Defense Advisory Committee

on Investigation, 

Prosecution, and Defense

of Sexual Assault

in the Armed Forces

March 2020

Fourth Annual Report

Defense Advisory Committee

CHAIR

Ms. Martha S. Bashford

MEMBERS

Major General Marcia M. Anderson, U.S. Army, Retired

The Honorable Leo I. Brisbois

Ms. Kathleen B. Cannon

Ms. Margaret A. Garvin

The Honorable Paul W. Grimm

Mr. A. J. Kramer

Ms. Jennifer Gentile Long

Mr. James P. Markey

Dr. Jenifer Markowitz

Chief Master Sergeant of the Air Force Rodney J. McKinley, U.S. Air Force, Retired

Brigadier General James R. Schwenk, U.S. Marine Corps, Retired

Dr. Cassia C. Spohn

Ms. Meghan A. Tokash

The Honorable Reggie B. Walton

STAFF DIRECTOR

Colonel Steven B. Weir, Judge Advocate General’s Corps, U.S. Army

DEPUTY STAFF DIRECTOR

Ms. Julie K. Carson

CHIEF OF STAFF

Mr. Dale L. Trexler

DESIGNATED FEDERAL OFFICER

Mr. Dwight H. Sullivan

Defense Advisory Committee on 

Investigation, Prosecution, and 

Defense of Sexual Assault 

in the Armed Forces

Fourth Annual Report

March 2020

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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

THE DEFENSE ADVISORY COMMITTEE ON

INVESTIGATION, PROSECUTION, AND DEFENSE OF

SEXUAL ASSAULT IN THE ARMED FORCES

ONE LIBERTY CENTER • 875 NORTH RANDOLPH STREET • SUITE 150 • ARLINGTON • VIRGINIA 22203

March 30, 2020 

The Honorable James Inhofe The Honorable Jack Reed 

Chairman Ranking Member 

Committee on Armed Services Committee on Armed Services 

United States Senate United States Senate 

Washington, DC 20510 Washington, DC 20510 

The Honorable Adam Smith The Honorable Mac Thornberry 

Chairman Ranking Member 

Committee on Armed Services Committee on Armed Services 

U.S. House of Representatives U.S. House of Representatives 

Washington, DC 20515 Washington, DC 20515 

 

The Honorable Mark T. Esper 

Secretary of Defense 

1000 Defense Pentagon 

Washington, DC 20301 

Dear Chairs, Ranking Members, and Mr. Secretary: 

 We are pleased to provide you with the Defense Advisory Committee on Investigation, 

Prosecution, and Defense of Sexual Assault in the Armed Forces [DAC-IPAD] March 2020 

Fourth Annual Report in accordance with section 546 of the National Defense Authorization Act 

for Fiscal Year 2015 (Public Law 113-291), as amended, describing the Committee’s activities 

over the previous 12 months. 

 The report first sets forth the Committee’s three findings and nine observations from the 

culmination of the DAC-IPAD Case Review Working Group’s examination of over 2,000 

military investigative case files for investigations closed in fiscal year 2017 involving an active 

duty Service member alleged to have committed a penetrative sexual offense against an adult 

victim. The Committee’s findings are related to victims’ statements to military investigators, 

investigator discretion in tailoring an investigation to the specific facts of an alleged sexual 

offense, and the frequency of adverse administrative actions taken against subjects prior to the 

determination of whether charges will be preferred against the subject. 

 The report also provides an update regarding the DAC-IPAD Policy Working Group’s indepth study of reforms to the preliminary hearing and court-martial referral processes under 

Articles 32, 33, and 34 of the Uniform Code of Military Justice, as requested by the Acting 

General Counsel for the Department of Defense. Further, the report includes an overview of the 

Committee’s analysis of and six recommendations related to the Department of Defense’s initial 

Report on Allegations of Collateral Misconduct Against Individuals Identified as the Victim of 

Sexual Assault in the Case Files of a Military Criminal Investigative Organization, in accordance 
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2 

with section 547 of the FY19 NDAA (Public Law 115-232), originally submitted to the 

Secretary of Defense by the Committee Chair in September 2019. 

In November 2019, the DAC-IPAD issued its Court-Martial Adjudication Data Report,

which provided case characteristics and adjudication outcomes for sexual offense cases closed in 

fiscal years 2015 through 2018, including a multivariate statistical analysis prepared by a 

professional criminologist that identified patterns in the data. The present report also includes a 

summary of that data and a description of planned military installation site visits. 

The members of the DAC-IPAD would like to express our sincere gratitude and 

appreciation for the opportunity to make use of our collective experience and expertise in this 

field to develop recommendations for improving the military’s response to sexual misconduct 

within its ranks. 

Respectfully submitted,

______________________________ 

Martha S. Bashford, Chair

______________________________ ______________________________ 

Marcia M. Anderson Leo I. Brisbois

______________________________ ______________________________ 

Kathleen B. Cannon Margaret A. Garvin 

______________________________ ______________________________ 

Paul W. Grimm A. J. Kramer

______________________________ ______________________________ 

Jennifer Gentile Long James P. Markey

______________________________ ______________________________ 

Jenifer Markowitz Rodney J. McKinley

______________________________ ______________________________ 

James R. Schwenk Cassia C. Spohn

______________________________ ______________________________ 

Meghan A. Tokash Reggie B. Walton
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CONTENTS

EXECUTIVE SUMMARY 1

SUMMARY OF FINDINGS, OBSERVATIONS, AND RECOMMENDATIONS . . . . . . . . .5

INTRODUCTION 13

I. Committee Establishment and Mission . . . . . . . . . . . . . . . . . . . . 13

II. Composition of the Committee 13

III. Working Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

IV. Previous Committee Reports . . . . . . . . . . . . . . . . . . . . . . . 14

V. Fourth Annual Report – March 2020 . . . . . . . . . . . . . . . . . . . . . 17

CHAPTER 1. FINDINGS AND OBSERVATIONS BASED ON THE REVIEW 

OF MCIO PENETRATIVE SEXUAL OFFENSE INVESTIGATIVE CASE FILES 

CLOSED IN FISCAL YEAR 2017 19

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

II. Current Status of Case Review Project 21

III. Findings Based on the Review of MCIO Penetrative Sexual Offense Investigative Case Files 

Closed in Fiscal Year 2017 . . . . . . . . . . . . . . . . . . . . . . . . 22

IV. Observations Based on the Review of MCIO Penetrative Sexual Offense Investigative Case 

Files Closed in Fiscal Year 2017 28

V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

CHAPTER 2. ARTICLE 32, UCMJ, PRELIMINARY HEARINGS AND 

THE COURT-MARTIAL REFERRAL PROCESS 43

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

II. The Way Ahead . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

III. Overview of Information Collected to Date by the DAC-IPAD Regarding Article 32, UCMJ, 

Preliminary Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . 45

IV. Overview of Information Collected to Date by the DAC-IPAD Regarding the Referral Process . . . 55

V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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CHAPTER 3. SEXUAL OFFENSE COURT-MARTIAL CASE ADJUDICATION TRENDS 

AND ANALYSIS 57

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

II. Methodology of the Data Working Group . . . . . . . . . . . . . . . . . . . 57

III. Military Justice Information for Sexual Offense Cases Collected by the DAC-IPAD . . . . . . 58

IV. Case Adjudication Database Way Ahead . . . . . . . . . . . . . . . . . . . . 62

CHAPTER 4. ANALYSIS OF THE DRAFT DEPARTMENT OF DEFENSE INITIAL 

SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT 63

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

II. Analysis of and Recommendations Regarding DoD’s Initial Sexual 

Assault Victim Collateral Misconduct Report . . . . . . . . . . . . . . . . . . 64

III. Dissenting Opinions on the Definition of Collateral Misconduct . . . . . . . . . . . . 74

IV. Department of Defense Response to the DAC-IPAD’s Letter 74

CHAPTER 5. MILITARY INSTALLATION SITE VISITS AND MEMBER OBSERVATION OF 

PENETRATIVE SEXUAL OFFENSE COURTS-MARTIAL 75

I. Background 75

II. Military Installation Site Visits 75

III. DAC-IPAD Member Observation of Sexual Offense Courts-Martial . . . . . . . . . . . 76

APPENDIXES 

A. Committee Authorizing Statute, Amendments, and Duties . . . . . . . . . . . . . . A-1

B. Committee Charter and Balance Plan . . . . . . . . . . . . . . . . . . . . . B-1

C. Committee Members . . . . . . . . . . . . . . . . . . . . . . . . . . C-1

D. Committee Professional Staff . . . . . . . . . . . . . . . . . . . . . . . D-1

E. Committee Recommendations to Date . . . . . . . . . . . . . . . . . . . . E-1

F. Committee Requests for Information (Sets 11–15) . . . . . . . . . . . . . . . . . F-1

G. September 16, 2019, Letter from DAC-IPAD Chair Martha S. Bashford to the Secretary of 

Defense Submitting the Committee’s Analysis of and Recommendations Related to the 

Department of Defense Initial Sexual Assault Victim Collateral Misconduct Report G-1

H. October 2, 2019, Letter from the Department of Defense General Counsel to DAC-IPAD Chair 

Martha S. Bashford Responding to the Committee’s Analysis of and Recommendations Related 

to the Department of Defense Initial Sexual Assault Victim Collateral Misconduct Report H-1

I. Committee Public Meetings, Preparatory Sessions, and Presenters . . . . . . . . . . . . I-1

J. Acronyms and Abbreviations . . . . . . . . . . . . . . . . . . . . . . . J-1

K. Sources Consulted K-1
1

EXECUTIVE SUMMARY

EXECUTIVE SUMMARY

In section 546 of the National Defense Authorization Act for Fiscal Year 2015 (FY15 NDAA), enacted on 

December 23, 2014, Congress directed the Secretary of Defense to establish the Defense Advisory Committee on 

Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) or Committee. Its 

authorizing legislation, as amended in 2019, charges the Committee to execute three tasks over a 10-year term:

1. To advise the Secretary of Defense on the investigation, prosecution, and defense of allegations of rape,

forcible sodomy, sexual assault, and other sexual misconduct involving members of the Armed Forces;

2. To review, on an ongoing basis, cases involving allegations of sexual misconduct for purposes of

providing advice to the Secretary of Defense; and

3. To submit an annual report to the Secretary of Defense and to the Committees on Armed Services of the

Senate and the House of Representatives describing the results of its activities during the preceding year

no later than March 30 of each year.

This is the fourth annual report of the DAC-IPAD; it describes the Committee’s activities and the topics examined 

over the previous 12 months. Between April 2019 and February 2020, the Committee held four public meetings 

during which it heard from 25 military justice experts, including four retired military judges, on topics including 

the acquittal and conviction rates for sexual offenses in the military; the Article 32, Uniform Code of Military 

Justice (UCMJ), preliminary hearing process; the Article 34, UCMJ, advice to convening authorities before referral 

to trial; the court-martial referral process; victim declination to participate in the military justice process; and the 

incidence of collateral misconduct by victims of sexual misconduct in the military. In addition to public meetings, 

the Committee and its three working groups held 13 administrative and preparatory sessions, and the seven 

members of the DAC-IPAD’s Case Review Working Group made a combined 42 trips to the DAC-IPAD office in 

Arlington, Virginia, to individually review investigative case files. 

The first chapter of this report sets forth the Committee’s findings and observations from the culmination of the 

examination by the DAC-IPAD Case Review Working Group of over 2,000 military investigative case files for 

investigations closed in fiscal year 2017 involving an active duty Service member alleged to have committed a 

penetrative sexual offense against an adult victim. By February 2020, working group members had individually 

reviewed 322 investigative case files and attorney-advisors from the DAC-IPAD’s professional staff had completed 

their review of all 2,055 of the cases provided by the military criminal investigative organizations. For each case, 

reviewers recorded more than 200 data elements that were encoded into an electronic database for analysis. The 

comprehensive statistical analysis of this extensive data set will be completed and published in a separate DACIPAD report. As a precursor to that statistical data analysis, in this report the Committee provides the members’ 

overall impressions after having completed the two-year investigative case review project. The Committee describes 

the most notable of its impressions in three findings as well as nine observations identified for further study in 

Chapter 1. 

First, the Committee found, based on the case files reviewed, that the statements of sexual assault victims taken 

by military criminal investigators often lacked sufficient detail and follow-up questioning to adequately assess the 

disposition of a case. While the limits in the content of these statements may have resulted from efforts by military 

investigators to implement more victim-centered investigation techniques, the Committee found that the lack 
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of victim-provided details or of victims’ responses to contradictions in the evidence leaves unresolved important 

questions whose answers could affect a convening authority’s disposition decision. 

The cases reviewed also affirmed an earlier finding—from the DAC-IPAD’s third annual report—that military 

investigators need discretion to pursue the specific investigatory steps relevant to each case, rather than follow 

the one-size-fits-all investigative approach typically observed in the case files reviewed. The Committee observed 

that the military investigations in general were extremely comprehensive; however, valuable time and resources 

were frequently expended to gather information irrelevant to the case at hand, including extensive interviews of 

co-workers, previous chains of command, family, and friends of both the victim and subject who were neither 

involved in the alleged incident nor otherwise aware of it. 

In addition, the Committee found that the length of time devoted to investigations that ultimately did not result 

in prosecution highlighted the need for a mechanism to determine when it is appropriate for a complaint to be 

closed. For example, in numerous cases reviewed, investigations continued for months following an alleged victim’s 

assertion, after a third-party report, that the incident in question was consensual or following a determination that 

the complaint itself did not meet the elements of a sexual offense. 

Finally, the Committee discovered during case reviews that adverse administrative actions and legal holds were 

routinely imposed on subjects by their commands immediately after an allegation of a sexual offense—often 

permanently and negatively affecting the subject’s career and personal life—irrespective of whether the allegation 

was ultimately determined to warrant preferral of criminal charges against the subject. The Committee was 

concerned that in light of the finding in its third annual report that the majority of penetrative sexual offense 

allegations do not result in the preferral of charges—an outcome that members who reviewed case files found to be 

reasonable in the great majority of cases—taking such administrative actions immediately may be premature and 

may often do permanent harm. 

In addition to its findings, the Committee identified nine issues during its case reviews that it plans to study further 

in the following months: the Article 30, UCMJ, direction that the convening authority’s disposition of charges 

should be made in the interest of “justice and discipline”; the weight given by convening authorities to victims’ 

preference as to the disposition of the case; the nature of the legal advice provided to initial disposition authorities; 

identification of the factors most significant to convening authorities in the Article 33, UCMJ, disposition 

guidance; the usefulness of the Article 32, UCMJ, preliminary hearing officer’s report; the effect of a determination 

of insufficient evidence to establish probable cause at the Article 32 preliminary hearing; the sufficiency of probable 

cause as a standard for referral of a case to trial; the usefulness of documentation by legal advisors of the sufficiency 

of the evidence in a case to obtain and sustain a conviction; and the usefulness to convening authorities of requiring 

staff judge advocates to provide the reasoning supporting their legal conclusions in their written Article 34, UCMJ, 

advice. 

Chapter 2 discusses the DAC-IPAD Policy Working Group’s plan for an in-depth study of the three 

recommendations made by the DAC-IPAD’s predecessor, the Judicial Proceedings Panel (JPP), and assigned to 

the Committee for review by the Acting General Counsel for the Department of Defense. Specifically, the JPP 

recommended that the DAC-IPAD continue to assess the effects of reforms to Articles 32, 33, and 34 of the UCMJ 

involving the preliminary hearing process, command disposition guidance, and the advice to convening authorities 

before referral to trial, gauging their current efficacy. This chapter provides a brief overview of those articles as well 

as a summary of the perspectives of various stakeholders within the Military Services’ legal organizations regarding 

the implementation of statutory reforms and related policies. Their perspectives were solicited by the Committee in 
3

EXECUTIVE SUMMARY

a request for written responses to questions submitted to each Service as well as through public testimony received 

from the Military Services’ chiefs of military justice, trial defense services chiefs, and victims’ counsel program 

managers. 

As part of its research, the Policy Working Group also used data compiled from the DAC-IPAD’s court-martial 

database to conduct an initial independent analysis of the Article 32, UCMJ, preliminary hearings held in cases 

completed in fiscal years 2017 and 2018. Specifically, the Committee reviewed the outcomes of cases in which a 

preliminary hearing officer did not find probable cause that one or more penetrative sexual offenses occurred—a 

combined total of 132 cases for both fiscal years. According to the working group’s analysis of the data, in nearly 

20% of those penetrative sexual offense cases for which a preliminary hearing was held, preliminary hearing officers 

determined that there was no probable cause to believe that one or more specifications of a penetrative sexual offense 

occurred. The data further indicated that convening authorities ultimately dismissed the penetrative sexual offenses 

in 66% of the Navy, Marine Corps, Air Force and Coast Guard’s combined cases for which the preliminary hearing 

officer determined there was no probable cause. For the Army, however, convening authorities dismissed just 33% of 

the cases of penetrative sexual offenses determined by a preliminary hearing officer to lack probable case. 

Chapter 3 provides a brief overview of the Committee’s annual collection and analysis of military case adjudication 

statistical data for adult-victim sexual offense cases in which charges were preferred for either penetrative or contact 

sexual offenses and in which final action on the case is complete. In November 2019 the DAC-IPAD issued its 

comprehensive Court-Martial Adjudication Data Report and detailed appendix, which provided case characteristics, 

disposition outcomes, and adjudication outcomes for these cases, including the sex, Service branch, and pay grade 

of the subject; relationship of the victim to the subject; nature of the charges; forum; and a multivariate statistical 

analysis prepared by a professional criminologist that identified patterns in the data for fiscal years 2015 through 

2018. Since the publication of that report, the Committee has collected and recorded additional case documents, 

including charge sheets, Article 32 reports, and Results of Trial forms, resulting in updated totals of 576 cases 

completed in fiscal year 2018, 698 cases completed in fiscal year 2017, 770 cases completed in fiscal year 2016, and 

781 cases completed in fiscal year 2015.This chapter also includes Military Service–level data such as conviction 

rates, acquittal rates, post-preferral case attrition rates, and alternative dispositions imposed for cases completed in 

fiscal year 2018. The Committee concludes the chapter by noting that it currently lacks the resources necessary to 

continue this annual court-martial data analysis going forward. 

