in 

FY16, the Marine Corps began reporting all SVIP investigations in the Case 

Management System (CMS), regardless of whether the cognizant commander had 

submitted a Request for Legal Services (RLS). Additionally, the numbers of cases 

pending referral/disposition decision and PMM were not included in previous reports. 

FY16 was the first full year where prosecutors were required to prepare a PMM in every 

special victim case before the SJA provides initial disposition advice to the convening 

authority.

The percentage of contested general courts-martial dropped sharply from the last 

three FYs (see Figure A). In part due to the smaller number of contested cases, the 

amount of time spent on the record dropped significantly in FY16 (see Figure B). 

Several factors explain these large reductions in contested GCMs and time spent on the 

record. Contributing factors include stronger investigations with better evidence, closer 

coordination between all members of the Special Victim Investigation and Prosecution 

(SVIP) capability on each installation, better trained and prepared investigators and trial 

counsel, strong leadership from carefully selected senior trial counsel, and more 

informed SJA advice to convening authorities as a result of prosecutorial merits 

memoranda from trial counsel in every special victim case. These trends show the 

efficiencies created by experienced and well-trained litigators, qualified support staff, 

and effective SVIP capabilities. 

The growth in sexual assault prosecutions, often 

among the most difficult cases we try, illustrates a 

continued trend toward cases that are more complex and 

intensely litigated. Between FY12 and FY14, the number 

of contested sexual assault prosecutions more than 

tripled (see Figure C). Though the number of contested 

sexual assault cases has declined since FY14, it is still 

0 50 100

FY16

FY15

FY14

FY13

FY12

Contested Guilty Plea

Figure C. Sexual Assault 

Prosecutions 

FY12 – FY16
93

almost twice as high as FY12. The number of guilty pleas increased significantly in 

FY16, producing a higher overall number of sexual assault prosecutions than any prior 

FY.

Special courts-martial litigation continues to 

decrease (see Figure D). The Marine Corps prosecuted 

208 special courts-martial in FY16, only 2 fewer than in 

FY15. The number of contested special courts-martial 

also continued to decrease. In FY16, contested special 

courts-martial declined both as a total number and as a 

percentage of all special courts-martial. 

III. POST-TRIAL REVIEW AND APPELLATE DECISIONS

As a result of the mandatory Marine Corps-wide use of the Case Management 

System (CMS) and other case tracking mechanisms used by judge advocates and legal 

services specialists, including the JAG-SJA to CMC chaired Military Justice Oversight 

Committee, the Marine Corps complied with post-trial processing goals. The Marine 

Corps maintained an unblemished processing record, with no convictions reversed 

because of a denial of the right to speedy post-trial review or otherwise remitted due to 

loss of records of trial. 

A. Processing Time Goals

In FY16 the Marine Corps had 

415 general, special, and summary 

courts-martial that warranted post-trial 

review. For cases warranting appellate 

review, the Marine Corps averaged 

119

83 87 92 87 97 95 95

13

10 10 15 12

18 15 20

0

20

40

60

80

100

120

140

FY 09 FY 10 FY 11 FY 12 FY 13 FY 14 FY 15 FY 16

Average Days to CAA 

Average Days from CAA to Docketing 

0

50

100

150

200

250

300

350

FY12 FY13 FY14 FY15 FY16

Total SPCM

Contested SPCM

Figure D. Total and 

Contested SPCM 

FY12 – FY16

Figure E. Post-Trial Processing Times 

FY09 – FY16
94

ninety-five days from the date of trial to convening authority’s action (CAA), which 

remains unchanged from FY15’s average (see Figure E). The Marine Corps averaged 

twenty days from 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

In FY16, the Marine Corps had no cases in which a provision of the UCMJ was 

held unconstitutional, and no convictions were reversed for violation of the right to 

speedy trial, speedy post-trial review, unlawful command influence or 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 those cases 

involving sexual assault or domestic violence. 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 our LSSSs. At any given time, 

slightly more than 50% of these are qualified to prosecute special victim cases.
95

The Marine Corps continues to provide its 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 West Region, each of the regional LSSSs has a civilian Highly 

Qualified Expert (HQE), hired based on their experience and expertise with complex 

special victim cases. The West Region HQE billet is temporarily vacant. These HQEs 

consult with counsel on every SVIP case. Our HQEs collectively possess more than 60 

years of collective litigation experience. HQEs 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. HQEs provide consistent guidance to trial counsel and 

assure 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.

In FY16, TCAP continued to support trial counsel throughout the Marine Corps 

through training, sharing of resources, and creation of offense-specific “playbooks.” 

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, 

TCAP continued near-daily publication on its blog that provides a forum to discuss 

recent case law and legislative developments, results of and lessons-learned from 

recent courts-martial, and suggested forms and sample motions. In FY16 TCAP also 

published “playbooks” for hazing and child pornography offenses. The playbooks 

dissect these UCMJ offenses from investigation to findings and combine resources a 

trial counsel will need to prosecute successfully a case from charging, discovery issues, 
96

defenses, and draft motions. TCAP also created and sponsored the first Marine Corps 

Litigator of the Year competition in collaboration with faculty from the nationally 

recognized trial advocacy program at the American University Washington College of 

Law.

B. Defense Services Organization

The Marine Corps Defense Services Organization (DSO) is dedicated to 

providing criminal defense services to Marines worldwide. The DSO is a global 

organization of more than 70 attorneys geographically assigned within the four Regional 

Legal Services Support Sections. A Colonel (O-6) heads the organization as Chief 

Defense Counsel of the Marine Corps and Officer in Charge of the DSO. That officer 

reports directly to the Staff Judge Advocate to the Commandant of the Marine Corps 

(SJA to CMC), and exercises functional supervision over all DSO personnel on the SJA 

to CMC’s behalf. The DSO also runs a Defense Counsel Assistance Program (DCAP), 

which currently has one active duty officer dedicated to it. In FY16, DCAP also 

employed two civilian HQEs (one located in the eastern region and one located in the 

western region). 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. Training that is more specific is provided 

internally and through consultation with the Marine Corps criminal defense HQEs. In 

FY16, the DSO provided zealous detailed representation to 1,580 Marines and Sailors. 

C. Victims’ Legal Counsel Organization
97

In FY16, the USMC Victims’ Legal Counsel Organization (VLCO) continued to 

grow in size and in the development of the practice. The VLCO is comprised of 15 fulltime active-duty VLC, 3 auxiliary counsel (legal assistance attorneys who also provide 

VLC services), 8 civilian support personnel, two enlisted support personnel, three 

reserve VLCs and the Officer-in-Charge and Deputy Officer-in-Charge at Headquarters 

Marine Corps. The VLCO has 11 total VLC offices, including the four regional offices, 

one at each major Marine Corps installation. 

In FY16, the VLCO provided services to approximately 655 victims of crime. Of 

these victims, approximately 70% were victims of sexual assault, 25% of domestic 

violence and the remaining 5% of other crimes such as simple assault or larceny. 

Individual VLCs maintained an average of twenty-five cases at any given time. By 

contrast, in FY15 the VLCO assisted approximately 650 crime victims - where 

approximately 60% were sexual assault victims, 27% were victims of domestic violence, 

and 13% were victims of other crimes.

In FY16, the VLCO moved forward in establishing standard practices and 

procedures. Most significantly, the Marine Corps published its first VLC Manual signed 

by the Staff Judge Advocate to the Commandant of the Marine Corps. The Manual 

establishes standard operating procedures for the delivery of victims’ legal services 

throughout the Marine Corps. Additionally, in FY16, the OIC of VLCO published the 

organization’s first inspection checklist for all offices to use in preparation for the OIC’s 

annual inspections. The annual inspections and site visits to every VLC office provide 

the OIC with information to assess the health of the organization and quality of 

representation provided. 

Throughout the fiscal year, Marines and commanders developed a better 

understanding of the VLC program. 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 include providing welcome 

aboard briefs to new personnel, one-on-one briefs to incoming commanders, courses to 
98

new uniform victim advocates, and instruction in conjunction with other military justice 

counsel.

All VLCs and support personnel attend certification training, the annual VLCO 

training symposium, and have the opportunity to attend other military and civilian 

training courses throughout the year.