Chapter 4 provides the Committee’s analysis and recommendations in response to a provision in the National 

Defense Authorization Act for Fiscal Year 2019 that requires the Secretary of Defense, “acting through” the DACIPAD, to prepare and submit biennial reports to Congress detailing the number of instances in which an individual 

who reports an incident of sexual assault is either “accused of” or receives adverse action as a result of misconduct 

engaged in that is collateral to the investigation of the sex offense, such as underage drinking, fraternization, or 

curfew violations. The data provided to the DAC-IPAD by the Department of Defense (DoD) for analysis indicated 

that between April 1, 2018, and March 31, 2019, there were 5,733 Service member victims of an alleged sexual 

offense, 331 (6%) of whom were “accused” of collateral misconduct. Eighty-one (24%) of the alleged victims 

accused of collateral misconduct received adverse action for it. 

In attempting to analyze the collateral misconduct information provided by DoD, the Committee noted that 

the Military Services varied—in some cases, widely—in the definitions and methodologies each employed to 

collect its data for the report. The inconsistencies across the Services rendered the data impossible to meaningfully 

analyze. The DAC-IPAD submitted a letter to the Secretary of Defense in September 2019 that described its 

concerns about inconsistencies in the collection of data and provided six recommendations intended to improve 
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the usefulness of the information concerning instances of collateral misconduct reported to Congress in the future. 

The recommendations included specific definitions for the terms “collateral misconduct,” “adverse action,” and 

“suspected of,” among others; a standard methodology for the collection of data; additional relevant data elements; 

and also the implementation by DoD of standardized internal documentation for sexual offense cases involving 

Service member victims accused of engaging in collateral misconduct as defined for purposes of the required 

reporting to Congress.

Finally, Chapter 5 provides an overview of planned military installation site visits. The purpose of these visits is to 

seek the perspectives of military legal practitioners, commanders, and criminal investigators in the field on issues 

identified by the Committee for further study regarding the investigatory, pretrial, and court-martial processes for 

sexual offense cases. The Committee has also decided to encourage members to attend and observe courts-martial 

involving charges of a penetrative sexual offense. The in-person observation of courts-martial will provide members 

with a critical firsthand perspective on current military trial practice in each of the Military Services.

Having now completed three years of intensive study and analysis of the critically important and complex issue of 

sexual assault in the Armed Forces, the DAC-IPAD members would like to express their sincerest appreciation and 

deepest gratitude to the extremely gracious Service members and civilian presenters as well as to the members of 

the public who have shared their experiences and perspectives with the Committee over that time. The Committee 

also offers a special note of thanks to its dedicated Military Service representatives, who attended all of the public 

meetings, quickly and efficiently guided information requests through their Services, and provided excellent support 

to the Committee. The Committee members are forever grateful for the service, expertise, and professionalism of 

these exceptional individuals.
5

SUMMARY OF FINDINGS, OBSERVATIONS, AND RECOMMENDATIONS

SUMMARY OF FINDINGS, OBSERVATIONS, AND 

RECOMMENDATIONS

SUMMARY OF DAC-IPAD INVESTIGATIVE CASE REVIEW FINDINGS AND OBSERVATIONS*1

Victim Interviews by Military Investigators

• Finding 44: Statements of sexual assault victims taken by military criminal investigators often lacked

sufficient detail and appropriate follow-up questioning by the investigator. The lack of detail and follow-up

questioning in these statements made it difficult to properly assess an appropriate disposition for the case.

• Assessment: The Case Review Working Group will continue to explore this issue by reviewing and assessing

additional information, including that obtained through site visits.

Investigator Discretion and Case Closure Procedures

• Finding 45: Investigators need discretion to tailor an investigation to the specific facts of the complaint,

and there needs to be a mechanism early in the investigation for assessing whether it is appropriate for a

complaint to be closed.

a. Investigation and resolution of sexual assault complaints frequently take longer than the facts

necessitate.

b. All complaints receive the same level of investigation, and thus the investigation is not tailored to

the allegation.

c. In some cases, investigations continue irrespective of the victim’s preference, even when the victim

asserts there was no sexual assault, or when the elements of a sexual assault were not established.

d. The Case Review Working Group review of investigative case files leads the Committee to conclude

that this practice of untailored investigations is not an effective use of time and resources; it

confirms the Committee’s previous finding from March 2019, which was based on testimony from

military investigators.

• Assessment: The Case Review Working Group will continue to explore this issue by reviewing and assessing

additional information.

Adverse Administrative Actions Taken Against Subjects Following Sexual Offense Allegations

• Finding 46: Immediately following an allegation of sexual assault, the subject’s command routinely imposes

some form of administrative action, including, but not limited to, suspension of security clearances and

administrative holds prohibiting favorable personnel actions such as promotions, educational opportunities,

moves, and awards. These actions have a negative personal and professional impact on the subject.

* Findings 1–43 were included in previous DAC-IPAD reports.
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• Assessment: The Case Review Working Group will continue to explore this issue by reviewing and assessing

additional information, including that obtained through site visits.

The Convening Authority’s Disposition of Charges and Specifications “in the Interest of Justice and 

Discipline”

• Observation 1: Article 30, UCMJ, directs that commanders and convening authorities determine

what disposition should be made of charges “in the interest of justice and discipline.” Our review of

investigative files, Article 32 reports, Article 34 advice, and the disposition action of commanders and

convening authorities found that in cases in which the rationale for the disposition decision was indicated,

the following factors were primary: probable cause, sufficiency of the evidence, multiple victims, victim

preference, and the declination of other jurisdictions to prosecute. These factors seem to be considerations

related to “the interest of justice.” We did not observe separate considerations related to “the interest of

discipline.”

Disposition Guidance 

• Observation 2: In many cases, the victim’s preference as to disposition seems to be given more weight

by convening authorities than the consideration of whether admissible evidence will likely be sufficient

to obtain and sustain a conviction in a trial by court-martial. The Article 33 (non-binding) Disposition

Guidance may not give appropriate weight to the sufficiency-of-the-evidence factor.

• Observation 3: While judge advocates often provided investigators advice on probable cause for submission

of fingerprints and DNA to federal databases, it is unclear what, if any, advice on appropriate disposition

factors, including advice on probable cause, judge advocates provided to the initial disposition authority.

• Observation 4: The initial disposition authority often did not identify which factors were considered

significant in the disposition decision and currently is not required to do so.

Preliminary Hearing Determination of Probable Cause 

• Observation 5: Detailed Article 32 preliminary hearing reports containing a summary of the facts

supporting the elements and the preliminary hearing officer’s analysis and conclusions are useful both to

special victims’ counsel or victims’ legal counsel and to defense counsel in advising their clients, as well as

to staff judge advocates and convening authorities in rendering advice and making decisions on the charges,

probable cause, jurisdiction, and dispositions.

• Observation 6: On the basis of its reviews of investigative files and Article 32 preliminary hearing reports,

the Case Review Working Group noted that sufficient evidence for a probable cause determination is not

always presented at the Article 32 hearing. The Article 32 preliminary hearing officer should be presented

with sufficient evidence to support a probable cause determination at that hearing, where it is subject to

challenge by the defense.

• Observation 7: The lack of a binding probable cause determination by the preliminary hearing officer,

which allows the staff judge advocate—without explanation—to come to a different conclusion on probable

cause, reduces the usefulness of the Article 32 hearing.
7

SUMMARY OF FINDINGS, OBSERVATIONS, AND RECOMMENDATIONS

Staff Judge Advocate Pretrial Advice 

• Observation 8: Many sexual assault cases are being referred to courts-martial when there is insufficient 

evidence to support and sustain a conviction.

a. Article 32 preliminary hearing officers do not consistently include in their reports an evaluation of 

whether there is sufficient admissible evidence to support a conviction. Such an evaluation would be 

helpful to subordinate commanders, convening authorities, and staff judge advocates (SJAs). 

b. SJAs rarely provide an evaluation of the sufficiency of the evidence to support a conviction in the 

Article 34 pretrial advice, and they are not required to do so. Including such an analysis as well as the 

SJA’s conclusion as to whether there is sufficient admissible evidence to obtain and sustain a conviction 

in a trial by court-martial would be helpful to convening authorities. (See Observation 9.)

c. Article 34 requires SJAs to provide convening authorities a binding determination of probable cause 

as the standard for referring a case to trial. However, probable cause may not be the appropriate 

standard for referring a case to trial. 

d. In many cases, consideration of “the sufficiency of evidence to obtain and sustain a conviction” did 

not seem to be afforded the same deference as in the Justice Manual (formerly the U.S. Attorneys’ 

Manual).

• Observation 9: Currently Article 34, UCMJ, prohibits convening authorities from referring charges to a 

general court-martial unless the staff judge advocate provides written advice that the specification alleges an 

offense, there is probable cause to believe that the accused committed the offense, and jurisdiction exists. In 

addition, the staff judge advocate must provide a written recommendation as to the disposition to be made 

in the interest of justice and discipline. In the files reviewed, the staff judge advocate’s Article 34 pretrial 

advice to the general court-martial convening authority often consisted of conclusions without explanation. 

These unexplained conclusions are not useful in assessing factors relevant to a referral determination. The 

Article 34 pretrial advice could be more helpful to convening authorities if it included detailed explanations 

of the staff judge advocate’s conclusions.

SUMMARY OF DAC-IPAD RECOMMENDATIONS RELATED TO THE DEPARTMENT OF 

DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT**2

DAC-IPAD Recommendation 19: The Department of Defense should publish a memorandum outlining 

sufficiently specific data collection requirements to ensure that the Military Services use uniform methods, 

definitions, and timelines when reporting data on collateral misconduct (or, where appropriate, the Department 

should submit a legislative proposal to Congress to amend section 547 by clarifying certain methods, definitions, 

and timelines). The methodology and definitions should incorporate the following principles:

a. Definition of “sexual offense”: 

• The definition of “sexual offense” for purposes of reporting collateral misconduct should include

** Recommendations 1–18 were included in previous DAC-IPAD reports. The complete list of all of the DAC-IPAD’s previous recommendations is 

available at Appendix E. 
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– Both penetrative and non-penetrative violations of Article 120, UCMJ (either the current or 

a prior version, whichever is applicable at the time of the offense);

– Violations of Article 125, UCMJ, for allegations of sodomy occurring prior to the 2019 

version of the UCMJ; and

– Attempts, conspiracies, and solicitations of all of the above.

• The definition of sexual offense should not include violations of Article 120b, UCMJ (Rape and 

sexual assault of a child); Article 120c, UCMJ (Other sexual misconduct); Article 130, UCMJ 

(Stalking); or previous versions of those statutory provisions.

b. Definition of “collateral misconduct”: 

• Current DoD policy defines “collateral misconduct” as “[v]ictim misconduct that might be in 

time, place, or circumstance associated with the victim’s sexual offense incident.”1

• However, a more specific definition of collateral misconduct is necessary for purposes of the 

section 547 reporting requirement. That recommended definition should read as follows: 

“Any misconduct by the victim that is potentially punishable under the UCMJ, committed 

close in time to or during the sexual offense, and directly related to the incident that formed 

the basis of the sexual offense allegation. The collateral misconduct must have been discovered 

as a direct result of the report of the sexual offense and/or the ensuing investigation into the 

sexual offense.”

• Collateral misconduct includes (but is not limited to) the following situations:

– The victim was in an unprofessional or adulterous relationship with the accused at the time 

of the assault.2

– The victim was drinking underage or using illicit substances at the time of the assault.

– The victim was out past curfew, was at an off-limits establishment, or was violating barracks/

dormitory/berthing policy at the time of the assault.

• To ensure consistency across the Military Services, collateral misconduct, for purposes of this 

report, should not include the following situations (the list is not exhaustive):

– The victim is under investigation or receiving disciplinary action for misconduct and 

subsequently makes a report of a sexual offense.

– The victim used illicit substances at some time after the assault, even if the use may be 

attributed to coping with trauma.

– The victim engaged in misconduct after reporting the sexual offense.

– The victim had previously engaged in an unprofessional or adulterous relationship with the 

subject, but had terminated the relationship prior to the assault.

1 Dep’t of Def. Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures, Glossary (March 28, 2013, Incorporating 

Change 3, May 24, 2017), 117. 

2 For purposes of this report, an “unprofessional relationship” is a relationship between the victim and accused that violated law, regulation, or policy in 

place at the time of the assault.
9

SUMMARY OF FINDINGS, OBSERVATIONS, AND RECOMMENDATIONS

– The victim engaged in misconduct that is not close in time to the sexual offense, even if it 

was reasonably foreseeable that such misconduct would be discovered during the course 

of the investigation (such as the victim engaging in an adulterous relationship with an 

individual other than the subject).

– The victim is suspected of making a false allegation of a sexual offense.

– The victim engaged in misconduct during the reporting or investigation of the sexual 

offense (such as making false official statements during the course of the investigation).

c. Methodology for identifying sexual offense cases and victims:

• To identify sexual offense cases and victims, all closed cases from the relevant time frame that 

list at least one of the above included sexual offenses as a crime that was investigated should be 

collected from the military criminal investigative organizations (MCIOs).

• A case is labeled “closed” after a completed MCIO investigation has been submitted to a 

commander to make an initial disposition decision, any action taken by the commander has 

been completed, and documentation of the outcome has been provided to the MCIO.3

• Each Military Service should identify all of its Service member victims from all closed cases from 

the relevant time frame, even if the case was investigated by another Military Service’s MCIO.

d. Time frame for collection of data:

• The Military Services should report collateral misconduct data for the two most recent fiscal 

years preceding the report due date for which data are available. The data should be provided 

separately for each fiscal year and should include only closed cases as defined above. For 

example, the Department’s report due September 30, 2021, should include data for closed cases 

from fiscal years 2019 and 2020.

e. Definition of “covered individual”:

• Section 547 of the FY19 NDAA defines “covered individual” as “an individual who is identified 

as a victim of a sexual offense in the case files of a military criminal investigative organization.” 

This definition should be clarified as follows: “an individual identified in the case files of an 

MCIO as a victim of a sexual offense while in title 10 status.”

• For the purposes of this study, victims are those identified in cases closed during the applicable 

time frame.

f. Replacement of the term “accused”:

• Section 547 of the FY19 NDAA uses the phrase “accused of collateral misconduct.” To more 

accurately capture the frequency with which collateral misconduct is occurring, the term 

“accused of” should be replaced with the term “suspected of,” defined as follows: instances in 

which the MCIO’s investigation reveals facts and circumstances that would lead a reasonable 

person to believe that the victim committed an offense under the UCMJ.4

3 This definition of “closed case” mirrors the definition used by the DAC-IPAD’s Case Review Working Group. 

4 Cf. United States v. Cohen, 63 M.J. 45, 50 (C.A.A.F. 2006) (stating that determining whether a person is a “suspect” entitled to warnings under Article 

31(b) prior to interrogation “is an objective question that is answered by considering all the facts and circumstances at the time of the interview to 
10

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

• Examples of a victim suspected of collateral misconduct include (but are not limited to) the 

following situations:

– The victim disclosed engaging in conduct that could be a violation of the UCMJ (and was 

collateral to the offense).

– Another witness in the investigation stated that the victim engaged in conduct that could be 

a violation of the UCMJ (and was collateral to the offense).

– The subject of the investigation stated that the victim engaged in conduct that could be a 

violation of the UCMJ (and was collateral to the offense). 

– In the course of the sexual offense investigation, an analysis of the victim’s phone, urine, or 

blood reveals evidence that the victim engaged in conduct that could be a violation of the 

UCMJ (and was collateral to the offense).

• This definition of “suspected of” does not require preferral of charges, a formal investigation, 

or disciplinary action against the victim for the collateral misconduct. However, if any of 

those actions has occurred regarding collateral misconduct, or if there is evidence of collateral 

misconduct from other sources available, such victims should also be categorized as suspected 

of collateral misconduct even if the MCIO case file does not contain the evidence of such 

misconduct.

– For example, if in pretrial interviews the victim disclosed collateral misconduct, such a 

victim would be counted as suspected of collateral misconduct.

g. Definition of “adverse action”: 

• The term “adverse action” applies to an officially documented command action that has been 

initiated against the victim in response to the collateral misconduct.

• Adverse actions required to be documented in collateral misconduct reports are limited to the 

following:

– Letter of reprimand (or Military Service equivalent) or written record of individual 

counseling in official personnel file;

– Imposition of nonjudicial punishment;

– Preferral of charges; or

– Initiation of an involuntary administrative separation proceeding.

• The Committee recommends limiting the definition of adverse action to the above list for 

purposes of this reporting requirement to ensure consistency and accuracy across the Military 

Services in reporting and to avoid excessive infringement on victim privacy. The Committee 

recognizes the existence of other adverse administrative proceedings or actions that could lead 

to loss of special or incentive pay, administrative reduction of grade, loss of security clearance, 

bar to reenlistment, adverse performance evaluation (or Military Service equivalent), or 

reclassification. 

determine whether the military questioner believed or reasonably should have believed that the servicemember committed an offense”) (internal 

citations omitted).
11

SUMMARY OF FINDINGS, OBSERVATIONS, AND RECOMMENDATIONS

h. Methodology for counting “number of instances”:

• Cases in which a victim is suspected of more than one type of collateral misconduct should be 

counted only once; where collateral misconduct is reported by type, it should be counted under 

the most serious type of potential misconduct (determined by UCMJ maximum punishment) 

or, if the victim received adverse action, under the most serious collateral misconduct identified 

in the adverse action.

• For cases in which a victim received more than one type of adverse action identified above, such 

as nonjudicial punishment and administrative separation, reporting should include both types of 

adverse action. 

DAC-IPAD Recommendation 20: Victims suspected of making false allegations of a sexual offense should not be 

counted as suspected of collateral misconduct. 

DAC-IPAD Recommendation 21: For purposes of the third statistical data element required by section 547, the 

Department of Defense should report not only the percentage of all Service member victims who are suspected 

of collateral misconduct but also the percentage of the Service member victims who are suspected of collateral 

misconduct and then receive an adverse action for the misconduct. These two sets of statistics would better inform 

policymakers about the frequency with which collateral misconduct is occurring and the likelihood of a victim’s 

receiving an adverse action for collateral misconduct once they are suspected of such misconduct. 

DAC-IPAD Recommendation 22: The Department of Defense should include in its report data on the number 

of collateral offenses that victims were suspected of by type of offense (using the methodology specified in section 

h of Recommendation 19) and the number and type of adverse actions taken for each of the offenses, if any. 

This additional information would aid policymakers in fully understanding and analyzing the issue of collateral 

misconduct and in preparing training and prevention programs.

DAC-IPAD Recommendation 23: To facilitate production of the future collateral misconduct reports required 

by section 547, the Military Services should employ standardized internal documentation of sexual offense cases 

involving Service member victims suspected of engaging in collateral misconduct as defined for purposes of this 

reporting requirement.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
13

INTRODUCTION

INTRODUCTION

I. COMMITTEE ESTABLISHMENT AND MISSION

The Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces 

(DAC-IPAD or Committee) was established by the Secretary of Defense in February 2016 pursuant to section 546 

of the National Defense Authorization Act for Fiscal Year 2015 (FY15 NDAA), as amended.5

 The statutory mission 

of the DAC-IPAD is to advise the Secretary of Defense on the investigation, prosecution, and defense of allegations 

of rape, forcible sodomy, sexual assault, and other sexual misconduct involving members of the Armed Forces.6 In 

order to provide that advice, the Committee is directed to review, on an ongoing basis, cases involving allegations of 

sexual misconduct.7

The swearing-in of 16 DAC-IPAD members appointed by the Secretary of Defense occurred at the Committee’s 

first meeting on January 19, 2017, in Arlington, Virginia. The DAC-IPAD is required by its authorizing legislation 

to submit an annual report to the Secretary of Defense and to the Committees on Armed Services of the Senate and 

the House of Representatives, no later than March 30 of each year, describing the results of its activities.8

II. COMPOSITION OF THE COMMITTEE

The Committee’s authorizing legislation required the Secretary of Defense to select Committee members with 

experience in investigating, prosecuting, and defending against allegations of sexual offenses.9 In January 2017 

the Secretary of Defense appointed to the DAC-IPAD 16 members, including its Chair, Martha S. Bashford, a 

distinguished 40-year prosecutor and Chief of the Sex Crimes Unit for the New York County District Attorney’s 

Office.10 The members represent a wide range of perspectives and experience related to sexual offenses both within 

and outside the military.11 They have spent decades in their fields of expertise, which include

• Civilian sexual offense investigation and forensics

• Civilian and military sexual offense prosecution

• Civilian and military sexual offense defense 

• Federal and state court systems

5 Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291 [FY15 NDAA], § 546, 

128 Stat. 3292 (2014). In accordance with the authorizing statute and the Federal Advisory Committee Act of 1972 (FACA), the Department of 

Defense (DoD) filed the charter for the DAC-IPAD with the General Services Administration on February 18, 2016. Note that the National Defense 

Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92 [FY20 NDAA], § 535, Enacted S. 1790 (2019), amended FY15 NDAA § 546 to extend 

the term of the Committee from 5 to 10 years.

6 FY15 NDAA, supra note 5, § 546(c)(1).

7 Id. at § 546(c)(2). 

8 Id. at § 546(d).

9 Id. at § 546(b).

10 Keith Harrison, Associate Dean and Professor of Law, Savannah Law School, and a beloved member of the DAC-IPAD, passed away unexpectedly in 

2018. Dean Harrison’s position on the DAC-IPAD has not been filled since his death.

11 See Appendix C for a list and short biographies of the DAC-IPAD members.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

• Military command

• Criminology

• Academic disciplines and legal policy

• Crime victims’ rights

Four members of the Committee retired from the military and two more served previously as judge advocates. Three 

of the members are sitting federal judges. 

III. WORKING GROUPS

In 2017 the DAC-IPAD established three working groups to support its mission: the Case Review Working Group, 

the Data Working Group, and the Policy Working Group. 

The mission of the Case Review Working Group (CRWG) is to make recommendations to the Committee based 

on its review of cases involving allegations of rape, forcible sodomy, sexual assault, and other sexual misconduct. 

The Case Review Working Group is chaired by retired Brigadier General James R. Schwenk, and comprises six 

additional members: Ms. Martha S. Bashford, Ms. Kathleen B. Cannon, Ms. Jennifer Gentile Long, Mr. James P. 

Markey, Dr. Cassia C. Spohn, and Ms. Meghan A. Tokash. 

The mission of the Data Working Group (DWG) is to make recommendations to the Committee based on its 

collection and analysis of case adjudication data from completed cases involving allegations of penetrative (rape, 

forcible sodomy, and sexual assault) and contact (aggravated sexual contact, abusive sexual contact) sex offenses 

for which charges were preferred. The Data Working Group is chaired by Dr. Cassia C. Spohn, and comprises 

two additional members: Mr. James P. Markey and retired Chief Master Sergeant of the Air Force Rodney J. 

McKinley. 

Finally, the mission of the Policy Working Group (PWG) is to make recommendations to the Committee based 

on its review of Department of Defense (DoD) policies, Military Department policies, and Uniform Code of 

Military Justice (UCMJ) provisions applicable to allegations of rape, forcible sodomy, sexual assault, and other 

sexual misconduct. The Policy Working Group was initially chaired by Chief Rodney J. McKinley and comprised 

four additional members: retired Army Major General Marcia M. Anderson, Ms. Margaret A. Garvin, Dr. Jenifer 

Markowitz, and retired Marine Corps Brigadier General James R. Schwenk. In the fall of 2019, Chief McKinley 

and General Anderson stepped down from the working group, while Ms. Kathleen B. Cannon joined and took 

over as chair of the group, and the Honorable Paul W. Grimm, Mr. A. J. Kramer, and Ms. Jennifer G. Long also 

joined the working group.

IV. PREVIOUS COMMITTEE REPORTS

A. Initial Report – March 2017

The DAC-IPAD held its first meeting on January 19, 2017—approximately two months before the Committee’s 

statutory due date for its annual report, March 30. In this first report, the Committee reflected on its initial 

discussions, emphasizing the need for and importance of accurate, relevant data so that members can fully 

understand the issues and make sound policy recommendations to the Secretary of Defense. The members expressed 
15

INTRODUCTION

interest in analyzing key data points such as the impact of rank, race, and sexual orientation on charging decisions, 

conviction rates, and sentencing and agreed to continue the important data collection project developed by its 

predecessor panel, the Judicial Proceedings Since Fiscal Year 2012 Panel (Judicial Proceedings Panel or JPP).12 The 

Committee outlined the development of its strategic plan in its initial report, which was released on March 30, 

2017.13

B. Second Annual Report – March 2018

The Committee held six public meetings in the 12 months preceding the release of its second annual report on 

March 30, 2018. During that time, the Committee received informational briefings on the mechanics of sexual 

offense investigation and prosecution in the military, the sexual offense case adjudication statistics collected and 

reported on by the JPP, and the sexual offense data collected and published annually by DoD’s Sexual Assault 

Prevention and Response Office (SAPRO).14 The Committee studied the topics of expedited transfers and of the 

legal and sexual assault training received by convening authorities.15

In its second annual report, the Committee made 11 findings and 4 recommendations related to the Department’s 

expedited transfer policy.16 The Committee’s overall assessment was that the expedited transfer policy for 

sexual offense victims is an important sexual offense response initiative offered by the military and it strongly 

recommended the continuation and further improvement of the policy. It also recommended expanding the 

expedited transfer policy to include sexual offense victims who are active duty Service members covered by the 

Family Advocacy Program. 

Congress followed and expanded on this recommendation when it enacted a provision in the National Defense 

Authorization Act for Fiscal Year 2019 requiring the Secretary of Defense to extend the expedited transfer policy to 

Service members who are victims of sexual offenses regardless of whether the case is handled by the Sexual Assault 

Prevention and Response Program or the Family Advocacy Program. The law also extends the expedited transfer 

policy to members who are victims of physical domestic violence committed by the spouse or intimate partner of 

the member regardless of whether that spouse or intimate partner is a member of the Armed Forces.17 In addition, 

the law extends the policy to include Service members whose dependent is sexually assaulted by a Service member 

not related to the victim.18

12 Transcript of DAC-IPAD Public Meeting 238 (Jan. 19, 2017) (comment by the Honorable Reggie B. Walton, Committee member); 238 (comment 

by Ms. Kathleen B. Cannon, Committee member); 225–26 (comment by Major General (Ret.) Marcia M. Anderson, Committee member); 230–31 

(comment by Ms. Martha S. Bashford, Committee chair); 231 (comment by Dean Keith M. Harrison, Committee member). All transcripts of the 

DAC-IPAD Public Meetings are available at the DAC-IPAD website: https://dacipad.whs.mil/.

13 Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces Initial Report (March 

2017) [DAC-IPAD Initial Report], available at https://dacipad.whs.mil/images/Public/08-Reports/DACIPAD_Initial_Report_20170330_Final_

Web.pdf.

14 See generally Transcript of DAC-IPAD Public Meeting (Apr. 28, 2017); Transcript of DAC-IPAD Public Meeting (July 21, 2017).

15 See generally Transcript of DAC-IPAD Public Meeting (Oct. 19, 2017); Transcript of DAC-IPAD Public Meeting (Oct. 20, 2017).

16 Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces Annual Report 

(March 2018) [DAC-IPAD Second Annual Report], available at https://dacipad.whs.mil/images/Public/08-Reports/DACIPAD_Report_02_

Final_20180330_Web_Amended.pdf.

17 John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232 [FY19 NDAA], § 536, 132 Stat. 1636 (2018).

18 Id.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

C. Third Annual Report – March 2019

Between April 2018 and February 2019, prior to the release of its third annual report, the Committee held six 

public meetings. During this time, the Committee heard from 21 presenters and three members of the public on 

topics including sexual offense data collection and management, sexual offense investigation practices, and the 

effects of sexual offense investigations on accused Service members and victims. In addition, the Committee’s three 

working groups held 13 preparatory sessions during which members heard testimony from more than 50 presenters, 

including military prosecutors, defense counsel, investigators, victims’ counsel, program managers, victim services 

personnel, and an assistant United States Attorney on topics including sexual offense investigation practices, the 

DoD expedited transfer policy, and sexual offense prosecution standards in civilian and military jurisdictions. 

In its third annual report, the Committee made 33 findings and 13 recommendations in the areas of commanders’ 

disposition decisions with respect to penetrative sexual offense complaints, documentation of command disposition 

decisions, unfounded determinations, subject fingerprint collection and submission to federal criminal databases, 

Article 140a of the UCMJ regarding military justice data collection and management,19 and the DoD expedited 

transfer policy.20 In addition, the report discussed the outcome of the Committee members’ review of a random 

sample of 164 of the 2,055 penetrative sexual offense investigative case files closed in FY17 involving Service 

member subjects and adult victims. The members of the CRWG recorded descriptive data from each case and 

assessed the reasonableness of the command disposition decisions based on the evidence available in the files and the 

members’ professional experience. 

D. Court-Martial Adjudication Data Report – November 2019

In November 2019 the Committee released a stand-alone court-martial data report, which described its annual 

collection and analysis of military case adjudication statistical data for adult-victim sexual offense cases in which 

charges were preferred for penetrative or contact sexual offense offenses and in which final action on the case is 

complete.21 The Committee collected and recorded data from case documents, including charge sheets, Article 32 

preliminary hearing officer’s reports, and Results of Trial forms, in a total of 574 cases completed in fiscal year 2018, 

691 cases completed in fiscal year 2017, 769 cases completed in fiscal year 2016, and 780 cases completed in fiscal 

year 2015. The report and a detailed appendix provided case characteristics, disposition outcomes, and adjudication 

outcomes for these cases, including sex, Military Service branch, and pay grade of the subject; relationship of the 

victim to the subject; nature of the charges; forum; and case outcome. The report also included a multivariate 

statistical analysis prepared by a professional criminologist that identified patterns in the data. The Committee made 

no findings or recommendations in the report; its intent was to provide policymakers with the most up-to-date, 

19 The DAC-IPAD’s analysis and recommendations regarding implementation of Article 140a of the Uniform Code of Military Justice were initially 

submitted to the Secretary of Defense in a letter from the DAC-IPAD Chair, Ms. Martha S. Bashford. See Letter from DAC-IPAD Chair Martha 

S. Bashford to the Secretary of Defense Regarding Article 140a, Uniform Code of Military Justice (Sept. 13, 2018) [2018 DAC-IPAD Letter to 

Secretary of Defense Regarding Article 140a], available at https://dacipad.whs.mil/images/Public/08-Reports/03_DACIPAD_InterimReport_

Article140a_20180913_Final.pdf.

20 Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces Third Annual Report 

(March 2019) [DAC-IPAD Third Annual Report], available at https://dacipad.whs.mil/images/Public/08-Reports/DACIPAD_Report_03_

Final_20190326_Web.pdf.

21 Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces Court-Martial 

Adjudication Data Report (Nov. 2019) [DAC-IPAD 2019 Data Report], available at https://dacipad.whs.mil/images/Public/08-Reports/05_

DACIPAD_Data_Report_20191125_Final_Web.pdf.
17

INTRODUCTION

accurate, and reliable information available on the outcomes of adult sexual offense allegations in which charges 

were preferred against a military subject under the UCMJ.

V. FOURTH ANNUAL REPORT – MARCH 2020

This fourth annual report of the DAC-IPAD describes the Committee’s activities and the topics examined over 

the previous 12 months. The Committee held five public meetings between March 2019 and February 2020 

during which it heard from over 20 presenters and one member of the public on topics including sexual offense 

victim collateral misconduct, the conviction and acquittal rates for sexual offenses in the military, the military case 

adjudication process, and victim declination to participate in the military justice process.22 The Committee makes 

three findings and five recommendations in this report related to its investigative case file reviews of penetrative 

sexual offense allegations and its analysis of the Department of Defense’s initial report on victim collateral 

misconduct. 

The first chapter of this report focuses on the Committee’s initial findings and observations based on the CRWG’s 

review of over 2,000 penetrative sexual offense investigative case files closed in FY17 involving Service member 

subjects and adult victims. The chapter also discusses the Committee’s plan to issue a stand-alone report in 2020 

containing a complete set of data developed during this review and both bivariate and multivariate analyses of that 

data by the DAC-IPAD’s professional criminologist.

Chapter 2 discusses the PWG’s work to date and its way ahead on issues relating to Article 32 preliminary 

hearings, Article 33 disposition guidance for judge advocates and commanders, and Article 34 staff judge advocate 

pretrial advice for convening authorities. These issues were recommended to the Committee for review both by its 

predecessor, the Judicial Proceedings Panel, and by the Department of Defense General Counsel. The Committee 

Chair referred the issues to the PWG for review.

Chapter 3 discusses highlights from the Committee’s November 2019 case adjudication data report, and provides an 

update on the case adjudication database project. 

Chapter 4 provides the Committee’s analysis and recommendations regarding the Department of Defense’s collateral 

misconduct study, as required by section 547 of the FY19 NDAA, which directs the Secretary of Defense to work 

with the DAC-IPAD in submitting to the congressional defense committees a biennial report on the number of 

instances of collateral misconduct committed by alleged sexual offense victims. The Committee’s recommendations 

were initially submitted to the Secretary of Defense in a letter dated September 16, 2019.23

Finally, Chapter 5 provides an overview of the DAC-IPAD’s site visit plan and the DAC-IPAD members’ plan to 

attend and observe sexual offense courts-martial.

22 See Appendix I for a complete listing of DAC-IPAD meetings, preparatory sessions, and presenters. 

23 Letter from Ms. Martha S. Bashford, Chair, DAC-IPAD, to the Secretary of Defense Regarding Collateral Misconduct Study (Sept. 16, 2019), available 

at https://dacipad.whs.mil/images/Public/08-Reports/DACIPAD_Letter_DoD_Victim_Collateral_Misconduct_20190916.pdf; see also Appendix G.
18

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
19

CHAPTER 1. FINDINGS AND OBSERVATIONS BASED ON THE REVIEW OF 

MCIO PENETRATIVE SEXUAL OFFENSE INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

CHAPTER 1. FINDINGS AND OBSERVATIONS BASED ON 

THE REVIEW OF MCIO PENETRATIVE SEXUAL OFFENSE 

INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017 

I.INTRODUCTION

In the Committee’s authorizing legislation, Congress directed the DAC-IPAD to review, on an ongoing basis, 

cases involving allegations of sexual misconduct, including allegations of rape, forcible sodomy, and sexual assault, 

involving members of the Armed Forces, in order to advise the Secretary of Defense regarding the handling of 

such cases in the military justice system.24 To comply with this mandate, in 2017 the DAC-IPAD formed a Case 

Review Working Group (CRWG) composed of seven Committee members, and tasked it to review individual cases 

involving sexual offenses.25

As described in the DAC-IPAD’s March 2019 Third Annual Report, in the absence of statutory or other guidance 

upon which to rely for its case reviews, the Committee chose to focus its attention on the investigative stage—the 

period from the initial report of an alleged sexual offense to military law enforcement officials through the initial 

disposition decision. The initial disposition decision may be to prefer charges for the offense, thereby initiating 

a criminal justice proceeding, or not to prefer charges and instead take some type of administrative action, or to 

take no action at all.26 Further, in order to focus on the most serious offenses, the Committee limited its review 

to penetrative sexual offenses only.27 The Committee then requested and received from the military criminal 

investigative organizations (MCIOs) of each of the Military Services, including the Coast Guard, all investigative 

case files closed in fiscal year 2017 that involved an allegation by an adult victim of a penetrative sexual offense 

against a Service member.28

In its March 2019 Third Annual Report, the DAC-IPAD set forth the objectives, methodology, and process on 

which the Case Review Working Group would rely to complete its review of the more than 2,000 penetrative sexual 

offense investigative case files closed in fiscal year 2017.29 The Committee identified the following objectives for its 

groundbreaking case review project:

• Assess the reasonableness of case disposition decisions in the military;

• Compile descriptive case data regarding the facts of the cases reviewed;

24 FY15 NDAA, supra note 5, § 546(c)(2) (subsequent amendments not included).

25 DAC-IPAD Second Annual Report, supra note 16, at 15. 

26 DAC-IPAD Third Annual Report, supra note 20, at 21. 

27 Id. For purposes of the case review project, “penetrative sexual offense” is defined as rape and sexual assault, in violation of Article 120, UCMJ; forcible 

sodomy, in violation of Article 125, UCMJ; and any attempt to commit such offenses, in violation of Article 80, UCMJ; see also DAC-IPAD Second 

Annual Report, supra note 16, at 16–17.