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 FY16. Specifically, in FY16, every Marine assigned to a litigation billet was 

able to attend at least one of the following courses: Intermediate Trial Advocacy; PostTrial 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; and a 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 agents in investigating and 

prosecuting special victim cases. These courses were sponsored by a variety of 

institutions including: the Naval Justice School, the National District Attorney’s 

Association, the 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.
99

The Marine Corps also continued its partnership with the United States 

Department of Justice’s Office for Victims of Crime (OVC), which has provided valuable 

financial support and information on current victims’ rights laws and trends. In FY16, 

the Marine Corps formed a new interagency agreement with OVC to provide $40,000 

per year from FY16 to FY19. This funding allows the Marine Corps to conduct training 

relating to victims’ rights and victim assistance. In FY16, the Marine Corps used OVC 

funding to train 66 Victim-Witness Liaison Officers (VWLO) and Victim-Witness 

Assistance Coordinators (VWAC) 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, and prepared them to assist 

commanders as they fulfill their VWAP responsibilities throughout the military justice 

process. This VWAP training also equipped VWLOs to work in conjunction with 

investigators, trial counsel, and other SVIP capability members who interact with and 

support crime victims.

E. Naval Justice Information System

In an effort to streamline the administrative burden of administering military 

justice, the Marine Corps, along with the Navy, continued their ongoing efforts to 

develop the Naval Justice Information System (NJIS). Although the system was 

expected to launch in FY16, it experienced delays that pushed the expected launch to 

FY17. Once released, NJIS will provide a common reference system for the data 

required for enterprise case management that will integrate information from law 

enforcement, criminal investigations, command actions, judicial actions, and 

corrections. NJIS is a web-based system that will provide access to 50,000 Navy and 

Marine Corps users worldwide and can support 5,000 concurrent users. The system 

will also provide data management from an enterprise perspective. Departmental policy 

will address governance issues and appropriate data/information will be visible to 

authorized users (i.e. Role Based Access Controls). NJIS will establish data standards 

to ensure interoperability with all of the required agencies for both information intake 

and reporting output. Once NJIS is launched, the system will provide the Department of 
100

the Navy (DON) a capability that improves incident reporting, modernizes the DON’s 

criminal justice processes, increases information sharing across the NJIS communities, 

and provides leadership access to data for tracking and analysis to better inform 

decision-making.

V. VIEWS ON THE SUFFICIENCY OF RESOURCES

The potential for any tactical military justice issue quickly to become a strategic 

issue has been the norm for the Marine Corps for over a decade. Within the Marine 

Corps legal community this reality results in two requirements: (1) retaining our most 

qualified judge advocates and legal service specialists; and (2) producing judge 

advocates with Masters of Law Degrees in Criminal Law. 

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. LSEDS 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 LSEDS program was most recently implemented in FY14. The program 

utilized a board selection process to select the ten best and most fully qualified judge 

advocates on active duty. Continued funding of LSEDS 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. 

In addition, Masters of Law degree (LL.M.) in criminal law provide judge 

advocates specialized understanding in technical and constitutional areas of criminal 

law and the Uniform Code of Military Justice. 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 
101

as regional trial or defense counsel. For FY16, thirteen judge advocates received 

LL.M.s in criminal law from an American Bar Association accredited program at a 

civilian institution or the Army Judge Advocate General’s Legal Center and School. This 

program ensures judge advocates have the required 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

In FY16, the Marine Corps legal community accomplished its military justice 

mission in the face of tremendous challenges posed by scrutiny of and changes to our 

military justice practice. We will maintain our systematic efforts to improve the practice 

of law within the Marine Corps, with a focus on military justice, through continuous 

evaluation, adaptation, capture of best practices and standardization. As Judge 

Advocate Division works to implement the decisions from the FY16 MCJABs, the FY17 

MCJABs will continue to analyze and recommend appropriate action on a wide array of 

military justice issues, to include the changes that must be made to fully implement the 

many military justice provisions of the FY 17 National Defense Authorization Act. By a 

continuous process of proposal, debate, and decision, we will advance more 

aggressively, responsively and responsibly the collective quality of the Marine Corps’ 

legal practice, including its military justice practice. 
102

APPENDIX - U.S. NAVY/MARINE CORPS MILITARY JUSTICE STATISTICS

Report Period: FY 2016[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 123 151 96 128 27 23 10%

BCD 

SPECIAL

135 208 123 184 12 24 -6.8%

NON-BCD 

SPECIAL 0 0 0 0 0 0 0

SUMMARY 30 302 29 298 1 4 -9.3%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER 

LAST REPORT 

-3.5%

PART 2 – DISCHARGES APPROVED 

GENERAL COURTS-MARTIAL (CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES 96

 NUMBER OF BAD-CONDUCT DISCHARGES 82

SPECIAL COURTS-MARTIAL (CA LEVEL) 

 NUMBER OF BAD-CONDUCT DISCHARGES 167

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL 

COURTS-MARTIAL

197

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 154

 GENERAL COURTS-MARTIAL 104

 BCD SPECIAL COURTSMARTIAL50

REFERRED FOR REVIEW 386

 GENERAL COURTS-MARTIAL 202

 BCD SPECIAL COURTSMARTIAL184

TOTAL CASES REVIEWED 369
103

 GENERAL COURTS-MARTIAL 199

 BCD SPECIAL COURTSMARTIAL170

TOTAL PENDING AT CLOSE OF 

PERIOD

171

 GENERAL COURTS-MARTIAL 108

 BCD SPECIAL COURTSMARTIAL63

RATE OF INCREASE (+)/DECREASE (-) OVER 

NUMBER OF CASES

REVIEWED DURING LAST REPORTING PERIOD

2.79%

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE U.S. NAVY-MARINE 

CORPS 

 COURT OF CRIMINAL APPEALS

NUMBER 369

PERCENTAGE 100% 

PART 6 – ACTIONS OF THE U.S. COURT OF APPEALS FOR THE ARMED FORCES 

PERCENTAGE OF CCA-REVIEWED CASES FORWARDED TO CAAF 

(76)

20.6%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS 

REPORTING PERIOD 

-20.8%

PERCENTAGE OF TOTAL PETITIONS GRANTED 

(8)

10.5%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS 

REPORTING PERIOD 

-40.6% 

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES 

REVIEWED BY CCA

2.2%

RATE OF INCREASE (+)/DECREASE (-) OVER THE NUMBER OF CASES 

REVIEWED DURING LAST REPORTING PERIOD

-54.2%

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF 

PERIOD 4 [C]

RECEIVED 3

DISPOSED OF 4

 GRANTED 2

 DENIED 0

 NO JURISDICTION 2

 WITHDRAWN 0

TOTAL PENDING AT END OF PERIOD 3

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE 451
104

GENERAL COURTS-MARTIAL 174

SPECIAL COURTS-MARTIAL 277

TRIALS BY MILITARY JUDGE WITH MEMBERS 165

GENERAL COURTS-MARTIAL 100

SPECIAL COURTS-MARTIAL 65

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ 

NUMBER OF COMPLAINTS 31

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 511,856

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ) 

NUMBER OF CASES WHERE NONJUDICIAL 

PUNISHMENT IMPOSED 8921 [D]

RATE PER 1,000 17.4

RATE OF INCREASE (+)/DECREASE (-) OVER 

PREVIOUS PERIOD -31.6%

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
105

SECTION 5

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE AIR FORCE
106

REPORT OF

THE JUDGE ADVOCATE GENERAL

OF THE UNITED STATES AIR FORCE

OCTOBER 1, 2015 TO SEPTEMBER 30, 2016

INTRODUCTION

The United States Air Force Judge Advocate General’s Corps (JAG Corps) 

continued to enhance the effectiveness of the military justice system, successfully 

integrating the increase in manpower authorizations to establish the right level of 

resources to prosecute criminal actions, vigorously defend Airmen, and provide legal 

representation to victims of sexual assault. This expansion helped address the 

increased workload in the prosecution and defense of sexual assault crimes, the rising 

caseload in the provision of legal counsel to victims of sexual assault, and the 

expansion of the SVC Program to include more classes of victims. The JAG Corps 

added an additional 6 Senior Trial Counsel positions (STC), from 18 to 24, and an 

additional 2 Senior Defense Counsel (SDC) positions, from 19 to 21. The Air Force also 

added 21 new funded paralegal billets to the Special Victims’ Counsel (SVC) Program. 

These additional billets will ensure a Special Victims’ Paralegal (SVP) is located at each 

SVC office. SVPs provide regular assistance to clients and continuity of operations 

(e.g., status updates to clients, case updates, referrals, and maintaining an office 

presence when the SVC is traveling). SVPs frequently attend child client meetings and 

witness interviews to protect both the client and the attorney. SVP support to SVCs is 

paramount as the complexity of representation continues to increase and the scope of 

representation expands. 

In addition to the increased manpower, the reestablished judicial circuit structure 

in five locations around the world came into its own, with efficient assignment of counsel 

and court scheduling. Harnessing the institutional knowledge of our military judges and 

STCs also provided huge mentoring benefits to our wing legal offices -- STCs provided 

over 2,000 hours of training to Wing-level judge advocates, an achievement that the 

circuits made possible. In August, the Trial Judiciary, along with the STCs, SDCs and 

SVCs, also held its first Air Force Circuit Annual Training (AFCAT) at Joint Base 

Andrews, Maryland. This training event capitalized on the synergy of the circuits, 

fostering professionalism and collegiality.
107

THE AIR FORCE COURT OF CRIMINAL APPEALS

The Air Force Court of Criminal Appeals issued opinions in 192 cases in Fiscal 

Year (FY) 2016. At the end of FY 2015, the court had seven active duty judges 

assigned, three commissioners, two paralegals, and a clerk of court. At the end of FY 

2016, the court had nine active duty judges, two commissioners, two paralegals, and a 

clerk of court—although the clerk of court position was vacant until near the end of the 

fiscal year, at which time it was upgraded and filled as a supervisory attorney position. 

At the end of FY 2015, the court had 226 cases docketed, 74 of which were pending the 

court’s decision. Six cases were pending the court’s decision for more than 180 days, 

with one case exceeding the Moreno standard. At the end of FY 2016, the court had 

269 cases docketed, 70 of which were pending the court’s decision. There were 32 

cases pending the court’s decision for more than 180 days, with five cases exceeding 

the Moreno standard.

The court issued three published opinions during this fiscal year and held oral 

argument in six cases, to include hearing oral argument at Fordham University School 

of Law School pursuant to its “Project Outreach” program.

During FY 2016, one of the court’s appellate judges served on the United States 

Court of Military Commission Review (USCMCR), and three additional appellate judges 

have been nominated to serve on 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.

Two of the court’s appellate judges served as hearing officers for eight Air Force 

Environmental Impact Statement (EIS) hearings. An EIS hearing is conducted for 

actions that have the potential for significant environmental impact with a goal of 

providing the public and the decision makers with adequate information about the 

potential impact of military actions on the environment. 

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 23 active-duty trial judges, four reserve 

trial judges, two noncommissioned officers, one civilian employee, and six 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. 
108

In October, the Directorate expanded to include the enlisted court reporters. 

Each circuit office has at least one enlisted court reporter assigned, with central tasking 

authority from the directorate. This marked the first step in transitioning all court 

reporters to the trial judiciary to further support timely transcription assistance 

worldwide. 

In FY 2016, Air Force judges presided over 475 general and special courtsmartial. Judges also served as preliminary hearing officers in 48 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 EIS public hearings. 

In August, the Directorate, along with the senior trial, defense and special victims’ 

counsel, held its first AFCAT at Joint Base Andrews. All Air Force trial judges attended 

the 5-day event, which provided the opportunity for the newly reestablished circuits to 

foster professionalism while also offering instruction on such areas as new statutes and 

rules related to sexual offenses, sentencing considerations, digital evidence, and recent 

appellate cases.

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 (AFJAGS), 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 AFJAGS to create several web-based 

training series on impeachment, discovery, and evidentiary foundations. 

Currently, there are three active duty judges detailed to support the military 

commissions. The Chief Judge continues to preside over the commission proceeding 

for the alleged USS Cole bombing, as well as a capital trial at Robins AFB, Georgia. 

AIR FORCE JUDICIARY

The Air Force Judiciary Directorate (JAJ) is responsible for the administration of 

military justice across the Air Force. JAJ advises The Judge Advocate General (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 
109

Defense Division (JAJD); the Military Justice Division (JAJM); and the Clemency, 

Corrections and Officer Review Division (JAJR).

GOVERNMENT TRIAL & APPELLATE COUNSEL DIVISION

APPELLATE GOVERNMENT COUNSEL

During this past year, nine 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 courts-martial convictions. The Division also 

sought and obtained certification from TJAG in four 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 Air Force Court of Criminal Appeals (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 Air Force's first death penalty case in nearly 

two decades. Following CAAF’s order for a sentence rehearing in Witt, JAJG’s senior 

trial and appellate government counsel traveled to the victims’ families to prepare them 

for the additional capital sentencing litigation and delivered continued and appropriate 

victim and witness support. 

Appellate Government Counsel zealously represented the government in 202 

written briefs and 20 oral arguments before CAAF and AFCCA. Their advocacy 

resulted in notable appellate rulings during the year. In United States v. Slape, __ M.J. 

__ (A.F. Ct. Crim. App. 2016), a case of first impression, AFCCA agreed with JAJG in a 

published decision concerning the definition of temporary child custody for purposes of 

applying the spousal privilege contained in M.R.E. 504 in child sexual abuse cases. In 

Slape, the child victim was not related to either the appellant or the appellant’s wife, but 

the facts of the case demonstrated the couple had sufficient temporary child custody to 

invoke the exception to the general rule permitting a spouse to refuse to testify against 

her husband. AFCCA established factors military judges should consider when 

determining if the spousal privilege exception applies. Following notable appellate 

jurisdiction rulings in favor of JAJG from CAAF in United States v. Arness, 74 M.J. 441 

(C.A.A.F. 2015) and United States v. Labella, 75 M.J. 52 (C.A.A.F. 2015), CAAF and 

AFCCA granted multiple JAJG motions to dismiss for lack of jurisdiction. For example, 

in United States v. Refre, 75 M.J. 461 (C.A.A.F. 2016), CAAF granted JAJG’s motion to 

dismiss for lack of appellate jurisdiction for a court-martial completed in 1978.

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 

Dougherty-Nelson Continuing Legal Education Course, the Trial and Defense Advocacy 

Course, the Annual Survey of the Law course and the various sexual assault 
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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. 

A summary of Air Force Appellate Government practice follows:

AFCCA FY12 FY13 FY14 FY15 FY16

Briefs Filed 233 188 175 193 168

Cases Argued 14 14 18 10 11

CAAF FY12 FY13 FY14 FY15 FY16

Briefs Filed 36 30 40 18 34

Cases Argued 9 9 14 13 9

SUPREME 

COURT

FY12 FY13 FY14 FY15 FY16

Petition/Waivers 

Filed

1 1 1 0 1

Briefs Filed 0 0 0 0 0

SENIOR TRIAL COUNSEL

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. STCs prosecute 

approximately 85 percent of all Air Force general courts-martial and were detailed to 

over 90 percent of the Air Force’s sexual-assault cases. Additionally, in FY16, STCs 

prosecuted over 65 special courts-martial. During the fiscal year, STCs also worked on 

discharge boards and other proceedings, as resources allowed.
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Personnel authorizations for Fiscal Year 2015 grew from 18 STC positions to 24 

positions. This expansion resulted from the addition manpower authorizations directed 

by SecAF to address the increased workload in the prosecution and defense of sexual 

assault crimes, the rising caseload in the provision of legal counsel to victims of sexual 

assault, and the expansion of the Special Victims’ Counsel Program to include more 

classes of victims. This increase in manpower provided for the creation of 5 new Chief 

Senior Trial Counsel (CSTC) positions to serve as field grade leadership over the circuit 

counsel. During FY16, these five O-4 CSTCs, working in conjunction with the O-5 Chief 

Senior Trial Counsel of the Air Force, worked to support the military justice needs of 

legal offices within their circuits. 

In FY 16, the STC program continued to leverage the experience and skill of its 

Special Victims Unit (SVU) prosecutors. The SVU prosecutors handle the most serious, 

most complicated, and highest-visibility 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 Defense Computer Forensics Laboratory and is the 

Air Force’s legal expert on issues related to digital evidence. At the close of FY 16, 11 

STCs were qualified as SVU prosecutors. 