28 DAC-IPAD Third Annual Report, supra note 20, at 21–22.

29 Id. at 22–26, 29. “During their examination of the available documents from case files and the DAC-IPAD’s sexual assault case adjudication database, 

reviewers recorded relevant factual and evidentiary details, including their independent assessment of any comments regarding the investigation of 

the case and its disposition. To guide the reviews, the Committee developed a 21-page standardized data collection form with 231 data elements that 

reviewers filled in by hand with data and comments for each case reviewed.” Id. at 26; see also id. at Appendix F, Investigative Case Review Data Form, for 

the complete list of items documented for every MCIO case file reviewed by the Committee and staff. 
20

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

• Examine investigative files for issues involving the discretion afforded to military investigators and the

duration of investigations;

• Review practices for documenting a commander’s disposition decision in penetrative sexual offense cases in

which a Service member is the subject under investigation;

• Review MCIO practices for submitting fingerprints and case disposition information to federal databases

and for documenting cases as unfounded—that is, false or baseless; and

• Examine predictive factors for case outcomes.30

The Committee issued its initial assessments, findings, and recommendations in the March 2019 Third Annual 

Report. The report is based on the CRWG members’ review of 164 penetrative sexual offense investigations 

randomly selected from the total of 2,055 penetrative sexual offense investigations closed in fiscal year 2017, as 

well as the testimony of civilian and military investigators, military prosecutors, military defense counsel, and 

numerous other subject matter experts. The Committee made 31 findings and 13 recommendations related to the 

reasonableness of commanders’ disposition decisions, disposition decisions in cases involving penetrative sexual 

offense complaints, victim participation in the military justice process, investigator discretion, documentation 

of command disposition decisions, determinations of cases as unfounded, and subject fingerprint collection and 

submission to federal criminal databases.

The majority of penetrative sexual offenses for which the MCIOs closed investigations in fiscal year 2017 did not 

lead to charges being preferred against the subject.31 As a result, the CRWG members sought to evaluate whether 

commanders and convening authorities were making appropriate decisions in the cases with respect to initiating or 

declining prosecution for the penetrative sexual offense. 

After considerable discussion about how to evaluate such a subjective question, the CRWG members determined 

that each reviewer would draw on their individual expertise to determine whether, based on the evidence provided 

in the investigative case files and other available pretrial documents, the disposition decisions made by the 

commanders and convening authorities in each case were “reasonable.” To place a check on potential variances 

across reviewers, the CRWG assigned at least two reviewers to evaluate each case—three if the first two reviewers 

reached opposite conclusions in their assessments. 

The CRWG found the commander’s initial disposition decision to be reasonable in 155 of 164 cases (95%).32 In 42 

of the 164 cases (26%), the command preferred charges for a penetrative sexual offense; in the remaining 122 cases 

(74%), the command did not prefer charges against the subject for the penetrative sexual offense.33

30 Id. at 22.

31 Id. at 24.

32 Id. at 31.

33 Id. at 30. Specifically, the Committee found the command’s decision to prefer charges reasonable in 40 of 42 cases (95%) and it found the command’s 

decision not to prefer charges reasonable in 115 of 122 cases (94%). Id.
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MCIO PENETRATIVE SEXUAL OFFENSE INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

II.CURRENT STATUS OF CASE REVIEW PROJECT

In the 12 months following publication of the March 2019 Third Annual Report, CRWG members and staff 

continued to review investigative case files. As a result, the CRWG reported to the Committee that after two years 

of continuous effort, the CRWG had completed its review of all 2,055 penetrative sexual offense investigative case 

files closed in fiscal year 2017. As of February 14, 2020, CRWG members had reviewed a total of 322 of the cases, 

including those in the initial random sample; CRWG staff attorneys reviewed all 2,055 cases.

After the case reviews were completed, the data entry and quality assurance process for the more than 200 data 

elements recorded for each case continued. At the time of publication of this report, the CRWG staff had finished 

entering the data from all of the cases reviewed. The CRWG intends to present its comprehensive statistical data 

report for the case review project, including the staff criminologist’s bivariate and multivariate analysis, to the full 

Committee when complete. The Committee will deliberate upon the CRWG’s data and analysis and publish a 

stand-alone case review data report. The report will 

• Provide descriptive data by Military Service collected from penetrative sexual offense investigations closed in

fiscal year 2017;

• Provide statistical analyses of case factors that may be predictive of whether charges are preferred or no

action is taken on a penetrative sexual offense investigation;

• Provide statistical analyses of case factors for preferred charges that result in a finding of not guilty of the

penetrative sexual offense charge; and

• Provide additional subjective determinations, based on the Committee members’ expertise, on command

and convening authority decisions.34

The Committee notes that data alone do not capture all of the valuable information gleaned from the CRWG’s 

completion of its in-depth review of the investigative case files. Members of the CRWG, which is composed of 

civilian, military, federal, and state prosecutors, defense attorneys, investigators, and criminologists, presented to the 

DAC-IPAD their overall impressions of their review of military investigative case files and related case documents 

from the perspective of their areas of expertise. 

After deliberating on the CRWG’s work, the DAC-IPAD made three findings and nine observations related to the 

investigative case review project. The DAC-IPAD’s findings are factual determinations that the Committee directed 

the CRWG to continue to assess in order to assist the Committee in formulating recommendations to address 

the issues raised by the findings. The DAC-IPAD’s observations describe issues routinely reflected in the case files 

that the Committee directed the Policy Working Group to further examine in order to assist the Committee in 

developing findings and recommendations, as appropriate, to address the topics identified by the observations. Both 

the findings and observations will assist the Committee in its preparation for upcoming military installation site 

visits, and merit further study. 

34 Transcript of DAC-IPAD Public Meeting 37–38 (Nov. 15, 2019) (comments of Brigadier General (Ret.) James R. Schwenk, U.S. Marine Corps, 

Committee member). 
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

III.FINDINGS BASED ON THE REVIEW OF MCIO PENETRATIVE SEXUAL OFFENSE

INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

A.Victim Interviews by MCIO Investigators

1. Background

The investigative case files reviewed by the CRWG members each contained a complete Report of Investigation 

(ROI), which included, in those cases in which a victim agreed to an MCIO interview, an investigator’s summary of 

the victim’s statement. Some files contained copies of sworn written statements that the victim prepared or signed in 

addition to the investigator’s summary, and most ROIs documented that investigators made digital recordings of both 

the victim’s interview and the subject’s interrogation. However, in the majority of cases the MCIOs did not provide 

either a copy of the digital recordings or transcripts of the victim’s interview or subject’s interrogation for CRWG 

review. In recognition of time limitations in reviewing more than 2,000 cases, the CRWG elected, as a general matter, 

not to additionally request or review the recordings. Instead, the CRWG decided to rely on the investigators’ including 

all key information about the cases in their summaries of the victims’ statements and subjects’ interrogations. 

As part of their review of the investigative files and determination of the reasonableness of the command’s disposition 

decision with respect to the allegation of a penetrative sexual offense, reviewers determined in each case whether the 

victim’s statements to law enforcement, on their own, established probable cause to believe that the subject committed 

a penetrative sexual offense. In about half of the cases reviewed by members that resulted in no action against the 

subject for the penetrative sexual offense, the reviewer determined that the victim’s statements to law enforcement 

authorities were insufficient to establish probable cause to believe that the subject committed the offense. 

2. Discussion

In the cases they reviewed, CRWG members often found that investigators’ summaries of the victims’ statements 

were very general and lacked sufficient details about the offense.35 Further, investigators frequently did not elicit 

sufficient details about the incident from the victim to adequately describe the context of the victim’s actions and 

statements to the subject and to other witnesses.36 These accounts—in contrast to civilian police reports, which 

often include detailed summaries of the victim’s factual statements to aid in assessing the prosecutorial merit of 

the complaint—frequently gave reviewers an incomplete picture of the alleged penetrative sexual offense and the 

circumstances surrounding it.37

In the absence of sufficient details obtained by investigators about the penetrative sexual offense allegation in the 

victim’s statement, reviewers found it difficult to determine whether there was probable cause to believe that a 

crime occurred and to evaluate the prosecutorial merit of a case, including whether there was sufficient evidence 

to prefer charges.38 The lack of detail included in investigators’ summaries of victims’ statements also impaired the 

35 See CRWG Proposed Findings, Observations, and Recommendations 1 [CRWG Proposals] attached at end of Meeting and Reference Materials, Public 

Meeting, November 15, 2019, available at https://dacipad.whs.mil/images/Public/10-Reading_Room/02_DACIPAD_Mtg_Materials/DACIPAD_

Meeting_Materials_20191115_Final.pdf.

36 Id.

37 Id.

38 Id.; see also Transcript of DAC-IPAD Public Meeting 42–43 (Nov. 15, 2019) (comment of Mr. James P. Markey, Committee member).
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CHAPTER 1. FINDINGS AND OBSERVATIONS BASED ON THE REVIEW OF 

MCIO PENETRATIVE SEXUAL OFFENSE INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

reviewers’ ability to determine whether it was necessary to take additional investigative steps or to conduct follow-up 

interviews of the victim.39

For example, despite the evolving nature of investigations, reviewers did not see any indication of follow-up 

interviews with the victim in most cases—even those in which the subject, a witness, or other evidence contradicted 

essential facts in the victim’s statement.40 In the occasional case in which the MCIO did seek to follow up on the 

initial victim interview, the victim had usually obtained counsel by the time of the subsequent interview.41 While 

some victims’ counsel agreed to the follow-up interview, other counsel requested that the MCIO send written 

questions for the victim to answer, which from a law enforcement perspective is often a less-than-ideal method for 

developing information.42

Investigative shortcomings in documenting victim statements and in obtaining details of the incident from the 

victim’s interview could hinder the initial disposition authority’s ability to make well-informed decisions as to 

what action, if any, to take on an allegation of a penetrative sexual offense.43 Follow-up interviews that provide an 

opportunity for victims to respond to some of the information developed after the initial interview could resolve 

questions about conflicts in the evidence. 

Digital recordings of the victim’s interview, which were not reviewed by the CRWG, may constitute an important 

source of information for decision-making authorities. It is unclear, however, whether decision makers routinely 

have access to the recordings. It is also unclear whether the recordings contain information not documented in the 

investigators’ summaries that would be material to a more informed initial disposition decision.

The CRWG’s review of investigative files did not include an assessment of MCIO training, experience, or policy 

directives applicable to sexual offense investigations,44 although the Committee is aware that previous sexual offense 

advisory committees have examined how the MCIOs conduct investigations of sexual offenses.45 Most recently, the 

Judicial Proceedings Panel (JPP) specifically recommended that “[t]he Secretary of Defense identify and remove 

barriers to thorough questioning of a sexual offense victim by the MCIOs or other law enforcement agencies.”46

39 See generally CRWG Proposals, supra note 35 at 1; see also Transcript of DAC-IPAD Public Meeting 43–44 (Nov. 15, 2019) (comment of Mr. Markey).

40 See Transcript of DAC-IPAD Public Meeting 42–43 (Nov. 15, 2019) (comment of Mr. Markey).

41 Id. at 44–45 (comment of Ms. Martha S. Bashford, Committee chair).

42 Id. at 45; see also Transcript of DAC-IPAD Public Meeting (Feb. 14, 2020) (Committee deliberations).

43 See Transcript of DAC-IPAD Public Meeting 42–43 (Nov. 15, 2019) (comment of Mr. Markey).

44 Id. at 46.

45 See Report of the Response Systems to Adult Sexual Assault Crimes Panel 117–25, 153–55, 165 (June 2014) [RSP Report], available at

https://responsesystemspanel.whs.mil/Public/docs/Reports/00_Final/RSP_Report_Final_20140627.pdf; see also Judicial Proceedings Panel Report 

on Sexual Assault Investigations in the Military (Sept. 2017) [JPP Report on Sexual Assault Investigations in the Military], available at 

https://jpp.whs.mil/Public/docs/08-Panel_Reports/08_JPP_Report_Investigations_Final_20170907.pdf.

46 JPP Report on Sexual Assault Investigations in the Military, supra note 45, at 6. The JPP Report listed the following considerations in support 

of its recommendation:

• Current MCIO policies and practices discourage or prohibit investigators from asking any question that could be perceived as “confrontational”

during either the initial or the follow-up interview of a sexual assault victim, even when, in their professional judgment, such questions are vital to

address conflicting statements given by the victim or other evidence contradicting the victim’s account.

• MCIO policies and/or practices require a supervisor’s approval before an investigator can conduct a subsequent interview of a sexual assault victim,

which is perceived by investigators as a barrier to questioning a victim after the initial interview.

• Some SVCs/VLCs who attend investigative interviews limit the scope of questioning, and sometimes object to investigators’ request for any followup interviews of the victim.
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AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

Finding 44: Statements of sexual assault victims taken by military criminal investigators often lacked 

sufficient detail and appropriate follow-up questioning by the investigator. The lack of detail and follow-up 

questioning in these statements made it difficult to properly assess an appropriate disposition for the case.

Assessment: The Case Review Working Group will continue to explore this issue by reviewing and assessing 

additional information, including that obtained through site visits.

B. Investigator Discretion and Case Closure Procedures 

1. Background

In its March 2019 Third Annual Report, the DAC-IPAD examined the degree of discretion that criminal 

investigators exercise over individual investigations into allegations of penetrative sexual offenses. The DAC-IPAD 

based its examination on testimony received from military and civilian investigators and its initial assessment of 164 

penetrative sexual offense investigation case files reviewed to that point.47 At that time, the Committee expressed 

concerns about investigators’ lack of discretion in investigations of sexual offenses. Investigators testified that they 

feel obligated to perform the same series of tasks regardless of the facts of a particular case and that they have little 

discretion to determine which specific investigative actions would provide the most value.48

2. Discussion

After publication of the Committee’s March 2019 Third Annual Report describing its review of the initial 

random sample of 164 penetrative sexual offense investigative files, CRWG members examined an additional 158 

investigative files. This further review affirmed the Committee’s previous concern regarding lack of investigator 

discretion with respect to these allegations. Most case files revealed that investigators did not have discretion to 

pursue investigative steps that they deemed appropriate based on the facts of a particular allegation. Investigators 

need the ability to tailor the scope of an investigation to the facts of that case, including the ability to close 

investigations in a timely and appropriate fashion.49

Investigators are taking specific investigative steps not because they believe that the actions are warranted by the 

facts; instead, they are following a standard checklist and feel that they are required to do so. In contrast, while 

civilian system investigators also use checklists as a guide, they pursue only the actions relevant in the specific case.50

• As a result of the barriers to thorough questioning by MCIOs, investigators lose rapport-building opportunities, as well as important details about

the reported offense, since details about an incident are commonly gathered over time after a traumatic event such as sexual assault.

Id.

47 DAC-IPAD Third Annual Report, supra note 20, at 41–42. 

48 Id. at 42 (Finding 13).

49 See CRWG Proposals, supra note 35, at 2–3. 

50 See Transcript of DAC-IPAD Public Meeting 55–56 (Nov. 15, 2019) (comment of Ms. Bashford) (“We did not ever have the impression that the 

investigators thought . . . taking pictures of a . . . house sometimes seven, eight, nine years later was very terribly [valuable]. And we saw many cases 

where the current occupants wouldn’t let them in. And so, there’s pictures of the front door of the house and the outside of the house.”); see also id. at 

54–55 (member deliberations).
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CHAPTER 1. FINDINGS AND OBSERVATIONS BASED ON THE REVIEW OF 

MCIO PENETRATIVE SEXUAL OFFENSE INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

Lack of discretion results in wasted time and resources.51 For example, one reviewer described a particular case 

in which a period of years elapsed between the alleged incident and the victim’s report to law enforcement. The 

reviewer explained that nearly half of one investigative file consisted of very detailed photos of the crime scene, 

which was, by then, three and a half years old, with new residents living in the facility.52 While there may be 

situations in which photographs taken following a lengthy delay between the incident and reporting to law 

enforcement are useful, investigator discretion is necessary in order to determine under what circumstances such 

steps will meaningfully contribute to the investigation.

The investigative case files reviewed also revealed that investigators routinely conducted “canvass” interviews, which 

involved attempting to interview neighbors and co-workers of the victim and the subject to determine whether they 

have any information relevant to the investigation. The Committee found this practice as conducted by the MCIOs 

to be problematic because, in addition to being very time-consuming, it typically did not advance the investigation 

or lead to admissible evidence. Instead, the practice unnecessarily broadcasts the pending sexual offense investigation 

to other Service members, friends, and colleagues.53 Moreover, the canvass interviews documented in these 

investigative files often went well beyond the reasonable range of questioning witnesses and extended to questioning 

the victim and subject’s co-workers and neighbors about whether they were “nice” and “well-behaved.”54

The Committee is particularly concerned when a third party reports a suspected penetrative sexual offense that the 

alleged victim explains to the MCIO investigator was a consensual act or is an allegation that they feel strongly the 

MCIO should not pursue. Because the MCIO received a report of the incident, the investigator currently has no 

option other than to open and complete a full investigation, which may last many months, even contrary to the 

victim’s preference or to the needs of the investigation.

Finding 45: Investigators need discretion to tailor an investigation to the specific facts of the complaint, 

and there needs to be a mechanism early in the investigation for assessing whether it is appropriate for a 

complaint to be closed. 

a. Investigation and resolution of sexual assault complaints frequently take longer than the facts necessitate.

b. All complaints receive the same level of investigation, and thus the investigation is not tailored to the 

allegation.

c. In some cases, investigations continue irrespective of the victim’s preference, even when the victim 

asserts there was no sexual assault, or when the elements of a sexual assault were not established. 

d. The Case Review Working Group review of investigative case files leads the Committee to conclude 

that this practice of untailored investigations is not an effective use of time and resources; it confirms 

the Committee’s previous finding from March 2019, which was based on testimony from military 

investigators. 

51 See generally CRWG Proposals, supra note 35, at 2–3; see also Transcript of DAC-IPAD Public Meeting 50–51 (Nov. 15, 2019) (comments of Ms. Meghan 

A. Tokash, Committee member). 

52 Transcript of DAC-IPAD Public Meeting 50 (Nov. 15, 2019) (comment of Ms. Tokash).

53 Id. at 53 (comment of Ms. Bashford).

54 Id. at 56 (comment of Mr. Markey).
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

Assessment: The Case Review Working Group will continue to explore this issue by reviewing and assessing 

additional information.

C. Command Adverse Administrative Actions Against Subjects of Penetrative Sexual Offense 

Allegations 

1. Background

Adverse administrative actions or legal holds are placed on the subject of a penetrative sexual offense investigation 

in most cases as soon as an allegation is made. While the timing and extent of the administrative actions vary 

somewhat among the Military Services, the actions can include a prohibition on reassignments, deployments, 

promotions, awards, educational opportunities, and separation from service; placement in a “do-not-arm” status, 

removal from primary jobs, and temporary placement into miscellaneous or menial jobs that often lack professional 

or leadership responsibility; and suspension of security clearances. Once imposed, these actions often last until final 

disposition of the penetrative sexual offense allegation, which can take a significant amount of time.55 These actions 

may occur before any assessment or investigation of the complaint begins. 

Ms. Kathleen Coyne, a Marine Corps Highly Qualified Expert (HQE) who provides training, advice, and 

consultation for Marine Corps defense counsel, expressed to the Committee her deep concern about the routine 

imposition of immediate adverse administrative actions.56 Ms. Coyne emphasized that in the military, a sex crime 

accusation alone causes irreparable harm to a Service member.57 She explained that at a minimum, Service member 

subjects are put on a legal hold for months—frequently for more than six months.58

The Committee also heard from three retired officers who were accused of a sexual offense while in service.59

These individuals each reported that from the time of the allegation forward they were subjected to adverse 

administrative actions, which had profound impacts on their prospects for promotion, their daily duties, and, 

ultimately, their ability to continue serving, even when no charges resulted.60 One Service member recounted 

that despite a determination that there was no probable cause to believe he had committed a sexual offense, he 

faced insurmountable obstacles to continuing his service, and ultimately decided to retire.61 On the same day 

he submitted his retirement request, the Service member told the Committee, he successfully brought suit for 

defamation against his accuser. The jury ultimately awarded him $8.4 million in damages, “an extraordinary amount 

for a defamation case between two private citizens. The jury ordered [the woman who made the allegation] to 

55 See Transcript of CRWG Preparatory Session 9 119–280 (March 6, 2018), on file at the DAC-IPAD offices.

56 See Transcript of DAC-IPAD Public Meeting 10–13 (Oct. 19, 2018) (testimony of Ms. Kathleen Coyne, U.S. Marine Corps Defense Highly Qualified 

Expert).

57 Id. at 10; see also RSP Report, supra note 45, at 8 (“An allegation of sexual assault against a Service member has profound impacts even absent a 

prosecution and conviction.”)

58 Transcript of DAC-IPAD Public Meeting 10 (Oct. 19, 2018) (testimony of Ms. Coyne).

59 Transcript of DAC-IPAD Public Meeting 7–125 (Jan. 25, 2019).

60 See, e.g., id. at 13–17 (testimony of Lieutenant Colonel (Ret.) Joseph “Jay” Morse, U.S. Army).

61 Id. at 43–48 (testimony of Colonel (Ret.) David “Wil” Riggins, U.S. Army).
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CHAPTER 1. FINDINGS AND OBSERVATIONS BASED ON THE REVIEW OF 

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pay $3.4 million in compensatory damages for injury to his reputation and lost wages, and $5 million in punitive 

damages ‘to make sure nothing like this will ever happen again.’”62

2. Discussion 

The Committee determined, as a result of its review of investigative files, that many allegations of penetrative sexual 

offenses against Service members reasonably result in the initial disposition authority taking no action against 

the subject of the investigation for the penetrative offense. However, the reviewers confirmed that upon receipt 

of an allegation of penetrative sexual offense—prior to any analysis of its merit or any investigative activity—the 

command quickly took adverse administrative actions against the subject.63 Because adverse administrative actions 

often have such long-term and negative impacts on a subject, the Committee is concerned that imposing them at 

the time an allegation is made is premature.64

The military’s practice of subjecting service members to early adverse actions stands in marked contrast to what is 

customary in state and federal jurisdictions. If an investigation is ongoing but there is not yet a formal complaint or 

no legal process has yet begun, a person’s life is not derailed.65 Many times, nothing happens in the civilian system 

before a suspect’s arrest, based on probable cause to believe that they committed an offense. Often, if no charges are 

brought a person may have no idea they were even investigated.66 In fact, in order to obtain DNA and fingerprints 

prior to arrest in the civilian world, judicial approval is necessary.67

Even after a commander decides to take no action against a subject for an allegation of a penetrative sexual offense, 

Service members continue to experience negative consequences, because often they have lost the opportunity for 

promotion.68 This lost opportunity translates to a loss of earnings and eventual retirement pay, and that prospect 

can affect the ability of the military to retain the Service member.69 The Military Services invest millions of dollars 

in recruiting and training Service members, yet the adverse administrative actions taken during the investigative 

process in cases in which ultimately no charges are preferred, or no action is taken, often result in the departure of 

valuable Service members.70

Finding 46: Immediately following an allegation of sexual assault, the subject’s command routinely imposes 

some form of administrative action, including, but not limited to, suspension of security clearances and 

administrative holds prohibiting favorable personnel actions such as promotions, educational opportunities, 

moves, and awards. These actions have a negative personal and professional impact on the subject.

62 Tom Jackman, Jury Orders Blogger to Pay $8.4 Million to Ex-Army Colonel She Accused of Rape, Wash. Post, Aug. 11, 2017, available at https://www.

washingtonpost.com/news/true-crime/wp/2017/08/11/jury-orders-blogger-to-pay-8-4-million-to-ex-army-colonel-she-accused-of-rape/; see also 

Transcript of DAC-IPAD Public Meeting 47–48 (Jan. 25, 2019) (testimony of Colonel (Ret.) Wiggins).

63 See Transcript of DAC-IPAD Public Meeting 57–58 (Nov. 15, 2019) (comment of Ms. Cannon).

64 See generally CRWG Proposals, supra note 35, at 5–6.

65 See Transcript of DAC-IPAD Public Meeting 58 (Nov. 15, 2019) (comment of Ms. Cannon).

66 Id. at 60 (comment of Ms. Bashford). 

67 See id.

68 Id. at 59, 61 (comments of Ms. Cannon and Ms. Bashford). 

69 Id. at 59 (comment of Ms. Cannon).

70 Id. at 61–62 (comment of Chief Master Sergeant of the Air Force (Ret.) Rodney J. McKinley, Committee member).
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

Assessment: The Case Review Working Group will continue to explore this issue by reviewing and assessing 

additional information, including that obtained through site visits. 

IV. OBSERVATIONS BASED ON THE REVIEW OF MCIO PENETRATIVE SEXUAL OFFENSE 

INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

A.Article 30, UCMJ, and the Convening Authority’s Disposition of Charges and Specifications 

“in the Interest of Justice and Discipline”

1. Background

Article 30(c), Uniform Code of Military Justice, contains the basic statutory requirement “for the disposition of 

charges and specifications by military commanders and convening authorities exercising various levels of disciplinary 

authority over those subject to the Code.”71 It directs that when charges are preferred against an accused, “the proper 

authority shall, as soon as practicable—(1) inform the person accused of the charges and specifications; and (2) 

determine what disposition should be made of charges and specifications in the interest of justice and discipline.”72

The historical development of the phrase “in the interest of justice and discipline” dates to the 1920 Articles of War, 

which, the Military Justice Review Group noted, first introduced it “in connection with the commander’s duty 

to dispose of charges and specifications that have been preferred against a military accused.”73 The phrase initially 

appeared “in the paragraph concerning pre-referral ‘investigations,’ which would later become the basis for Article 

32 pretrial investigations.”74 Previously, under the Articles of War applicable to the Army in effect since 1775 (with 

periodic amendments), “military commanders were given little guidance concerning their disposition duties[.]”75

The Department of Defense recently described the complementary relationship of Articles 30, 32, and 34, UCMJ, 

with respect to disposing of charges in the “interest of justice and discipline”: 

When Congress enacted the UCMJ [in 1950], it sought to provide consistent 

statutory guidance to commanders and convening authorities in the exercise of 

their initial disposition and referral responsibilities, so it included the “interest of 

justice and discipline standard” in Article [30] as well as Article [32]. . . . Congress 

71 Report of the Military Justice Review Group, Part I: UCMJ Recommendations 291 (Dec. 22, 2015) [MJRG Report], available at 

https://ogc.osd.mil/mjrg.html.

72 10 U.S.C. § 830(c) (Article 30(c), UCMJ) (2019). Although the DAC-IPAD reviewed cases under the version of Article 30 in effect in 2016, the 

Military Justice Act of 2016 amended Article 30 to clarify “the language and organization of Article 30 in the context of current practice and related 

statutory provisions, with no substantive changes.” MJRG Report, supra note 71, at 291. Compare 10 U.S.C. § 830 (2016) with 10 U.S.C. § 830 

(2019). Article 30(a) and (b) set forth who may prefer charges against a Service member (any person subject to the UCMJ), how charges are preferred 

(in writing, under oath before a commissioned officer authorized to administer oaths), and the required content of the oath (the signer has personal 

knowledge of or has investigated the matters set forth in the charges and they are true, to the best of the signer’s knowledge and belief). 

73 MJRG Report, supra note 71, at 292.

74 Id. at 292–93.

75 Id. at 292. “The 1891 Manual, for example, advised commanders simply to ensure ‘that there are good grounds for sustaining the charges’ before acting 

upon them[.] . . . [William] Winthrop advised that ‘[o]nly such charges as, upon sufficient investigation, are ascertained to be supported by the facts—

are found to be sustained by at least prima facie evidence—should be preferred for trial,’ and that ‘[a]ll charges should be substantial and made in good 

faith.’” Id. (citations omitted).
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bound together the interests of justice and discipline in Article 34, requiring the 

convening authority to obtain the advice of [their] staff judge advocate—with 

respect to both the threshold legal questions of probable cause, proper charging, 

and jurisdiction, and the disposition decision itself—before referring charges and 

specifications to general court-martial for trial.

. . . Article 30, in conjunction with Article 34, codifies both the commanderjudge advocate partnership and the dual-purpose of the military justice system: 

to promote justice while maintaining discipline within the ranks. Throughout the 

history of the Code, legislators, servicemembers, and the public have regarded the 

dual-purpose nature of military law and the commander’s role in charging decisions 

with both admiration and skepticism.76

Once a convening authority exercises their discretion—in the interest of justice and discipline—to dispose of 

charges and specifications by referring them to trial by court-martial, the function of the trial is to seek justice. 

“Once a case is before a court-martial, it should be realized by all concerned that the sole concern is to accomplish 

justice under the law. . . . It is not proper to say that a military court-martial has a dual function as an instrument of 

discipline and as an instrument of justice. It is an instrument of justice and in fulfilling this function it will promote 

discipline.”77

2. Observation and Discussion

Observation 1: Article 30, UCMJ, directs that commanders and convening authorities determine 

what disposition should be made of charges “in the interest of justice and discipline.” Our review of 

investigative files, Article 32 reports, Article 34 advice, and the disposition action of commanders and 

convening authorities found that in cases in which the rationale for the disposition decision was indicated, 

the following factors were primary: probable cause, sufficiency of the evidence, multiple victims, victim 

preference, and the declination of other jurisdictions to prosecute. These factors seem to be considerations 

related to “the interest of justice.” We did not observe separate considerations related to “the interest of 

discipline.”

76 Id. at 293, n.15 (citing Manual for Courts-Martial, United States (2016) Part I, ¶3 (“The purpose of military law is to promote justice, to assist 

in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to 

strengthen the national security of the United States.”); see also United States v. Littrice, 13 C.M.R. 43, 47 (C.M.A. 1953) (“It was generally recognized 

[by Congress] that military justice and military discipline were essentially interwoven. . . . [C]onfronted with the necessity of maintaining a delicate 

balance between justice and discipline, Congress liberalized the military judicial system but also permitted commanding officers to retain many of the 

powers held by them under prior laws.”); Ad Hoc Committee to Study The Uniform Code of Military Justice, Good Order and Discipline 

in the Army, Report to Hon. [Wilber M.] Brucker, Secretary of the Army 11–12 (18 Jan. 1960) [commonly known as the Powell Report, 

available at https://www.loc.gov/rr/frd/Military_Law/Powell-report.html] (“In the development of discipline, correction of individuals is indispensable; 

in correction, fairness or justice is indispensable. Thus, it is a mistake to talk of balancing discipline and justice—the two are inseparable . . . .”); 

Department of Defense, Report of the Task Force on the Administration of Military Justice in the Armed Forces 14 (1972) (“[N]o 

need is seen to consider the sacrifice of justice for the sake of discipline. The two are, for American servicemen, inextricable, and the latter cannot exist 

without the former.”)).

77 Id. at 16 (quoting the Powell Report, supra note 76, at 11).
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

The Committee appreciates that the purpose of military justice is not solely to seek justice but also to maintain 

good order and discipline in the Armed Forces.78 However, when documents containing the convening authority’s 

rationale for its disposition decisions were available to reviewers, the reasons provided reflected legal concerns—the 

“interests of justice”—rather than the consideration of some adverse effect on the command or other concerns 

that fall squarely under the maintenance of good order and discipline. It was therefore difficult to assess how the 

disposition decisions advanced the interests of discipline. 

In addition, it was difficult to understand fully what “the interest of justice and discipline” standard means from a 

practical standpoint,79 and the Committee members differed in their assessments of its actual utility. In practice, it 

did not appear that either the standardized forms used in some Military Services to capture disposition decisions or 

the more informal methods of documenting case dispositions in investigative files reflected factors such as the effect 

of the offense on the health, safety, and good order and discipline of the command. Accordingly, some Committee 

members viewed the “interest of justice and discipline” standard as too subjective, while others viewed it as an 

appropriate consideration for military commanders charged with the responsibility of determining the appropriate 

disposition of cases.80

Still other members pointed out that if the military wants to retain jurisdiction over serious crimes that could result 

in a felony conviction, then a commander’s primary focus should be the evidentiary considerations that guide the 

exercise of prosecutorial discretion in federal and state jurisdictions.81 Another member cautioned that she did not 

observe a great appetite from civilian prosecutors for prosecuting military members in dual-jurisdiction cases.82 As 

she noted, sometimes the civilian authorities would take the case for a couple of days, and then hand it back to the 

military; in other instances, the civilian authorities would hand the case off to the military immediately upon receipt 

of the complaint.83

B.Article 33, UCMJ, Disposition Guidance

1. Background

Prior to January 1, 2019, “the President’s core policy guidance with respect to disposition of offenses under the 

Code” in accordance with the direction in Article 30, UCMJ, to dispose of charges and specifications “in the 

interest of justice and discipline” was found in Rule for Courts-Martial 306(b).84 The Discussion to the Rule set 

forth a nonexclusive and nonweighted list of factors that commanders should consider when determining how to 

dispose of criminal allegations against a Service member.85 These factors included both the views of the victim as to 

disposition and the availability and admissibility of evidence. 

78 See Transcript of DAC-IPAD Public Meeting 66 (Nov. 15, 2019) (comment of Brigadier General (Ret.) Schwenk).

79 Id. at 67.

80 Id. at 66 (comment of Ms. Bashford).

81 See CRWG Proposals, supra note 35, at 7.

82 See Transcript of DAC-IPAD Public Meeting 70 (Nov. 15, 2019) (comment of Ms. Bashford).

83 Id. 

84 MJRG Report, supra note 71, at 295; Manual for Courts-Martial, United States (2016) [2016 MCM], Rule for Courts-Martial (R.C.M.) 306(b) 

(Discussion). 

85 2016 MCM, supra note 84, R.C.M. 306(b) (Discussion). 
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MCIO PENETRATIVE SEXUAL OFFENSE INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

In 2015 the Department of Defense observed that the guidance contained in Rule for Courts-Martial 306(b) and 

its Discussion “omits the explicit ‘quantum of evidence’ calculus which guides the charging decision of civilian 

prosecutors and United States Attorneys.”86 In other words, the Discussion did not include as a specific factor 

whether the admissible evidence in the case is probably sufficient to prove the accused’s guilt beyond a reasonable 

doubt. As a result, DoD proposed that Congress help “‘fill the gap’ that [existed] in military practice between the 

probable cause standard for referral of charges to court-martial and the ‘beyond a reasonable doubt’ standard for 

conviction.”87 DoD noted, “In civilian practice, this gap has been filled with structured decisional principles and 

charging standards to help guide prosecutors in the prudent and effective exercise of prosecutorial discretion. In 

military practice, the disposition decision-making guidance under [the UCMJ and Rules for Courts-Martial] is 

relatively unstructured.”88

Accordingly, DoD proposed, and Congress in the Military Justice Act of 2016 required in Article 33, UCMJ, that 

the President direct the Secretary of Defense to issue 

non-binding guidance regarding factors that commanders, convening authorities, 

staff judge advocates, and judge advocates should take into account when exercising 

their duties with respect to disposition of charges and specifications in the interest 

of justice and discipline under sections 830 and 834 of this title (articles 30 

and 34). Such guidance shall take into account, with appropriate consideration 

of military requirements, the principles contained in official guidance of the 

Attorney General to attorneys for the Government with respect to disposition of 

Federal criminal cases in accordance with the principle of fair and evenhanded 

administration of Federal criminal law.89

86 MJRG Report, supra note 71, at 296, n.25 (citations omitted).

87 Id. at 338.

88 Id. The Principles of Federal Prosecution contained in the United States Attorneys’ Manual (now Justice Manual) provide:

The attorney for the government should commence or recommend Federal prosecution if he/she believes that the 

person’s conduct constitutes a Federal offense and that the admissible evidence will probably be sufficient to obtain and 

sustain a conviction, unless, in his/her judgment, prosecution should be declined because: 

(1) No substantial Federal interest would be served by prosecution; 

(2) The person is subject to effective prosecution in another jurisdiction; or 

(3) There exists an adequate non-criminal alternative to prosecution. 

Id. at 337 (citing U.S. Dep’t of Justice, United States Attorneys’ Manual § 9–27.220 (Grounds for Commencing or Declining Prosecution)). The 

MJRG Report stated: 

Most state jurisdictions employ similar charging standards, with some form of the “sufficient admissible evidence” 

criterion. See, e.g. Denver District Attorney Policies, The Charging Decision (“If a determination is made that the facts 

do not support a reasonable belief that the charge can be proven beyond a reasonable doubt, there is a legal and ethical 

duty to decline to file charges.”); Wash. Rev. Code Ann. § 9.94A.411 (“Crimes against persons will be filed if sufficient 

admissible evidence exists, which, when considered with the most plausible, reasonably foreseeable defense that could be 

raised under the evidence, would justify conviction by a reasonable and objective fact finder.”).

Id. at 337, n.8.

89 10 U.S.C. § 833 (2019) (Article 33, UCMJ).
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

The Article 33, UCMJ, Disposition Guidance, found at Appendix 2.1 of the Manual for Courts-Martial, went into 

effect on January 1, 2019.90 The Disposition Guidance thus was not in effect when the investigative files that the 

CRWG reviewed were created, since all were closed in fiscal year 2017. 