In FY 16, STCs spent in excess of 3,000 days on temporary duty away from their 

home stations, and represented the government in more than 420 courts-martial and 

related hearings and proceedings. Again this year, in addition to other Air Force 

courses designed to enhance advocacy, 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. This year, as part of the first AFCAT at Joint Base 

Andrews, Maryland, the STCs received intensive training specially tailored to the highprofile 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, AFCAT also allowed the entire STC corps to train in plenary 

sessions alongside JAGs assigned to the Trial Judiciary, Trial Defense Division and 

Special Victims Counsel Division. This opportunity enhanced knowledge of the 

missions of the other divisions. 

Additionally, STCs attended a variety of training offered by sister service and 

non-DoD sources. These trainings, such as the Navy’s Prosecuting Complex Cases 

course and the National District Attorneys Association’s Prosecuting Homicides course, 

add to the perspective of STCs and allows for the cross-feed of information from outside 

of the Air Force. 

In total during FY 16, STCs provided approximately 2,300 man hours of training 

to the field in a combination of formal settings such as the courses named here, and 

informal office trainings conducted in conjunction with temporary duty. As a corps, 

STCs attended almost 1,300 man hours of training to improve advocacy and 

prosecution skills.
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APPELLATE DEFENSE DIVISION

The Appellate Defense Division is responsible for delivering appellate defense 

services to airmen on appeal. In FY 2016, 10 active duty judge advocates, 9 reserve 

judge advocates, one civilian attorney and two paralegals served as champions on 

appeal for 348 airmen. Timely appellate review remained a priority, despite the number 

of enlarged cases with the AFCCA increasing from 41 enlarged cases on 1 Oct 15 to 79 

enlarged cases on 1 Oct 16. 

As in past years, reserve component judge advocates continued to provide 

significant support to JAJA. In FY 2016, reservists at JAJA submitted 42 Assignments of 

Error, filed 15 Petitions for Review at CAAF, and presented 2 oral arguments to CAAF. 

An O-5 reservist even acted as Division Chief from 17 May 2016 and 15 June 2016.

In the 2016 CAAF term, JAJ was the number one appellate defense division in 

the Department of Defense (DoD) with a 67 percent winning percentage at CAAF. In 

addition, Appellate Defense Counsel participated in Project Outreach arguments before 

AFCCA at Fordham University School of Law in New York City, 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 2016, 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. Witt, CAAF set aside a death sentence and 

ordered a rehearing. In United States v. Chin, CAAF affirmed the authority of the CCAs 

to grant relief pursuant to Article 66c, regardless of the accused’s pretrial waiver. In 

United States v. Gay, CAAF affirmed the statutory right of airmen to receive relief from 

the appellate courts when their post-trial conditions of confinement are harsher than 

their fellow civilian detainees without justification under civilian regulations. In United 

States v. Atchak, division attorneys persuaded CAAF that a court of criminal appeals 

need not authorize a rehearing when it disapproves a finding of guilty. CAAF held 

unanimously that AFCCA did not abuse its discretion by not authorizing a rehearing in 

this certified case. In United States v. Killion, division attorneys persuaded CAAF to 

dismiss a charge of provoking speech where the military judge failed to properly instruct 

the members because he directed the members to consider the speech from the 

perspective of a hypothetical average person rather than from the perspective of the 

actual audience. Finally, in United States v. Fetrow, AFCCA overturned a conviction and 

25-year sentence in a sexual assault case based upon a published decision interpreting 

M.R.E. 414.

In FY 16, attorneys from the Appellate Defense Division 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 Army, Navy/Marine 

Corps and the Coast Guard, civilian Appellate Advocacy Training at University of North 

Carolina – Chapel Hill School of Government, and training provided by the Council of 

Appellate Lawyers in Philadelphia, Pennsylvania. Additionally, Division attorneys 
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continued to brief at various training to include the AFCAT at Joint Base Andrews, 

where it trained 25 Air Force Circuit Senior Defense Counsel (CSDCs) and Senior 

Defense Counsel (SDCs), and the Defense Orientation Course (DOC) at AFJAGS, 

where it taught two courses of 25 new Area Defense Counsel (ADCs), including an 

expanded, half-day block of instruction in the fall of 2016. Finally, six Appellate Defense 

Counsel conducted mock trial training at the Drug Enforcement Agency’s Basic 

Intelligence Research Specialist course and the division participated in its first JAG 

Corps-wide appellate update with JAJG.

The following figures reflect the Division’s workload over the past six fiscal years:

AFCCA

FY11 FY12 FY13 FY 14 FY 15 FY 16

Briefs Filed 299 295 221 205 195 175

Cases Argued 9 12 10 8 10 14

USCAAF

FY11 FY12 FY13 FY 14 FY 15 FY 16

Supplements to Petitions 160 220 257 222 171 126

Grant Briefs 11 12 5 17 6 6

Cases Argued 17 9 10 13 13 11

SUPREME COURT

FY11 FY12 FY13 FY14 FY 15 FY 16

Petitions 1 1 1 1 2 2

Briefs in Opposition 0 0 0 0 0 0

Briefs on the Merits 0 0 0 0 0 0

TRIAL DEFENSE DIVISION

The Trial Defense Division is responsible for providing all defense services 

throughout the Air Force through its worldwide team of ADCs, Defense Paralegals 

(DPs), SDCs, CSDCs, and Defense Paralegal Managers (DPMs). The Chief, JAJD, is 

assisted by a Deputy Chief, Policy and Training, and an Office Superintendent at Joint 

Base Andrews, MD.
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During FY 16, the Division was staffed with 84 ADCs and 74 DPs. These ADCDP 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.

Personnel authorizations for FY 15 grew from 19 SDC positions to 21 positions. 

This expansion resulted from the addition of manpower authorizations directed by 

SecAF to address the increased workload in the prosecution and defense of sexual 

assault crimes, the rising caseload in the provision of legal counsel to victims of sexual 

assault, and the expansion of the SVC Program to include more classes of victims. 

During FY 16, the SDCs were consolidated from 19 operating sites down to the five 

circuit locations described above. Together, these 186 professionals provided defense 

services to Airmen around the world.

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 AFJAGS. All SDCs—new and old alike--attended a Division-run 

Leadership Course at Joint Base Andrews, Maryland. Defense personnel also attended 

Trial Advocacy Courses conducted at both AFJAGS and various civilian-sponsored 

courses.

MILITARY JUSTICE DIVISION

The Military Justice Division provides counsel and prepares positions on military 

justice law and policy for 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 33 records of trial for review under 

Article 69a, UCMJ, and five records under Article 69b, UCMJ; provided 103 advisory 

opinions concerning AFBCMR applications; and responded to 50 inquiries in specific 

cases requiring formal written replies to senior officials, including the President and 

members of Congress. Additionally, the Division reviewed and released over 19,500 
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pages of court records in response to more than 500 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 6,943 

victims and 6,365 witnesses of crime in calendar year 2015. 

JAJM twice presented the Military Justice Administration Course, a “back to 

basics” weeklong course attended by more than 120 judge advocates and paralegals. 

Division personnel also taught at additional courses, including the Staff Judge Advocate 

(SJA) Course (a required leadership course for judge advocates assigned to SJA 

positions); Gateway (an intermediate developmental leadership course for judge 

advocates in the grade of major); Annual Survey of the Law (continuing education for 

Air Reserve Component judge advocates and paralegals); and the Joint Military Judges 

Annual Training for military judges of all Services.

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 for general and 

special courts-martial across the Air Force. The Air Force had previously initiated 

website publication of trial results. In 2016, the two efforts were synchronized: 

AMJAMS now delivers directly to the public website information about scheduled trials 

and the results of completed trials. Meanwhile, JAJM continued to deliver new and 

updated military justice products of immediate utility to Air Force legal offices worldwide 

via the Virtual Military Justice Deskbook, which transitioned to a new platform in 2016. 

Throughout 2016, JAJM supported the Judicial Proceedings Panel (JPP) in its 

study of adult sexual assault and UCMJ proceedings. JAJM organized presentations 

and testimony by more than 15 Air Force witnesses, facilitated site visits to six Air Force 

installations, and responded to requests for over 100,000 pages of documents from 

200-plus courts-martial. In 2016, the JPP published four reports, and JAJM coordinated 

the Air Force comments and developed the implementation plan for JPP 

recommendations. 

Finally, JAJM led the Air Force effort to produce the Military Justice Act of 2016

(MJA), which was signed by the President on December 23, 2016. The MJA was the 

culmination of a multi-year effort that began when the Chairman of the Joint Chiefs of 

Staff requested and the Secretary of Defense directed a comprehensive review of the 

military justice system, which was conducted by the Military Justice Review Group 

(MJRG). The MJA encompasses the most sweeping changes to the UCMJ in over 30 

years. JAJM drafted Air Force positions on the legislative proposal and obtained SecAF 

coordination after fully informing Air Force senior leaders about the proposed changes 

and their impacts. Through its role on the Joint Service Committee on Military Justice 

(JSC), JAJM is proud to have contributed -- directly, substantively, and significantly -- to 

the overhaul of the UCMJ.
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CLEMENCY, CORRECTIONS AND OFFICER REVIEW DIVISION

At the end of FY 16, 352 Air Force personnel were in confinement. Of those, 100 

inmates were in long-term confinement at the United States Disciplinary Barracks, Fort 

Leavenworth, Kansas, and 43 were serving their sentences 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 2016 was 53. 

During the reporting period, JAJR reviewed 15 Article 71, UCMJ, officer dismissal 

cases. SecAF approved the dismissals in each of those cases. The division reviewed 

two enlisted cases for Secretarial clemency under Article 74, UCMJ. SecAF declined to 

grant clemency in either case. The division also reviewed three cases for Presidential 

Pardon consideration. Of those, one was granted a Presidential Pardon. That case 

involved an Air Force physician convicted of conduct unbecoming of an officer for 

stealing merchandise valued at about $11.95.

THE JUDGE ADVOCATE GENERAL’S SCHOOL

The Air Force Judge Advocate General’s School (AFJAGS) is the educational 

arm of the JAG Corps. Located at Maxwell AFB, 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 2016, 

AFJAGS faculty members instructed more than 16,000 students at these military 

institutions.

 Additionally, AFJAGS published 10 articles concerning military justice and other 

criminal justice issues in The Reporter and The Air Force Law Review. With the 

assistance of subject matter experts from the Administrative Law Directorate 

(HAF/JAA); Air Force Legal Operations Agency’s Civil Law & Litigation Directorate 

(AFLOA/JAC); and the AF Judiciary, 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 was published online in July 2016, and is currently being distributed in hard 

copy 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 FY 16, 

there were several live webcasts on military justice topics including significant changes 

following the passage of the 2016 National Defense Authorization Act and the Manual 

for Courts-Martial Update. These webcasts were seen live by over 700 JAGs and 

paralegals and are now available “on demand” on Campus, is a web-based 
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collaborative learning and 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 FY 16. With nearly 60 JAG School 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

Article 32 Pretrial Hearing Officer Course (Distance Education)

Defense Orientation Course (for new Area Defense Counsel and Defense Paralegals)

Gateway (the JAG Corps’ advanced leadership course for field grade officers)

Intermediate Sexual Assault Litigation Course (held regionally in the United States and 

overseas)

Joint Military Judges’ Annual Training

Judge Advocate Staff Officer Course

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 courses, AFJAGS continued to lead the way in the 

development of a “full spectrum” military justice curriculum, expanding the Special 

Victims’ Counsel Course from 5 to 8 duty days, as well as creating 6 new blocks of 

instruction for SVCs attending the Intermediate Sexual Assault Litigation Course. 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 FY 16, TRIALS programs were conducted at 

8 locations: Charleston AFB, South Carolina; Travis AFB, California; Maxwell AFB, 

Alabama; Nellis AFB, Nevada; Ramstein AB, Germany; Joint Base San AntonioLackland, Texas; Ellsworth AFB, South Dakota; and Peterson AFB, Colorado.

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), AFJAGS developed and deployed the General CourtMartial Convening Authority (GCMCA) Training and Resource Guide. These training 

materials are designed to facilitate in person, “table top” refresher training to GCMCAs, 

administered by their respective SJAs. The training materials consist of a compact, 
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comprehensive set of PowerPoint slides with detailed instructor notes for the SJAs 

briefing their GCMCAs and a stand-alone Resource Guide. This guide has bullet 

background papers on topics of particular interest to the successful administration of 

GCMCA duties, ranging from administrative discharges; nonjudicial punishment, courtsmartial; and sexual assault prevention and response. AFJAGS will annually review, 

update and redistribute these materials to all Major Command (MAJCOM) SJAs . 

 Finally, under the direction of the Professional Development Directorate (JAX) 

and in conjunction with the Air Force Legal Operations Agency (AFLOA) and MAJCOM 

SJAs, AFJAGS prepared 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. Review and finalization of the CFETP is an ongoing project, 

but its preliminary draft sets military justice training standards at three AFJAGS courses. 

Those include the Judge Advocate Staff Officer Course (initial training for new Judge 

Advocates), Gateway and the Staff Judge Advocate Course.

LEGAL INFORMATION SERVICES

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 development planning and requirements validation 

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), Judicial 

Docketing System (JDS), and other disciplinary-related applications hosted by JAS. 

Working with the Air Force’s Deputy Chief Management Officer and its consulting 

contractors, JAS and the JAG Corps military justice subject matter experts compiled a 

contextual model and data reference model, in addition to performing course of action 

analysis, which are Step 3 deliverables pursuant to the Air Force’s Service 

Development and Delivery Process (SDDP). The Step 3 requirements are complete 

and the Bounded User Requirements (BUR) document has been approved. JAS is 

working with the Air Force Life Cycle Management Center’s (AFLCMC) Business and 

Enterprise Systems Directorate (PEO-BES) on preparing the requirements for 

solicitation and acquisition as well as working with JAX on funding.

As reported last year, when the Air Force initiated the SVC program in January 

2013, JAS deployed a SharePoint site for use by SVCs to track cases; the SharePoint 

site was designed as a temporary solution until a more robust case manager could be 

acquired and developed. After learning of a commercial case management software 

(OpenText Cordys) hosted by the Defense Logistics Agency (DLA), in September 2015 

JAS contracted through DLA for the development of an SVC Case Manager System. 

The design phase was completed in late December 2015 and initial program testing 

began in October 2016. Although testing was initially successful, DLA has experienced 
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difficulty deploying the program to its production environment, delaying the release into 

2017. While addressing SVCs’ need for a case management system, the project also 

serves as a pilot program for assessing whether the Cordys software is scalable for the 

JAG Corps’ larger Disciplinary Case Management System requirements. 

While planning to replace AMJAMS, JAS continued to coordinate with JAJM on 

needed upgrades to AMJAMS to maintain its usefulness pending funding and 

acquisition of a replacement DCMS. Two upgrade releases to AMJAMS in early 2015 

implemented security upgrades. Two additional releases in December 2015 and 

January 2016 included, respectively, the ability to generate the new Report of Result of 

Trial Memorandum and verification of adjudged findings and sentences in courts-martial 

by NAF/MAJCOM legal offices. Additionally, AMJAMS was modified to allow automatic 

publication of court-martial results to the JAG Corps “Public Docket” webpage, 

increasing transparency of military justice processes.

SPECIAL VICTIMS’ COUNSEL DIVISION

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 SVPs provide 

exceptional representation and advocacy for RegAF members and reservists, 

regardless of the accused’s status, and for dependents, retirees, Cadets and DoD 

civilians, when the accused is subject to the UCMJ. 

During FY 16, 10 new SVC offices opened, increasing from 33 SVCs in 32 

locations to 45 SVCs in 42 locations. At end of the fiscal year, all 6 SSVCs billets, 45 of 

50 SVCs billets and 25 of 46 SVPs billets were filled. This gap in SVPs reflects the 

additional 21 billets funded in FY 16, which we anticipate filling in FY 17. The 

headquarters staff continues to include a Colonel (O-6) SVC Program Chief, Lieutenant 

Colonel (O-5) Deputy Chief, GS-14 Associate Chief and Master Sergeant (E-7) 

Paralegal Manager. This spring, the O-5 Senior SVC (SSVC) responsible for appellate 

practice and outreach received the Harmon Award as the Air Force Judge Advocate 

General’s Corps’ Reserve Field Grade Officer of the Year. Her exceptional leadership, 

superior dedication and outstanding service, particularly to the Program’s provision of 

service to victims during the appellate process, earned her this prestigious award.