The Disposition Guidance identifies an unweighted list of 14 factors that the commander or convening authority 

“should consider, in consultation with a judge advocate,” in order to determine whether the “interests of justice and 

discipline are served by trial by court-martial or other disposition in a case.”91 Particularly applicable to allegations of 

penetrative sexual offenses are 3 of the 14 factors: “the views of the victim as to disposition,” “[t]he availability and 

willingness of the victim . . . to testify,” and “[w]hether admissible evidence will likely be sufficient to obtain and 

sustain a conviction in a trial by court-martial.”92

In addition to encouraging consultation with a judge advocate when considering disposition decision factors, the 

Disposition Guidance specifies that commanders should seek advice from a judge advocate regarding disposition options 

and the advice should “include a discussion of the advantages and disadvantages of each of the available dispositions.”93

The guidance does not address the form of the advice—for example, whether it should be written or oral.

Under current military justice practice, the staff judge advocate is not required to opine in the pretrial advice as 

to whether there is sufficient admissible evidence to obtain a conviction. As one Committee member observed, 

“[T]he answer, of course, from the panels we had is it’s discussed in private with the convening authority, but it’s 

not written down.”94 In addition, in response to a request for information submitted to each of the Military Services 

in 2019, several responded that they did not expect much change to their referral practice based on the Disposition 

Guidance, as they were already considering many of the same factors.95

90 Manual for Courts-Martial, United States (2019) [2019 MCM] at App. 2.1. 

91 Id. at App. 2.1, Sec. 2.1.

92 Id. at App. 2.1, Sec. 2.1 e, g, and h.

93 Id. at App. 2.1, Sec. 2.2.

94 See Transcript of DAC-IPAD Public Meeting 74 (Nov. 15, 2019) (comment of Brigadier General (Ret.) Schwenk).

95 Service Criminal Law/Military Justice Division Combined Responses to DAC-IPAD Request for Information Set 11 (May 15, 2019) [RFI 11],

Prosecution Decisions, Victim Participation, and Conviction/Acquittal Rates, at 25, available at https://dacipad.whs.mil/images/Public/07-RFIs/

DACIPAD_RFI_Set11_20190515_Questions_Answers_20191204.pdf.
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CHAPTER 1. FINDINGS AND OBSERVATIONS BASED ON THE REVIEW OF 

MCIO PENETRATIVE SEXUAL OFFENSE INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

A comparison of the factors in R.C.M. 306(b) (Discussion) and those included in the Article 33, UCMJ, 

Disposition Guidance, is set forth below.

R.C.M. 306(b) (Discussion) Factors Article 33, UCMJ, Disposition Guidance Factors

In deciding how an offense should be disposed of, factors 

the commander should consider, to the extent they are 

known, include:

(A) the nature of and circumstances surrounding the 

offense and the extent of the harm caused by the offense, 

including the offense’s effect on morale, health, safety, 

welfare, and discipline;

(B) when applicable, the views of the victim as to 

disposition;

(C) existence of jurisdiction over the accused and the 

offense;

(D) availability and admissibility of evidence;

(E) the willingness of the victim and others to testify;

(F) cooperation of the accused in the apprehension or 

prosecution of another accused;

(G) possible improper motives or biases of the person(s) 

making the allegation(s);

(H) availability and likelihood of prosecution of the same or 

similar and related charges against the accused by another 

jurisdiction;

(I) appropriateness of the authorized punishment to the 

particular accused or offense.96

The military justice system is a powerful tool that preserves 

good order and discipline while protecting the civil rights 

of Service members. It is a commander’s duty to use it 

appropriately. In determining whether the interests of justice 

and good order and discipline are served by trial by courtmartial or other disposition in a case, a command or convening 

authority should consider, in consultation with a judge 

advocate, the following:

a. The mission-related responsibilities of the command;

b. Whether the offense occurred during wartime, combat, or 

contingency operations;

c. The effect of the offense on the morale, health, safety, 

welfare, and good order and discipline of the command.

d. The nature, seriousness, and circumstances of the offense 

and the accused’s culpability in connection with the offense;

e. In cases involving an individual who is a victim under Article 

6b, the views of the victim as to disposition;

f. The extent of the harm caused to any victim of the offense;

g. The availability and willingness of the victim and other 

witnesses to testify;

h. Whether admissible evidence will likely be sufficient to obtain 

and sustain a conviction in a trial by court-martial;

i. Input, if any, from law enforcement agencies involved in or 

having an interest in the specific case;

j. The truth-seeking function of trial by court-martial;

k. The accused’s willingness to cooperate in the investigation 

or prosecution of others;

l. The accused’s criminal history or history of misconduct, 

whether military or civilian, if any;

m. The probable sentence or other consequences to the 

accused of a conviction;

n. The impact and appropriateness of alternative disposition 

options—including nonjudicial punishment or administrative 

action—with respect to the accused’s potential for continued 

service and the responsibilities of the command with respect 

to justice and good order and discipline.97

96 2016 MCM, supra note 84, at R.C.M. 306(b). Until 2014, the list of factors also included “the character and military service of the accused,” and 

“other likely issues.” Manual for Courts-Martial, United States (2012) [2012 MCM], R.C.M. 306(b) (Discussion). Congress directed that the 

Manual for Courts-Martial delete “the character and military service of the accused from the matters a commander should consider in deciding how to 

dispose of an offense.” National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66 [FY14 NDAA], § 1708, 127 Stat. 672 (2013).

97 2019 MCM, supra note 90, at App. 2.1, Sec. 2.1.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

2. Observations and Discussion 

Observation 2: In many cases, the victim’s preference as to disposition seems to be given more weight 

by convening authorities than the consideration of whether admissible evidence will likely be sufficient 

to obtain and sustain a conviction in a trial by court-martial. The Article 33 (non-binding) Disposition 

Guidance may not give appropriate weight to the sufficiency-of-the-evidence factor.

Case reviewers observed that in many cases, convening authorities apparently treated the victim’s preference with 

respect to referral of penetrative sexual offenses to trial by general court-martial as dispositive.98 The Air Force’s 

Military Justice Division Chief underscored this impression by testifying to the Committee that in the Air Force if 

the victim was cooperating in the accused’s prosecution, and there was probable cause to believe that the accused 

had committed a sexual offense, the case would be referred to trial.99

The DAC-IPAD acknowledges that declining to prosecute is typically appropriate when the decision accords 

with a victim’s preference. The Committee further notes that the bulk of reviewed cases that contained evidence 

of a victim’s preference reflected their desire not to proceed to trial.100 The Committee is interested in further 

analyzing those cases reviewed in which the victim’s preference to go forward to trial prevailed even though there 

was insufficient admissible evidence to obtain and sustain a conviction. Such cases are distinguishable from those in 

which obtaining a conviction may be difficult but sufficient evidence nonetheless exists to prove the elements of the 

offense beyond a reasonable doubt.101

Observation 3: While judge advocates often provided investigators advice on probable cause for submission 

of fingerprints and DNA to federal databases, it is unclear what, if any, advice on appropriate disposition 

factors, including advice on probable cause, judge advocates provided to the initial disposition authority. 

In its March 2019 Third Annual Report, the DAC-IPAD discussed issues pertaining to the investigative files’ 

documentation of whether there is probable cause to believe that the subject committed a penetrative sexual 

offense.102 Specifically, the DAC-IPAD’s findings and recommendations responded to a lack of clarity in 

investigative files as to how—or whether—such a determination of probable cause is made or documented prior to 

the initial disposition authority’s decision.103

98 See Transcript of DAC-IPAD Public Meeting 71–72 (Nov. 15, 2019) (comment of Ms. Bashford).

99 See Transcript of DAC-IPAD Public Meeting 105 (Aug. 23, 2019) (testimony of Colonel Julie Pitvorec, U.S. Air Force, Chief, U.S. Air Force 

Government Trial and Appellate Counsel Division).

100 See Transcript of DAC-IPAD Public Meeting 71–73 (Nov. 15, 2019) (comment of Ms. Bashford).

101 Id. at 76–77.

102 DAC-IPAD Third Annual Report, supra note 20, at 54–56.

103 After reviewing the investigative files, the DAC-IPAD made the following findings and recommendation regarding “probable cause” in its March 2019 

Third Annual Report:

Finding 21: There is significant confusion among investigators, judge advocates, and commanders as to what the terms 

“probable cause” (reasonable grounds to believe) and “unfounded” (false or baseless) mean, when and by whom probable 

cause and unfounded determinations are made, and how they are documented throughout the investigative process. 

Finding 22: The standards, timing, and authority for collecting and submitting fingerprints to the federal database, 

making probable cause determinations, and submitting final disposition information to the federal database are unclear 
35

CHAPTER 1. FINDINGS AND OBSERVATIONS BASED ON THE REVIEW OF 

MCIO PENETRATIVE SEXUAL OFFENSE INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

Many of the investigative files reviewed by the CRWG reflected a trial counsel’s opinion as to probable cause for 

the sole purpose of determining whether investigators could submit the subject’s DNA and fingerprints to national 

databases. Reviewers observed that the trial counsel routinely provided such an opinion upon or shortly after the 

conclusion of the subject’s interrogation; the subject’s interrogation, in turn, occurred in many cases shortly after 

the MCIO received a report containing an allegation of a penetrative sexual offense. Revised investigative policy 

guidance recently removed the requirement that a judge advocate be involved in determining probable cause prior 

to submitting fingerprints to the federal database,104 although Service regulations may retain that requirement. 

In contrast to military practice, there exists no analogous procedure in civilian jurisdictions, by which a subject’s 

fingerprints or DNA are obtained without judicial authorization for submission to a federal database prior to 

arrest.105

In some cases reviewed by the CRWG, the trial counsel determined that probable cause existed to submit DNA and 

fingerprints, and then later concluded, for the same investigation, that probable cause did not exist to believe that 

the subject had committed a penetrative sexual offense.106 One reviewer observed this questionable pattern unfold 

when the complainant’s statement to law enforcement did not articulate a crime.107 The same reviewer noted a case 

in which there was a determination that probable cause existed to submit the subject’s fingerprints to a national 

database, but no probable cause existed to submit the subject’s DNA.108 The only explanation for such occurrences, 

surmised the CRWG member, was that practitioners apply different definitions of probable cause in different 

situations.109

Even though reviewers noted judge advocate involvement in some probable cause determinations documented in 

the investigative file, it was unclear from the material reviewed whether initial disposition authorities received advice 

on probable cause and the disposition factors from their judge advocates and, if so, when and how they received 

that advice.110 The Committee should follow up on implementation of the new Disposition Guidance’s provisions 

regarding judge advocate consultation and advice through site visits to assess whether judge advocates’ advice is 

being conveyed to the initial disposition authority at a time and in an appropriate manner to inform the decision 

about what action, if any, to take on an allegation. 

Observation 4: The initial disposition authority often did not identify which factors were considered 

significant in the disposition decision and currently is not required to do so. 

and not uniform across the Services. 

Finding 23: MCIO coordination with judge advocates on a probable cause determination for the submission of 

fingerprints often is not documented in the investigative file.

Id. at 52, 59. 

104 See Dep’t of Def. Instr. 5505.11, Fingerprint Reporting Requirements (October 31, 2019).

105 See Transcript of DAC-IPAD Public Meeting 60, 80 (Nov. 15, 2019) (comment of Ms. Bashford). 

106 See id. at 80.

107 Id.

108 Id. at 80–81.

109 Id. at 80.

110 See id. at 78–79 (comment of Ms. Tokash).
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AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

As part of their review of investigative files, CRWG members assessed the reasonableness of the initial disposition 

authority’s decision on disposition of allegations of a penetrative sexual offense. Reviewers observed that some 

disposition authorities stated what factors were significant to their determinations, but many did not.111 While 

members found the disposition decisions reasonable in the overwhelming majority of cases, they also determined 

that having access to the commander’s contemporaneous written rationale for the prosecutorial decision enhanced 

the members’ confidence in their own assessment.112 Irrespective of whether the reviewers agreed or disagreed with 

the rationale for the prosecutorial decision, it enabled them to understand the reason for that decision.113

The CRWG reviewers observed, after careful and time-consuming review, that the disposition decisions were 

supported by sound legal principles;114 however, others assessing a given disposition decision will not have the ability 

or time to review the entire investigative file.115 The initial disposition authority could greatly enhance transparency 

of disposition decisions by (1) identifying those factors from the Article 33 Disposition Guidance that they 

considered important to the decision and (2) including a concise factual narrative of the allegation.116 Adequately 

documenting the factors considered by the disposition authority in reaching their disposition decision could instill 

additional confidence in the military justice system and combat the perception of convening authority bias.117

C.Article 32, UCMJ, Preliminary Hearing Determination of Probable Cause 

1. Background

Article 32, UCMJ, requires a preliminary hearing before a general court-martial convening authority may refer a 

case to trial by general court-martial.118 One of the purposes of the Article 32 hearing is to determine whether there 

is probable cause to believe that the accused committed the charged offense.119 Indeed, the preliminary hearing 

officer’s report to the convening authority who directed the hearing must include a determination of whether the 

government presented sufficient evidence to establish probable cause to believe that the accused committed an 

offense under the UCMJ.120 However, if the preliminary hearing officer determines that the government failed 

to establish probable cause, the general court-martial convening authority may nonetheless refer the charges and 

specifications to a general court-martial so long as the staff judge advocate opines that probable cause does exist 

111 See CRWG Proposals, supra note 35, at 11.

112 See Transcript of DAC-IPAD Public Meeting 83–84 (Nov. 15, 2019) (comment of Brigadier General (Ret.) Schwenk).

113 Id. at 84.

114 Id. at 81–82 (comment of Mr. Markey).

115 Id. at 85 (comment of Ms. Bashford).

116 See DAC-IPAD Third Annual Report, supra note 20, at 5–6, 42–47 (Recommendations 5–6 and Findings 14–20).

117 See CRWG Proposals, supra note 35, at 11; see also Transcript of DAC-IPAD Public Meeting 81–83 (Nov. 15, 2019) (comment of Mr. Markey).

118 10 U.S.C. § 832 (2019) (Article 32, UCMJ); see also 10 U.S.C. § 832 (2014), the version of the statute in effect during the time period of the 

investigative files reviewed. The amended provision left unchanged both the requirement for a preliminary hearing prior to referral to general courtmartial and the essential purposes of the hearing.

119 10 U.S.C. § 832(a)(2)(B) (2019) (Article 32(a)(2)(B), UCMJ); see also 10 U.S.C. § 832(a)(2)(A) (2014), the version of the statute in effect during the 

time period of the investigative files reviewed.

120 10 U.S.C. § 832(c) (2019) (Article 32(c), UCMJ); see also 10 U.S.C. § 832(c) (2014), the version of the statute in effect during the time period of the 

investigative files reviewed.
37

CHAPTER 1. FINDINGS AND OBSERVATIONS BASED ON THE REVIEW OF 

MCIO PENETRATIVE SEXUAL OFFENSE INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

(among other requirements).121 The staff judge advocate’s opinion may be based on evidence in addition to that 

presented during the preliminary hearing.122

As part of its review of investigative files that resulted in charges being preferred against an accused for a penetrative 

sexual offense, the CRWG examined the preliminary hearing officers’ reports, which were present unless the accused 

had waived the hearing. Some of the reports contained only conclusions to the questions that Article 32, UCMJ, 

requires the preliminary hearing officer to answer, with little or no analysis; others contained a detailed rationale 

supporting the preliminary hearing officer’s determination of whether the government submitted sufficient evidence 

to establish probable cause to believe that the accused had committed one or more penetrative sexual offenses.

The Military Justice Act of 2016 amended Article 32, UCMJ, to require that for preliminary hearings held on or 

after January 1, 2019,123 the preliminary hearing officer’s report must contain 

[f]or each specification, a statement of the reasoning and conclusions of the hearing 

officer with respect to determinations [of form of the charges, probable cause, and 

jurisdiction], including a summary of relevant witness testimony and documentary 

evidence presented . . . and any observations of the hearing officer concerning the 

testimony of witnesses and the availability and admissibility of evidence at trial.124

2. Observations and Discussion

Observation 5: Detailed Article 32 preliminary hearing reports containing a summary of the facts 

supporting the elements and the preliminary hearing officer’s analysis and conclusions are useful both to 

special victims’ counsel or victims’ legal counsel and to defense counsel in advising their clients, as well as 

to staff judge advocates and convening authorities in rendering advice and making decisions on the charges, 

probable cause, jurisdiction, and dispositions.

Detailed analytical explanations of the rationale underlying the Article 32 preliminary hearing officer’s conclusions 

are helpful in understanding and evaluating those conclusions in light of the evidence contained in the investigative 

files. Their assessment of the strengths and weaknesses of the case, including the credibility of witnesses and 

evidence, can assist staff judge advocates and convening authorities in determining further action on the charges, 

including whether referral to court-martial is appropriate. Such reports provide accountability and maintain the 

integrity of the process.125

The Committee supports the requirement, enacted as part of the Military Justice Act of 2016, to include additional 

detail and analysis in the preliminary hearing officer’s report. However, it has yet to be determined whether the 

121 See 10 U.S.C. § 834(a)(1)(B) (2019) (Article 34(a)(1)(B), UCMJ); see also 10 U.S.C. § 832(a)(2) (2014) and 2016 MCM, supra note 84, at R.C.M. 

406(b)(2) (Discussion), in effect during the time period covered by the investigative files reviewed (“The standard of proof to be applied in R.C.M. 

406(b)(2) is probable cause.”).

122 Article 34(a)(1)(B), UCMJ; compare Article 34(a)(2) (2014) (“ . . . the specification is warranted by the evidence indicated in the report of a preliminary 

hearing under section 832 of this title (article 32) (if there is such a report) . . .”). 

123 Exec. Order 13825, 83 Fed. Reg. 9889 (March 1, 2018) at Sec. 8. 

124 Article 32(c)(1), UCMJ.

125 See CRWG Proposals, supra note 35, at 13; see also Transcript of DAC-IPAD Public Meeting 87–88 (Nov. 15, 2019) (comment of Ms. Bashford).
38

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

additional required detail is sufficient. One member stated that he hoped the preliminary hearing officer considered 

all the factors contained in the Article 33, UCMJ, Disposition Guidance when making a recommendation for 

disposition, affording appropriate weight to factors such as the availability of sufficient admissible evidence to 

support a conviction.126

Observation 6: On the basis of its reviews of investigative files and Article 32 preliminary hearing reports, 

the CRWG noted that sufficient evidence for a probable cause determination is not always presented at the 

Article 32 hearing. The Article 32 preliminary hearing officer should be presented with sufficient evidence to 

support a probable cause determination at that hearing, where it is subject to challenge by the defense.