As mentioned previously, the program’s 21 additional SVP billets will expand the 

capability and capacity of the SVC program. Currently, the SVC Program has 25 SVPs. 

The additional 21 SVPs will ensure direct paralegal support at each SVC office worldwide. SVPs play a vital role by increasing accessibility to information for clients and 

assisting the SVC with interviews, particular with child victims. SVPs significantly 

expand program outreach by essentially doubling the number of available briefers. 

Finally, SVPs assisted with the procurement of equipment and establishment of new 

SVC offices world-wide.
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The SVC Division continuously educates airmen and promotes SVC services. 

Division personnel provide briefings at formal training courses conducted at Maxwell 

AFB including Commissioned Officer Training, Air Command and Staff College, Air War 

College, the Senior Enlisted Legal Orientation Course, the Senior Officer Legal 

Orientation Course and many of the JAG Corps courses held at AFJAGS. Locally, 

SVCs and SVPs brief new airmen at the First Term Airman Course and Newcomers 

Briefings as well as senior base leaders at Wing Staff meetings and First Sergeants

Symposia and Breakfasts. SVCs instructed other JAG Corps members in venues such 

as the Annual Survey of the Law and the AFCAT, and through innovative means such 

as webcasts and video teleconferences. Because SVCs represent victims only upon 

their request, SVCs continue to educate referring agencies at Sexual Assault Response 

Coordinators courses and Air Force Office of Special Investigations Sexual Crimes 

Intermediate Training programs. 

SVCs continue to broaden their scope of representation beyond the courtroom. 

Victims frequently support alternative dispositions in their cases. As such, SVCs have 

represented clients in administrative discharge boards when accuseds have been 

subject to discharge, as well as advocated to commanders during the nonjudicial 

punishment process by providing Victim Impact Statements. Victims may also be the 

subject of an administrative hearing based upon perceived poor performance or 

collateral misconduct. One SVC has served as co-defense counsel at a client’s 

Credentialing Board where the client successfully retained her medical license. Another 

SVC represented a client in a Merit Systems Protection Board hearing where her 

witness testimony was key to the offender’s termination. In the development of DoD 

civilian employee representation, an SVC advised her client in an Equal Opportunity 

informal mediation hearing. In a different case, the same SVC actively worked on her 

civilian client’s behalf to obtain a Permanent Change of Station and convinced the 

GCMCA to impose non-judicial punishment on an O-6 offender.

The Air Force SVC Program Chief led the coordination for the DoD’s response to 

the FY 16 National Defense Authorization Act requirement to establish SVC program 

oversight, guiding principles, and standardization of training and performance 

measures. Subsequently, the Program Chief was appointed by the DoD General 

Counsel as the inaugural Chairperson of the SVC/VLC Inter-service Coordination 

Committee, which is charged with ensuring program coordination among the Services 

and collaboration of best practices and lessons learned as the programs continue to 

develop. SVC Program leadership also worked closely with the DoD Sexual Assault 

Prevention and Response Retaliation Working Group. The SVC program submitted 

exceptional examples of the support and advocacy they provide clients as part of the 

required quarterly reports regarding incidents and resolution. 

At the end of FY 16, SVCs had represented 2,692 victims over the life of the 

program, of which 79 were children. As the year closed, the SVC program was actively 

representing 1,333 clients, of which 61 were children. During the fiscal year, SVCs 

participated in 124 preliminary hearings and represented clients in 124 courts-martial, of 

which 12 involved child victims. SVCs advocated to ensure their clients’ rights and 
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privileges were protected through 97 motions. Further, SVCs represented clients in 406 

interviews with investigators, defense counsel, and trial counsel. Outside the military 

justice process, SVCs maximized the opportunity to ensure client safety and well-being 

through expedited transfers, including assisting a client who was the victim of the Article 

120c, UCMJ, offense of broadcasting or distributing explicit images and facilitating the 

transfer of an accused at the request of a RegAF member’s dependent victims.

SVC client feedback about their experience with the SVC Program continues to 

be overwhelmingly positive. An impressive 86% of clients surveyed indicated they were 

"extremely satisfied" with their SVC's representation and 13% were “satisfied,” resulting 

in an overall 99% satisfaction rate. Importantly, 99% of those surveyed would 

recommend other victims request an SVC and extraordinarily, that percentage has 

remained the same in 2014, 2015 and 2016. 

PERSONNEL

As of 30 September 2016, the Air Force Judge Advocate General's Corps had 

1,278 judge advocates on active duty. Company grade officers (lieutenants and 

captains) made up 47% (601) of that number. Approximately 25% (318) were majors 

and approximately 19% (237) were lieutenant colonels. Colonels and above, including 

one lieutenant general, one major general, and one brigadier general, comprised 

approximately 10% (123) of the Corps. As of 30 September 2016, there were 829 

paralegals on active duty. Senior airmen and below made up approximately 27% (226) 

of that number. Staff sergeants made up approximately 23% (188), while 28% (232) 

were technical sergeants, and master sergeants made up approximately 16% (137). 

Senior master and chief master sergeants made up 4% (32) and 2% (14) respectively. 

In addition, there were 906 DAF full-time civilians, of which 59% (536) were attorneys 

and 41% (370) were non-attorneys. Grade breakdown includes 317 GS-11s and below, 

67 GS-12s, 133 GS-13s, 192 GS-14s and 197 GS-15s. The Air Reserve Component 

(ARC) of the JAG Corps included 971 Air Reserve Individual Mobilization Augmentee 

(IMA), Air Force Traditional Reserve unit-assigned, and Air National Guard judge 

advocates, of which 26% (252) were company grade officers (lieutenants and captains) 

and 62% (599) were field grade officers (majors and lieutenant colonels). The 

remaining 12% consisted of 113 colonels, three brigadier generals, and two major 

generals. The ARC also includes 389 paralegals, of which 5% (21) were airmen or 

airmen first class, 11% (44) were senior airmen, 25% (98) were staff sergeants, 28% 

(109) were technical sergeants, 28% (110) were master sergeants, 4% (15) were senior 

master sergeants, and 3% (13) were chief master sergeants.

CHRISTOPHER F. BURNE

Lieutenant General, USAF

The Judge Advocate General
122

TYPE COURT TRIED CONVICTED ACQUITTALS

RATE OF INCREASE(+)/

DECREASE (-) OVER

LAST REPORT

GENERAL 245 159 74 21.89%

BCD SPECIAL 230 82 29 1.77%

NON-BCD SPECIAL [A] 118 3.51%

SUMMARY 94 89 5 -3.09%

OVERALL RATE OF INCREASE ( + ) / DECREASE ( - ) OVER LAST REPORT 8.59%

97

53

82

139

82

16

TOTAL ON HAND BEGINNING OF PERIOD 226

 GENERAL COURTS-MARTIAL 158

 BCD SPECIAL COURTS-MARTIAL 68

221

 GENERAL COURTS-MARTIAL 139

 BCD SPECIAL COURTS-MARTIAL 82

TOTAL CASES REVIEWED 192

 GENERAL COURTS-MARTIAL 135

 BCD SPECIAL COURTS-MARTIAL 57

TOTAL PENDING AT CLOSE OF PERIOD 255

 GENERAL COURTS-MARTIAL 162

 BCD SPECIAL COURTS-MARTIAL 93

-3.52%

NUMBER 220

PERCENTAGE 99.55%

72.40%

-9.12%

7.91%

-6.76%

5.73%

RATE OF INCREASE (+)/DECREASE (-) OVER NUMBER OF CASES REVIEWED 

DURING LAST REPORTING PERIOD (192/199)

Period: Fiscal Year 2016

PART 1 - BASIC COURTS-MARTIAL STATUS (Persons)

PART 2 - DISCHARGE APPROVED

GENERAL COURTS-MARTIAL (CA LEVEL)

 NUMBER OF DISHONORABLE DISCHARGES [B]

 NUMBER OF BAD CONDUCT DISCHARGES

SPECIAL COURT-MARTIAL (CA LEVEL)

 NUMBER OF BAD CONDUCT DISCHARGES

PART 3 - RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

PART 4 - WORKLOAD OF THE AIR FORCE COURT OF CRIMINAL APPEALS

REFERRED FOR REVIEW

FOR EXAMINATION UNDER ARTICLE 69 - GENERAL COURTS-MARTIA

FOR REVIEW UNDER ARTICLE 66 - BCD SPECIAL COURTS-MARTIAL

FOR REVIEW UNDER ARTICLE 66 - GENERAL COURTS-MARTIAL

PART 5 - APPELLATE COUNSEL REQUESTS BEFORE THE AIR FORCE COURT OF CRIMINAL APPEA

PART 6 - U.S. COURT OF APPEALS FOR THE ARMED FORCES

PERCENTAGE OF AFCCA REVIEWED CASES FORWARDED TO USCAAF (139/192)

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD

PERCENTAGE OF TOTAL PETITIONS GRANTED (11/139)

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS REPORTING PERIOD

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES REVIEWED BY AFCCA (11/1

RATE OF INCREASE ( + ) / DECREASE ( - ) OVER NUMBER OF CASES REVIEWED

DURING LAST REPORTING PERIOD -6.23%
123

PENDING AT BEGINNING OF PERIOD 0

5

5

0

3

2

0

TOTAL PENDING AT END OF PERIOD 0

TRIALS BY MILITARY JUDGE ALONE 284

 GENERAL COURTS-MARTIAL 132

 SPECIAL COURTS-MARTIAL 152

TRIALS BY MILITARY JUDGE WITH MEMBERS 178

 GENERAL COURTS-MARTIAL 101

 SPECIAL COURTS-MARTIAL 77

NUMBER OF COMPLAINTS 47

AVERAGE ACTIVE DUTY STRENGTH 308,190

NUMBER OF CASES WHERE NONJUDICIAL PUNISHMENT IMPOSED 3,954

12.83%

RATE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS PERIOD -1.86%

RATE PER 1,000

EXPLANATORY NOTES

[A] Of the 229 SPCMs tried and acted upon, there were 82 convictions with a BCD adjudged and 

approved, 118 convictions without a BCD adjudged and approved, and 29 acquittals.

[B] This includes 23 officer dismissals and 74 enlisted dishonorable discharges.

 GRANTED 

 DENIED

 NO JURISDICTION

 WITHDRAWN

PART 8 - ORGANIZATION OF COURT

PART 9 - COMPLAINTS UNDER ARTICLE 138

PART 10 - STRENGTH

PART 11 - NONJUDICIAL PUNISHMENT (ARTICLE 15)

DISPOSED OF

PART 7 - APPLICATIONS FOR RELIEF, ARTICLE 69(b)

RECEIVED
124

SECTION 6

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE COAST GUARD
125

REPORT OF THE JUDGE ADVOCATE GENERAL OF THE U. S. COAST GUARD

October 1, 2015 to September 30, 2016

PERSONNEL AND TRAINING

The Coast Guard has 210 officers designated as judge advocates serving on 

active duty in both legal and non-legal assignments. Coast Guard lawyers also serve in 

legal billets outside the Coast Guard including the Staff Judge Advocate to Joint 

Interagency Task Force South and senior staff attorneys (O-4 and O-5) assigned to 

NORTHCOM, AFRICOM, SOUTHCOM, PACOM, the 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, 

Department of State, and Department of Homeland Security.

Fifty-three judge advocates are currently assigned in non-legal “out-of-specialty” 

billets. They include a Rear Admiral who serves as the First District Commander; a Rear 

Admiral who serves as Assistant Commandant for Command, Control, 

Communications, Computers, and Information Technology (C4IT) and Commander, 

Coast Guard Cyber Command; a Rear Admiral who serves as Deputy Director of 

Operations at U. S. Northern Command (NORTHCOM); and, most notably, an Admiral 

who serves as the Vice Commandant of the Coast Guard and is the first career Judge 

Advocate from any service to be promoted to the rank of Admiral and receive a fourth 

star. Other judge advocates in out-of-specialty assignments include command cadre of 

Coast Guard cutters, sectors, training centers, and support commands. The Coast 

Guard employs 102 civilian attorneys ranging from GS-13 to SES.

In fiscal year 2016, twenty-two 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 forty 

different courses of instruction during fiscal year 2016, primarily at the various service 

JAG schools. Nineteen Coast Guard officers are currently undergoing postgraduate 

studies to complete a JD degree and will be certified as judge advocates at the 

successful completion of their studies. Two judge advocates are attending the Graduate 

Course at the United States Army Judge Advocate General’s Legal Center and School 

(TJAGLCS) and another is a fellow at the Center for Law and Military Operations at 

TJAGLCS. Two judge advocates are pursuing Masters of Law (LLM) in Cyber Law and 

International Law. 
126

U. S. COAST GUARD COURT OF CRIMINAL APPEALS

The judges on the U.S. Coast Guard Court of Criminal Appeals at the end of 

fiscal year 2016 were:

Chief Judge Lane I. McClelland

Judge John F. Havranek

Judge Brian M. Judge

Judge Peter J. Clemens

Judge Scott C. Herman 

Judge Robert W. Bruce 

Judge Laurina M. Spolidoro

MILITARY JUSTICE ORGANIZATION

Fourteen Staff Judge Advocates (SJA) advise eighteen officers exercising 

general court-martial jurisdiction. Those fourteen SJAs as well as three additional 

independent duty SJAs at training centers 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, Defense Services Division, 

Office of Member Advocacy and Legal Assistance, which is a staff office reporting to the 

Deputy Judge Advocate General. Pursuant to an inter-service memorandum of 

understanding, the U.S. Navy provides trial defense counsel for Coast Guard courtsmartial. In return, seven Coast Guard attorneys are assigned to full time duty, typically 

for two-year assignments, at six Navy Defense Service Offices. 

The Coast Guard had two general court-martial trial judges and eight collateralduty special court-martial trial judges at the end of fiscal year 2016. 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 court-martial appeals 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 also serves as Chief Prosecutor. Three judge advocates are assigned 

primary duty as appellate government counsel. 

Additionally, the Coast Guard’s Special Victims’ Counsel (SVC) is staffed by 

three full-time SVCs stationed in Washington, DC, and three full-time SVCs, including 

the Program Deputy, stationed in Alameda, California. Fourteen 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.
127

MILITARY JUSTICE STATISTICS

Fiscal Year 16 15 14 13 12 11 10 

General Courts-Martial 17* 19 23 09 14 06 12 

Special Courts-Martial 15 13 22 14 14 32 20 

Summary Courts-Martial 22 23 30 20 17 19 09 

Total 54 55 75 43 45 57 41 

* This number does not include the case of United States v. Sullivan, which was 

deemed a mistrial after the general court-martial concluded. It is currently referred for 

re-trial in FY2017.

ADDITIONAL MILITARY JUSTICE STATISTICS

Appendix A contains the Coast Guard, fiscal year 2016 military justice statistics.

APPELLATE REVIEW PROCESS

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 21 of the 28 cases 

decided in fiscal year 2016. In United States v. Gomez and United States v. Mattingly, 

the court issued its decision twenty months after referral. In United States v. Ortega and 

United States v. Newmans, the court issued its decision twenty-one months after 

referral. In United States v. Sylvester, United States v. McCoy, and United States v. 

Bush, the court issued its decision nineteen months after referral. 

In fiscal year 2016, there were no court-martial convictions that were reversed 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 trial work for our judge advocates.

The Coast Guard has also started augmenting trial capabilities at the Legal 

Service Command (LSC). The LSC is the only legal office that has judge advocates 

serving full-time as trial counsel (a total of nine, including two dedicated senior trial 

counsel serving as “branch chiefs”). The LSC has also hired one full time civilian 

paralegal to work exclusively on military justice matters, and is in the process of hiring 
128

another. As part of a 2017 resource proposal, the LSC is expecting the addition an 

additional four O4s and four O3s in dedicated trial counsel positions. After the LSC 

receives these positions, it will be responsible for providing trial counsel services on all 

District and Area cases involving serious misconduct and all cases arising out of the 

DCMS field enterprise, which accounts for the vast majority of Coast Guard military 

justice prosecutions. 