The DAC-IPAD has concerns regarding cases in which charges and specifications for a penetrative sexual offense 

were preferred that the preliminary hearing officer determined were not supported by evidence establishing probable 

cause to believe that the accused had committed the offense.127 The majority of such charges and specifications 

were not ultimately referred to court-martial.128 However, upon the advice of the staff judge advocate that there was 

probable cause to believe that the accused committed a penetrative sexual offense, general court-martial convening 

authorities in cases completed in fiscal year 2017 referred 32 cases out of a total of 80 cases (40%) in which the 

preliminary hearing officer—a trained judge advocate in all cases—had determined lacked probable cause.129 Fortyseven percent of those cases referred to trial against the preliminary hearing officer’s recommendation resulted in 

dismissal of the affected charge either before trial or prior to a verdict; of those cases tried to verdict, 76% resulted in 

acquittal, and 24% resulted in conviction on the penetrative sexual offense.130 CRWG reviewers expressed concern 

about cases referred to trial by general court-martial that the preliminary hearing officer determined lacked probable 

cause to believe the accused had committed a penetrative sexual offense. If such referrals were based on evidence not 

presented at the preliminary hearing, the benefits of the hearing’s adversarial process were lost.131 The DAC-IPAD 

will continue to investigate these issues. 

Observation 7: The lack of a binding probable cause determination by the preliminary hearing officer, 

which allows the staff judge advocate—without explanation—to come to a different conclusion on probable 

cause, reduces the usefulness of the Article 32 hearing.

Military justice practitioners told the DAC-IPAD that the staff judge advocate, when formulating the Article 34, 

UCMJ, pretrial advice for the general court-martial convening authority, had access to evidence in addition to that 

126 See Transcript of DAC-IPAD Public Meeting 86–87 (Nov. 15, 2019) (comment of Brigadier General (Ret.) Schwenk).

127 Id. at 89–91, 95–99 (member deliberations); the DAC-IPAD’s concerns arise from the CRWG’s review of investigative case files closed in fiscal year 

2017 as well as the Committee’s analysis of the Article 32, UCMJ, preliminary hearing statistical data presented and discussed in Chapter 2. See infra

pp. 49–50 and Table 2.1, “Fiscal Years 2017 and 2018 Article 32 Preliminary Hearings Involving Penetrative Sexual Offenses That Resulted in a ‘No 

Probable Cause’ Determination for One or More Penetrative Sexual Offenses.” 

128 See infra pp. 51–52 and Figure 2.1, “Fiscal Years 2017 and 2018 ‘No Probable Cause’ Determinations According to the Grade of the Preliminary 

Hearing Officer and the Convening Authority’s Decision to Either Dismiss or Refer the Penetrative Sexual Offense.” 

129 See infra pp. 52–53 and Figure 2.2, “Fiscal Year 2017 Article 32 Preliminary Hearing Officer ‘No Probable Cause’ Determinations and the Ultimate 

Disposition of the Penetrative Sexual Offense.”

130 Id.

131 See Transcript of DAC-IPAD Public Meeting 99-109 (Nov. 15, 2019) (member deliberations); see also infra pp. 51-52. 
39

CHAPTER 1. FINDINGS AND OBSERVATIONS BASED ON THE REVIEW OF 

MCIO PENETRATIVE SEXUAL OFFENSE INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

presented to the preliminary hearing officer.132 Military trial defense practitioners stated that taking into account 

evidence not presented by the government counsel at the preliminary hearing undermines the value of the hearing’s 

adversarial process and the preliminary hearing officer’s resulting recommendations.133

In addition, though preliminary hearing officers often provided detailed analyses to support their probable cause 

determinations, for the most part staff judge advocates do not include any rationale for their opinions in the 

Article 34, UCMJ, pretrial advice, including grounds for disagreement with the preliminary hearing officer. In 

one exception to the norm, in a case that the general court-martial convening authority initially referred to general 

court-martial, the staff judge advocate who recommended withdrawal and dismissal of the charges and specifications 

also provided to the general court-martial convening authority a list of evidentiary concerns, in addition to the 

victim’s decision not to participate further in the case.134

The current preliminary hearing system, which allows the staff judge advocate to override the preliminary hearing 

officer’s determination on probable cause with no explanation, is not operating effectively as a shield against 

referring unsupported charges to general court-martial.135 The question of what best practices should be adopted to 

modify current Article 32, UCMJ, practices in order to avoid such referrals remains open, however.

D.Article 34, UCMJ, Staff Judge Advocate Pretrial Advice 

1. Background

Pursuant to Article 34, UCMJ, a convening authority may not refer a case to a general court-martial without 

the staff judge advocate’s written opinion that the specification alleges an offense under the UCMJ, that there is 

probable cause to believe that the accused committed the offense charged, and that a court-martial would have 

jurisdiction over the accused and the offense.136 The staff judge advocate is also required to provide a written 

recommendation as to the disposition that should be made of the charges and specifications “in the interest of 

justice and discipline.”137 Staff judge advocates are not required to include in their pretrial advice any legal or factual 

132 See, e.g., Transcript of DAC-IPAD Public Meeting 81 (Aug. 23, 2019) (testimony of Colonel Pitvorec); see also id. at 126–20 (testimony of Colonel 

Patrick Pflaum, U.S. Army, Chief, Criminal Law Division; Captain Robert P. Monahan, Jr., U.S. Navy, Deputy Assistant Judge Advocate General 

(Criminal Law) and Director, Office of the Judge Advocate General’s Criminal Law Policy Division; and Lieutenant Colonel Adam M. King, U.S. 

Marine Corps, Military Justice Branch Head, U.S. Marine Corps Judge Advocate Division).

133 Id. at 250–52, 288–89 (testimony of Colonel Valerie Danyluk, U.S. Marine Corps, Chief Defense Counsel); see also id. at 255–56, 270–73 (testimony 

of Commander Stuart T. Kirkby, U.S. Navy, Director, Defense Counsel Assistance Program); 275–77 (testimony of Colonel Christopher Morgan, 

U.S. Air Force, Chief, Trial Defense Division, Air Force Legal Operations); and 277–79 (Colonel Roseanne Bennett, U.S. Army, Chief, Trial Defense 

Service).

134 Transcript of DAC-IPAD Public Meeting 107–08 (Nov. 15, 2019) (comment of Ms. Tokash).

135 See id. at 204 (comment of the Honorable Leo I. Brisbois, Committee member); cf. Wayne LaFave, Jerold Israel, Nancy King, & Orin Kerr, 

Criminal Procedure § 14.1(a) (Screening) (4th ed. 2019 update) (The preliminary hearing screening process serves to “prevent hasty, malicious, 

improvident, and oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant 

and the public the expense of a public trial, to save the defendant from the humiliation and anxiety involved in public prosecution, and to . . . [ensure 

that] there are substantial grounds upon which a prosecution may be based.”) (citation omitted); see also MJRG Report, supra note 71, at 316 (The goal 

of the pretrial investigation “was to ensure adequate preparation of cases; to guard against hasty, ill-considered charges; to save innocent persons from 

the stigma of unfounded charges; and to prevent trial cases from going before general courts-martial.”) (citation omitted).

136 Article 34, UCMJ; see also 10 U.S.C. § 834 (2016).

137 Article 34(a)(2), UCMJ; see also 10 U.S.C. § 834(b)(2) (2016).
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AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

analysis or rationale for their conclusions or recommendation.138 The trial counsel is required to provide the staff 

judge advocate’s written pretrial advice to the defense if the case is referred to general court-martial.139

The Military Justice Act of 2016 amended Article 34, UCMJ, “to clarify ambiguities in the language of the [prior 

version of the provision] and to expressly tie the staff judge advocate’s pre-referral disposition recommendation 

to the ‘in the interest of justice and discipline’ standard for disposition of charges and specifications under Article 

30[(c)].”140 The amendments to Article 34 took effect on January 1, 2019.141

2. Observations and Discussion

Observation 8: Many sexual assault cases are being referred to courts-martial when there is insufficient 

evidence to support and sustain a conviction.142

a. Article 32 preliminary hearing officers do not consistently include in their reports an evaluation of 

whether there is sufficient admissible evidence to support a conviction. Such an evaluation would be 

helpful to subordinate commanders, convening authorities, and staff judge advocates (SJAs). 

b. SJAs rarely provide an evaluation of the sufficiency of the evidence to support a conviction in the 

Article 34 pretrial advice, and they are not required to do so. Including such an analysis as well as the 

SJA’s conclusion as to whether there is sufficient admissible evidence to obtain and sustain a conviction 

in a trial by court-martial would be helpful to convening authorities. (See Observation 9.)

c. Article 34 requires SJAs to provide convening authorities a binding determination of probable cause as 

the standard for referring a case to trial. However, probable cause may not be the appropriate standard 

for referring a case to trial. 

d. In many cases, consideration of “the sufficiency of evidence to obtain and sustain a conviction” did not 

seem to be afforded the same deference as in the Justice Manual (formerly the U.S. Attorneys’ Manual).

As part of their assessment of cases in which one or more charges of a penetrative sexual offense were preferred 

against an accused, CRWG members determined whether, in their opinion, the evidence in the investigative file 

established probable cause to believe that the accused committed the charged offenses.143 CRWG members also 

determined whether, in their opinion, there was sufficient admissible evidence to prove the accused’s guilt of the 

penetrative sexual offense beyond a reasonable doubt.144

138 2016 MCM, supra note 84, at R.C.M. 406 (Discussion) (“The advice need not set forth the underlying analysis or rationale for its conclusions.”).

139 2016 MCM, supra note 84, at R.C.M. 701(a)(1)(A) (2016).

140 MJRG Report, supra note 71, at 341. 

141 National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328 [FY17 NDAA], § 5203, 130 Stat. 2000 (2016) (subsequent 

amendments not included).

142 The Committee’s observations are based on investigative and case materials provided to the CRWG for review and do not encompass evidence 

developed by either the prosecution or defense that was not available to CRWG members. In addition, because of time constraints the CRWG did not 

review videotapes of interviews included in some case files. See supra p. 22, for discussion of materials routinely provided for CRWG review.

143 See DAC-IPAD Third Annual Report, supra note 20, at Appendix F, Question 69.

144 Id.
41

CHAPTER 1. FINDINGS AND OBSERVATIONS BASED ON THE REVIEW OF 

MCIO PENETRATIVE SEXUAL OFFENSE INVESTIGATIVE CASE FILES CLOSED IN FISCAL YEAR 2017

CRWG members reviewed files of courts-martial in which the accused pled not guilty to a penetrative sexual 

offense:

(1) For cases that resulted in a conviction for the penetrative sexual offense, CRWG 

members overwhelmingly determined that evidence in the case files they reviewed 

was sufficient to obtain and sustain a conviction on the offense.

(2) For cases that resulted in acquittal for the penetrative sexual offense, CRWG 

members determined that the evidence contained in the case files they reviewed was 

sufficient to obtain and sustain a conviction on the penetrative sexual offense in 

approximately half of the cases; the evidence was insufficient to obtain and sustain a 

conviction on the penetrative sexual offense in the other half of the cases.145

Reviewers determined that many penetrative sexual offenses are referred to courts-martial when there is insufficient 

admissible evidence in the investigative file to obtain and sustain a conviction.146 Given the lack of transparency 

in the pretrial advice, it is hard to know why staff judge advocates are recommending the referral to general courtmartial of such cases. Possible explanations include the minimum referral standard of probable cause, the failure 

of preliminary hearing officers to take credibility into account when making their probable cause determinations, 

inaccurate legal appraisal of the sufficiency of admissible evidence, and the lack of candid written assessments by the 

staff judge advocate in the pretrial advice to the general court-martial convening authority due to concern that such 

assessments would somehow “tip their hands for the defense.”147

Reviewers observed that some of the Article 32, UCMJ, preliminary hearing officers’ reports explain that they 

do not take credibility into account when determining whether there is probable cause to believe that an accused 

committed a penetrative sexual offense. In those cases, the preliminary hearing officers find probable cause, even 

though their reports express serious doubts as to the credibility of key witnesses or evidence, thereby leaving the 

resolution of questions of credibility to the panel at trial.148

Even though the evidence may establish probable cause to believe that the accused committed a penetrative sexual 

offense, there is a “chasm between probable cause and beyond a reasonable doubt.”149 The review of investigative 

files, referral decisions, and results of trial leading to acquittal of the penetrative sexual offense or offenses suggests 

that the issue may be broader than the experience level of investigators and prosecutors. Instead, counsel and 

convening authorities may not be giving sufficient consideration to the likelihood of conviction for a penetrative 

sexual offense.150

Most preliminary hearing officers’ reports did not analyze whether the government presented sufficient admissible 

evidence to obtain and sustain a conviction for a penetrative sexual offense, and staff judge advocates rarely included 

such discussion in their Article 34, UCMJ, pretrial advice. The Article 33, UCMJ, Disposition Guidance now 

145 Transcript of DAC-IPAD Public Meeting 115–16 (Nov. 15, 2019) (comment of Ms. Bashford).

146 See, e.g., id. at 114.

147 See id. at 116–18; quotation, 117.

148 See id. at 117.

149 Id. at 120 (comment of Brigadier General (Ret.) Schwenk); see also supra pp. 31–32 for a discussion on assessing the sufficiency of admissible evidence 

in charging decisions.

150 Id.; see also MJRG Report, supra note 71, at 338.
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AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

provides that preliminary hearing officers, staff judge advocates, and convening authorities should consider the 

sufficiency of admissible evidence in making disposition recommendations and decisions. However, they are not 

required to consider the sufficiency of the evidence, or to give it any more weight than any other factor. There is also 

no current requirement to provide the convening authority with a written assessment of the disposition guidance 

factors. 

Observation 9: Currently Article 34, UCMJ, prohibits convening authorities from referring charges to a 

general court-martial unless the staff judge advocate provides written advice that the specification alleges an 

offense, there is probable cause to believe that the accused committed the offense, and jurisdiction exists. In 

addition, the staff judge advocate must provide a written recommendation as to the disposition to be made 

in the interest of justice and discipline. In the files reviewed, the staff judge advocate’s Article 34 pretrial 

advice to the general court-martial convening authority often consisted of conclusions without explanation. 

These unexplained conclusions are not useful in assessing factors relevant to a referral determination. The 

Article 34 pretrial advice could be more helpful to convening authorities if it included detailed explanations 

of the staff judge advocates’ conclusions. 

Staff judge advocates are generally not offering analysis or a rationale for either their probable cause determination 

or their referral recommendation in the written Article 34, UCMJ, pretrial advice to the general court-martial 

convening authority. Overall, the pretrial advice documents appear to be basic, “check-the-box” forms that, 

while enabling a convening authority to refer charges to a general court-martial and providing discoverable 

documentation of the advice, furnish no insights into what information or factors a staff judge advocate is relying 

on for their conclusions and recommendations.151 In contrast, detailed, written explanations of their conclusions 

and recommendation provided by preliminary hearing officers to the convening authority are a useful tool for 

understanding probable cause determinations and assessing factors relevant to a referral decision.

Concerns that providing written evidentiary and disposition analysis to defense counsel would give them an unfair 

advantage at trial seem to be misplaced. Since defense counsel are licensed attorneys with access to the evidence 

and are already aware of the issues involved in the case, there is no real need to continue to provide the convening 

authority only private, oral explanations.152 The better practice is to provide written explanations, with further oral 

explanation as necessary. A written legal analysis and rationale could enhance fairness, due process, and transparency 

in the military justice system. 

V.CONCLUSION

As directed by the DAC-IPAD, the Policy Working Group will analyze the issues in Observations 1–9, and the 

CRWG will continue to explore the issues in Findings 44–46, including through site visits. 

151 See generally Transcript of DAC-IPAD Public Meeting 123–24 (Nov. 15, 2019) (comment of Brigadier General (Ret.) Schwenk).

152 See generally id. at 117–18 (comment of Ms. Bashford).
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CHAPTER 2. ARTICLE 32, UCMJ, PRELIMINARY HEARINGS 

AND THE COURT-MARTIAL REFERRAL PROCESS

CHAPTER 2. ARTICLE 32, UCMJ, PRELIMINARY HEARINGS 

AND THE COURT-MARTIAL REFERRAL PROCESS

I.INTRODUCTION

As discussed in Chapter 1, the Case Review Working Group members and staff reviewed more than 2,000 

investigative and charging documents from individual military sexual offense case files, producing observations 

concerning the pretrial phase of the military justice process. The Committee has decided to analyze further the 

systemic issues that it observed during this review. These issues concern the substantive law and policies applicable 

to initial disposition decisions, the Article 32 preliminary hearing process, and the legal advice and other factors 

considered by convening authorities charged with determining the disposition of penetrative sexual offense charges 

under the Uniform Code of Military Justice.

The Acting General Counsel for the Department of Defense also requested that the DAC-IPAD examine pretrial 

events in the military justice system.153 The request arose from recommendations issued by the Committee’s 

predecessor panel, the Judicial Proceedings Panel (JPP or Panel). The JPP, in its Report on Panel Concerns Regarding 

the Fair Administration of Military Justice in Sexual Assault Cases (September 2017),154 noted issues similar to 

those identified by this Committee in its review of cases involving penetrative sexual offenses; as a result, the JPP 

recommended further study of several of them: preliminary hearings conducted under Article 32, UCMJ; the 

disposition guidance for judge advocates and commanders that the Secretary of Defense promulgated in compliance 

with Article 33, UCMJ, found in Appendix 2.1 of the Manual for Courts-Martial (2019 edition); and the staff 

judge advocate’s pretrial advice for convening authorities, required before referral to trial by general court-martial, 

under Article 34, UCMJ.155

The JPP recommendation related to Article 32, UCMJ, states:

JPP Recommendation 55: The Secretary of Defense and the Defense Advisory 

Committee on Investigation, Prosecution, and Defense of Sexual Assault in the 

Armed Forces (DAC-IPAD) continue the review of the new Article 32 preliminary 

hearing process, which, in the view of many counsel interviewed during military 

installation site visits and according to information presented to the JPP, no longer 

serves a useful discovery purpose. This review should look at whether preliminary 

hearing officers in sexual offense cases should be military judges or other senior 

judge advocates with military justice experience and whether a recommendation 

of such a preliminary hearing officer against referral, based on lack of probable 

153 See Memorandum from Mr. William S. Castle, Acting General Counsel for the Department of Defense, to Ms. Martha S. Bashford, DAC-IPAD 

Chair (June 7, 2018), available at https://dacipad.whs.mil/images/Public/10-Reading_Room/02_DACIPAD_Mtg_Materials/DACIPAD_Meeting_

Materials_20181019_Final.pdf.