Also, the Office of Military Justice provides technical support to staff judge 

advocates and trial counsel and has periodically participated in cases at the trial level. 

The GS-15, an experienced retired judge advocate, has served alongside judge 

advocates as trial counsel in a highly complex courts-martial. Additionally, the office 

publishes practices guides and training resources on a Coast-Guard wide information 

sharing website. 

In addition to military justice experience, many field legal offices maintain active 

Special Assistant U.S. Attorney (SAUSA) relationships with one or more U.S. Attorney 

offices. These assignments also develop judge advocates’ trial and advocacy skills. 

Coast Guard SAUSAs generally prosecute felony cases arising out of Coast Guard 

operations. Five full-time SAUSAs 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. There are also many collateral duty 

SAUSA relationships around the country with Coast Guard judge advocates assisting in 

prosecution of not only drug and migrant smuggling cases, but other issues ranging 

from environmental crimes to seaman's manslaughter.

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. In Fiscal Year 2016, Coast Guard 

counsel also attended the American University Advanced Trial Advocacy training 

program and the Marine Corps Trial Counsel Assistance Program annual training.

The Coast Guard had two full time general court-martial judges, along with eight 

collateral duty judges who hear only special courts-martial, this fiscal year. Starting in 

the summer of 2017, the Coast Guard will have three full time court-martial judges (1 

CAPT, as the Chief Trial Judge, and 2 CDRs) who will hear all court-martial cases. 

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 Joint Annual Military Judges Training (JMJAT). 

Several Coast Guard judges have also pursued individual courses as well as successful 
129

completion of certificates from the National Judicial College in Reno, Nevada, and are 

members of the National Conference of Specialized Court Judges of the ABA Judicial 

Division.

To date the Coast Guard has not tried a national security case. As a matter of 

policy, the Coast Guard does not try capital cases. If it were necessary for the Coast 

Guard to try of a case of such seriousness that it could be referred as capital under the 

UCMJ, the Coast Guard would refer the case as a non-capital general court-martial and 

rely on the assistance of the other services to ensure proficient prosecution and 

defense.

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 consistently provides adequate resources to its legal program 

to perform its military justice functions. Its experienced Judge Advocates are proficient 

in their performance of military justice responsibilities. The Judge Advocate General 

chartered a working group that studied the Coast Guard’s military justice system and 

proposed ways to increase the proficiency of its practice. We are continuing to 

implement, in phases, the various recommendations as to ensure continuity of service. 

The service Attorneys are supported by civilians and enlisted personnel in the yeoman 

rating sufficient in number to support the mission. In addition, the Coast Guard is still 

examining the feasibility of creating a separate enlisted legalman rate to provide both 

increased support and professional development of the enlisted workforce. 

S. J. ANDERSEN

Rear Admiral, U. S. Coast Guard

Judge Advocate General of the Coast Guard
130

APPENDIX A: U.S. COAST GUARD MILITARY JUSTICE STATISTICS

Report Period: 1 OCTOBER 2015 - 30 SEPTEMBER 2016

PART 1 - BASIC COURTS-MARTIAL STATISTICS (Persons)

TYPE COURT TRIED CONVICTE

D

ACQUITTALS

RATE OF INCREASE 

(+)/ DECREASE (-) 

OVER LAST 

REPORT

GENERAL [A] 17 15 02 6.25%

BCD SPECIAL 15 13 02 -6.25%

NON-BCD SPECIAL [B] 0 0 00 0%

SUMMARY 22 22 00 -4.35%

OVERALL RATE OF INCREASE (+)/DECREASE (-) OVER LAST 

REPORT 

-4.35%

PART 2 – DISCHARGES APPROVED

GENERAL COURTS-MARTIAL 

 NUMBER OF DISHONORABLE DISCHARGES 04

 NUMBER OF BAD-CONDUCT DISCHARGES 03

 NUMBER OF DISMISSALS 02

SPECIAL COURTS-MARTIAL 

 NUMBER OF BAD-CONDUCT DISCHARGES 05

PART 3 – RECORDS OF TRIAL RECEIVED FOR REVIEW BY JAG

FOR REVIEW UNDER ARTICLE 66 – GENERAL 

COURTS-MARTIAL

10

FOR REVIEW UNDER ARTICLE 66 – BCD SPECIAL 

COURTS-MARTIAL

5

FOR EXAMINATION UNDER ARTICLE 69 – GENERAL 

COURTS-MARTIAL

8

PART 4 – WORKLOAD OF THE COAST GUARD COURT OF CRIMINAL APPEALS∗

TOTAL ON HAND BEGINNING OF 

PERIOD 36

 GENERAL COURTSMARTIAL20

 BCD SPECIAL COURTSMARTIAL16

REFERRED FOR REVIEW 16

 GENERAL COURTSMARTIAL11

 BCD SPECIAL COURTSMARTIAL05

TOTAL CASES REVIEWED 28

 GENERAL COURTSMARTIAL19

 BCD SPECIAL COURTSMARTIAL09
131

TOTAL PENDING AT CLOSE OF 

PERIOD

24

 GENERAL COURTSMARTIAL16

 BCD SPECIAL COURTSMARTIAL08

RATE OF INCREASE (+)/DECREASE (-) OVER 

NUMBER OF CASES

REVIEWED DURING LAST REPORTING PERIOD

+75%

PART 5 – APPELLATE COUNSEL REQUESTS BEFORE 

 U.S. COAST GUARD COURT OF CRIMINAL APPEALS (CCA)

NUMBER 16

PERCENTAGE 100%

PART 6 – ACTIONS OF THE U.S. COURT OF APPEALS FOR THE ARMED FORCES

PERCENTAGE OF CCA-REVIEWED CASES IN WHICH THE ACCUSED 

PETITIONED CAAF FOR REVIEW 

16/28 

57.1%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS 

REPORTING PERIOD 

+71.5%

PERCENTAGE OF TOTAL PETITIONS GRANTED 

4/16

25%

PERCENTAGE OF INCREASE (+)/DECREASE (-) OVER PREVIOUS 

REPORTING PERIOD 

-58.3%

PERCENTAGE OF PETITIONS GRANTED OF TOTAL CASES 

REVIEWED BY CGCCA 4/28

14.3%

RATE OF INCREASE (+)/DECREASE (-) OVER THE NUMBER OF 

CASES REVIEWED DURING LAST REPORTING PERIOD 

-23.9%
132

U.S. COAST GUARD MILITARY JUSTICE STATISTICS - CONT’D

Explanatory Notes

[A] As above, this number does not include the case of United States v. Sullivan, which 

was deemed a mistrial after the general court-martial concluded. It is currently referred 

for re-trial in FY2017.

[B] As a matter of practice, the Coast Guard does not try non-BCD special courtsmartial.

PART 7 – APPLICATIONS FOR RELIEF UNDER ARTICLE 69, UCMJ

TOTAL PENDING BEGINNING OF 

PERIOD 105

RECEIVED 26

DISPOSED OF 39

 GRANTED 02

 DENIED 37

 NO JURISDICTION 00

 WITHDRAWN 00

TOTAL PENDING AT END OF 

PERIOD 92

PART 8 – ORGANIZATION OF COURTS

TRIALS BY MILITARY JUDGE ALONE 20

GENERAL COURTS-MARTIAL 11

SPECIAL COURTS-MARTIAL 09

TRIALS BY MILITARY JUDGE WITH MEMBERS 12

GENERAL COURTS-MARTIAL 06

SPECIAL COURTS-MARTIAL 06

PART 9 – COMPLAINTS UNDER ARTICLE 138, UCMJ

NUMBER OF COMPLAINTS 03

PART 10 – STRENGTH

AVERAGE ACTIVE DUTY STRENGTH 40,992

PART 11 – NONJUDICIAL PUNISHMENT (ARTICLE 15, UCMJ)

NUMBER OF CASES WHERE NONJUDICIAL 

PUNISHMENT IMPOSED 450

RATE PER 1,000 11%

RATE OF INCREASE (+)/DECREASE (-) OVER 

PREVIOUS PERIOD -17%