154 See Judicial Proceedings Panel Report on Panel Concerns Regarding the Fair Administration of Military Justice in Sexual Assault 

Cases (Sept. 2017) [JPP Report on Fair Administration of Military Justice], available at https://jpp.whs.mil/public/docs/08-Panel_Reports/10_

JPP_Concerns_Fair_MJ_Report_Final_20170915.pdf.

155 The DAC-IPAD’s third annual report, released March 2019, contains an initial discussion of the Committee’s review of these issues. See DAC-IPAD 

Third Annual Report, supra note 20, at 121–26. 
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AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

cause, should be given more weight by the convening authority. This review should 

evaluate data on how often the recommendations of preliminary hearing officers 

regarding case disposition are followed by convening authorities and determine 

whether further analysis of, or changes to, the process are required.156

The JPP recommendations related to Article 33 and Article 34, UCMJ, state:

JPP Recommendation 57: After case disposition guidance under Article 33, 

UCMJ, is promulgated, the Secretary of Defense and DAC-IPAD conduct both 

military installation site visits and further research to determine whether convening 

authorities and staff judge advocates are making effective use of this guidance in 

deciding case dispositions. They should also determine what effect, if any, this 

guidance has had on the number of sexual offense cases being referred to courtsmartial and on the acquittal rate in such cases.

JPP Recommendation 58: The Secretary of Defense and the DAC-IPAD review 

whether Article 34 of the UCMJ and Rule for Court-Martial 406 should be 

amended to remove the requirement that the staff judge advocate’s pretrial advice 

to the convening authority (except for exculpatory information contained in that 

advice) be released to the defense upon referral of charges to court-martial. This 

review should determine whether any memo from trial counsel that is appended 

should also be shielded from disclosure to the defense. This review should also 

consider whether such a change would encourage the staff judge advocate to 

provide more fully developed and candid written advice to the convening authority 

regarding the strengths and weaknesses of the charges so that the convening 

authority can make a better-informed disposition decision.157

These JPP recommendations resulted from the Panel’s analysis of issues highlighted by JPP Subcommittee members 

who conducted military installation site visits from July through September of 2016. The JPP Subcommittee 

members heard concerns, raised by base-level practitioners at virtually all installations visited, that frequently sexual 

offense charges were referred to court-martial without sufficient evidence to obtain and sustain a conviction. The 

JPP’s analysis identified three factors that, in combination, could possibly contribute to this widespread perception: 

(1) the implementation, in December 2014, of an Article 32 preliminary hearing more limited in scope than the 

pretrial investigation historically required prior to a general court-martial; (2) the perceived pressure on general 

courts-martial convening authorities to refer sexual offense charges to court-martial, regardless of the likelihood of 

conviction; and (3) the military’s probable cause standard for referral, a threshold easily met without relying on all 

available evidence of a criminal offense.158

156 JPP Report on Fair Administration of Military Justice, supra note 154, at 7. This excerpt from Recommendation 55 does not include the portion 

of the recommendation related to defense investigators.

157 Id. at 9.

158 Id. at 47.
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CHAPTER 2. ARTICLE 32, UCMJ, PRELIMINARY HEARINGS 

AND THE COURT-MARTIAL REFERRAL PROCESS

II.THE WAY AHEAD

The DAC-IPAD Chair requested that the Policy Working Group assist the Committee in analyzing the JPP 

recommendations.159 The Policy Working Group—composed of DAC-IPAD members Ms. Kathleen Cannon 

(Chair), Brigadier General (Ret.) James Schwenk, Judge Paul Grimm, Ms. Margaret Garvin, Dr. Jenifer Markowitz, 

Ms. Jennifer Long, and Mr. A. J. Kramer—began its initial review in May 2019. 

In 2020 the Policy Working Group will continue to research and gather stakeholder perspectives regarding the 

processes for preferring charges, holding Article 32 preliminary hearings, and referring charges to courts-martial. 

On the basis of the Committee’s extensive review of penetrative sexual offense investigative and court-martial 

documents, the Policy Working Group will also incorporate into its analysis the observations discussed in Chapter 1 

regarding the investigative and accusatory phase of the military justice process. 

In addition, Committee members plan to visit military installations in order to speak with military justice 

practitioners about the military justice process, focusing on how recent statutory changes that took effect on January 

1, 2019, have affected these processes. The Committee anticipates that the site visits will, among other goals, 

provide valuable information for the Policy Working Group’s analysis. 

The remainder of this chapter provides a brief historical overview of the issues before the Policy Working Group and 

the information gathered to date regarding Article 32, UCMJ. Future reports will thoroughly analyze Articles 32, 

33, and 34, UCMJ.

III.OVERVIEW OF INFORMATION COLLECTED TO DATE BY THE DAC-IPAD REGARDING 

ARTICLE 32, UCMJ, PRELIMINARY HEARINGS

A.Background

Historically, before a criminal charge under the UCMJ could be tried by a general court-martial, an impartial 

officer had to conduct a thorough pretrial investigation into the truth and form of the charges, as well as any other 

matters necessary to make a recommendation as to the disposition of the charges.160 Pursuant to Article 32, UCMJ, 

the court-martial convening authority appointed a neutral and detached officer to conduct the investigation.161

However, the investigating officer did not have to be a judge advocate or possess any legal training, and the Rules for 

Courts-Martial did not require, though it recommended, that the officer consult with a judge advocate in the course 

of their investigation.162 The investigating officer typically called witnesses to provide in-person sworn testimony 

159 Memorandum from Ms. Martha S. Bashford, DAC-IPAD Chair, to DAC-IPAD members, Fiscal Year 2020 Guidance from the Chair for the DACIPAD’s Working Groups and the Committee (Nov. 15, 2019), available at https://dacipad.whs.mil/images/Public/10-Reading_Room/02_DACIPAD_

Mtg_Materials/DACIPAD_Meeting_Materials_20191115_Final.pdf.

160 10 U.S.C. § 832 (2012) (UCMJ, Article 32); 2012 MCM, supra note 96, R.C.M. 405(e).

161 2012 MCM, supra note 96, R.C.M. 405(d)(1) (providing that the commander who directs the investigation “shall detail a commissioned officer not the 

accuser, as investigating officer”).

162 Id.; see also 2012 MCM, supra note 96, R.C.M. 405(d)(1), Discussion (“The investigating officer may seek legal advice concerning the investigating 

officer’s responsibilities from an impartial source . . . ”) (emphasis added). Note, however, that the DAC-IPAD’s review of Article 32 proceedings 

reflected the requirement enacted in the FY14 NDAA, supra note 96, § 1702 (subsequent amendments not included), that all Article 32 preliminary 

hearing officers be judge advocates, whenever practicable. In reviewing the FY17 and FY18 cases, members found that the preliminary hearing officers 

were all judge advocates. 
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AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

and compelled the production of certain documentary evidence—such as statements to law enforcement—only 

if the witness who made the statement was unavailable to testify at the investigative hearing.163 In addition, the 

accused had the right to be present, be represented by counsel, call witnesses, and present evidence in defense and 

mitigation.164 The military rules of evidence did not apply to the investigation.165 After receiving testimony and 

other evidence, the investigating officer produced a report for the convening authority first stating their conclusion 

regarding whether reasonable grounds exist to believe that the accused committed an offense and whether the 

charges are in proper form, and then recommending an appropriate disposition of the charges.166 The Article 32 

investigating officer’s conclusions and recommendations were advisory in nature, meaning that the convening 

authority could act contrary to the stated recommendation.167

These procedures remained essentially unchanged from the time of the UCMJ’s adoption in 1950 until Congress 

amended Article 32, UCMJ, in the Fiscal Year 2014 National Defense Authorization Act (FY14 NDAA).168 The 

FY14 NDAA amendments substantially reduced the scope of the proceeding from a searching investigation to a 

probable cause hearing conducted by a preliminary hearing officer.169 These changes also eliminated the preliminary 

hearing officer’s ability to compel witness testimony, including the testimony of military members who are victims 

of a sexual offense. In lieu of live testimony from sexual offense victims and other witnesses, a prosecutor may 

submit alternate forms of evidence—such as recorded or written statements to law enforcement—for the hearing 

officer’s consideration.170 In addition, the FY14 NDAA, as amended, limits the scope of the evidence that an 

accused may present in their own defense to matters relevant to the preliminary hearing officer’s probable cause 

determination and recommendation as to disposition. These changes took effect for Article 32 hearings conducted 

on or after December 26, 2014.171

The Military Justice Act of 2016, which was passed as part of the Fiscal Year 2017 National Defense Authorization 

Act, further modified Article 32 preliminary hearings conducted on or after January 1, 2019.172 This new version 

of Article 32, UCMJ, uses the same standard and terminology—probable cause—as is required by the staff judge 

advocate’s pretrial advice to the convening authority and the standard for referral of charges to court-martial. In 

addition, it allows the parties and the victim to submit written matters to the preliminary hearing officer after the 

hearing that are relevant to the hearing officer’s recommendation as to the disposition that should be made of the 

case. These amendments call for the preliminary hearing officer to provide a more robust written analysis of the 

evidence underlying the charged offenses than previously required.173

163 2012 MCM, supra note 96, R.C.M. 405(g).

164 2012 MCM, supra note 96, R.C.M. 405(f).

165 2012 MCM, supra note 96, R.C.M. 405(i) (“The Military Rules of Evidence—other than Mil. R. Evid. 301, 302, 303, 305, 412 and [M.R.E.] Section 

V [privileges]—shall not apply in pretrial investigations under this rule.”). 

166 2012 MCM, supra note 96, R.C.M. 405(j)(2) (prescribing the contents of the investigating officer’s report, among them the substance of the testimony 

taken on both sides, including any stipulated testimony.).

167 2012 MCM, supra note 96, R.C.M. 601(d)(1) and (2).

168 FY14 NDAA, supra note 96.

169 Id. 

170 Id.

171 Id. 

172 FY17 NDAA, supra note 141, § 5203 (subsequent amendments not included).

173 Id.; see also MJRG Report, supra note 71, at 324 (providing that the MJRG’s proposed reforms to Article 32, UCMJ, were designed to require the 

preliminary hearing officer to (1) analyze, not merely conclude, whether the evidence establishes probable cause; (2) specify the evidence supporting the 

elements of each offense; and (3) discuss any additional information relevant to the convening authority’s disposition decision under Articles 30 and 34, 
47

CHAPTER 2. ARTICLE 32, UCMJ, PRELIMINARY HEARINGS 

AND THE COURT-MARTIAL REFERRAL PROCESS

During JPP military installation site visits in the summer of 2016—which took place about a year and a half after 

the Article 32 investigation was transformed into a preliminary hearing—JPP Subcommittee members heard 

repeatedly from military prosecutors and defense attorneys that the recently modified Article 32 preliminary 

hearing is no longer a meaningful process for evaluating the strength of a case.174 According to the prosecutors 

and defense counsel interviewed, frequently there is no live testimony at the hearing and the prosecutor presents 

only documentary evidence to the hearing officer, who has no authority to compel the production of witnesses 

or additional evidence. Counsel also informed JPP Subcommittee members that convening authorities routinely 

disregard the recommendations of preliminary hearing officers not to refer charges to court-martial, even when the 

preliminary hearing officer finds no probable cause for the offenses.175 Some trial practitioners who spoke to the JPP 

at a public meeting echoed their observations.176

Based on this information, the JPP issued its September 2017 Report on Panel Concerns Regarding the Fair 

Administration of Military Justice in Sexual Assault Cases, identifying concerns regarding the modified Article 32 

hearing and submitting JPP Recommendation 55 proposing further review of these issues by the Department of 

Defense and the DAC-IPAD.177

B.Information Provided to the DAC-IPAD

The DAC-IPAD submitted a request for information (RFI) to the Military Services seeking narrative responses and 

analysis in response to several questions regarding the Article 32, UCMJ, preliminary hearing; the referral process 

under Article 34, UCMJ; and the disposition guidance required by Article 33, UCMJ.178 The Military Services’ 

criminal law/military justice policy chiefs, trial defense services organization chiefs, and special victims’ counsel and 

victims’ legal counsel program managers provided their organizations’ responses to the RFI and also testified at the 

August 23, 2019, DAC-IPAD public meeting on these and other topics.179

There follows a synopsis of viewpoints and analysis from the Military Services regarding Article 32 preliminary 

hearings and the questions posed in the RFI to the various organizations—most notably, whether Article 32 

preliminary hearing officers’ determinations of no probable cause should preclude referral of such offenses to 

court-martial.

Military Justice Policy Chiefs

Service military justice policy chiefs agreed overall that Article 32 preliminary hearings still perform a useful 

function, though most granted that there is little benefit to the prosecution or defense when no witnesses testify 

UCMJ.).

174 Subcommittee of the Judicial Proceedings Panel Report on Barriers to the Fair Administration of Military Justice in Sexual Assault 

Cases 6 (May 2017), available at https://dacipad.whs.mil/images/Public/10-Reading_Room/04_Reports/01_JPP_Reports/JPP_SubcommReport_

Barriers_Final_20170512.pdf.

175 Id. at 7.

176 See generally Transcript of JPP Public Meeting (Jan. 6, 2017), available at https://jpp.whs.mil/Public/docs/05-Transcripts/20170106_Transcript_Final.pdf.

177 JPP Report on Fair Administration of Military Justice, supra note 154, at 7.

178 See RFI 11, supra note 95.

179 Id.
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AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

at the hearing.180 In their explanations, they expressed the view that the Article 32 preliminary hearing officer’s 

perspective on the merits of a case can be helpful to staff judge advocates and convening authorities in their duties 

with respect to deciding whether to refer the case to trial. 

Presenters unanimously agreed that a preliminary hearing officer’s determination of no probable cause should 

remain advisory.181 Representatives from each of the Military Services suggested that prohibiting referral of charges 

that a preliminary hearing officer found not to be supported by probable cause would, in effect, eliminate the 

staff judge advocate’s statutory obligation to determine and provide an opinion to the convening authority as to 

whether the charges are supported by probable cause. Furthermore, it would unnecessarily constrain the convening 

authority’s responsibility to determine the appropriate disposition of cases initiated under the UCMJ, a decision 

that remains integral to a commander’s ability to maintain good order and discipline.182 Finally, they opined that it 

would be inappropriate because the Article 32 preliminary hearing does not require a comprehensive review of all 

available evidence—just the evidence needed to establish probable cause.183

While some presenters cautioned against making additional large-scale changes to the UCMJ, they all stated that 

preliminary hearing officers should have greater authority to compel the production of witnesses and evidence.184

The Marine Corps representative recommended that only military judges or magistrates serve as Article 32 

preliminary hearing officers.185 Another presenter suggested that rather than changing the law or rules governing 

preliminary hearings, the Military Services should train and encourage trial counsel to present more than the bare 

minimum of evidence that they believe establishes probable cause. This approach would have the added benefit of 

encouraging trial counsel to be more transparent about their case.186

Trial Defense Services Organizations 

The chiefs of the Military Services’ trial defense services organizations told the DAC-IPAD that the 2014 changes 

to Article 32 reduced the utility of these hearings for the defense and for the convening authority. In addition, they 

opined that the preliminary hearing officer’s determination that an offense lacks probable cause should prohibit referral 

of charges to court-martial.187 They explained that if staff judge advocates and convening authorities decide to proceed 

180 See Service Criminal Law/Military Justice Division Combined Responses to RFI 11, supra note 95; see also Transcript of DAC-IPAD Public Meeting 66–

67 (Aug. 23, 2019) (testimony of Colonel Patrick Pflaum, U.S. Army, Chief, Criminal Law Division); 72 (testimony of Captain Vasilios Tasikas, U.S. 

Coast Guard, Chief, Office of Military Justice), available at https://dacipad.whs.mil/images/Public/05-Transcripts/20190823_DACIPAD_Transcript_

Final.pdf.

181 Transcript of DAC-IPAD Public Meeting 81–82 (Aug. 23, 2019) (testimony of Lieutenant Colonel King); 82–83 (testimony of Captain Monahan); 

83–84 (testimony of Colonel Pflaum); see also Service Criminal Law/Military Justice Division Combined Responses to RFI 11, supra note 95.

182 See Service Criminal Law/Military Justice Division Combined Responses to RFI 11, supra note 95; see also Transcript of DAC-IPAD Public Meeting 81 

(Aug. 23, 2019) (testimony of Lieutenant Colonel King); 84 (testimony of Colonel Pflaum).

183 See Service Criminal Law/Military Justice Division Combined Responses to RFI 11, supra note 95.

184 Transcript of DAC-IPAD Public Meeting 89, 101 (Aug. 23, 2019) (testimony of Colonel Julie Pitvorec, U.S. Air Force, Chief, Air Force Government 

Trial and Appellate Counsel Division); 96 (testimony of Colonel Pflaum); 98 (testimony of Captain Robert Monahan, U.S. Navy, Deputy Assistant 

Judge Advocate General (Criminal Law) and Director, Office of the Judge Advocate General’s Criminal Law Policy Division).

185 U.S. Marine Corps Criminal Law/Military Justice Division Response to RFI 11, supra note 95; Transcript of DAC-IPAD Public Meeting 91, 99 (Aug. 23, 

2019) (testimony of Lieutenant Colonel King).

186 Transcript of DAC-IPAD Public Meeting 97 (Aug. 23, 2019) (testimony of Captain Monahan); 100 (testimony of Colonel Pitvorec).

187 See Service Trial Defense Services Organizations Combined Responses to RFI 11, supra note 95; Transcript of DAC-IPAD Public Meeting 251 (Aug. 

23, 2019) (testimony of Colonel Valerie Danyluk, U.S. Marine Corps, Chief Defense Counsel); 254 (testimony of Commander Stuart Kirkby, U.S. 

Navy, Director, Defense Counsel Assistance Program); 259–60 (testimony of Colonel Roseanne Bennett, U.S. Army, Chief, Trial Defense Service); 264 
49

CHAPTER 2. ARTICLE 32, UCMJ, PRELIMINARY HEARINGS 

AND THE COURT-MARTIAL REFERRAL PROCESS

with the case when a preliminary hearing officer determines that one or more charges lack probable cause, then the 

Article 32 preliminary hearings provide an accused with no meaningful protection against baseless charges.188

The defense presenters agreed that if the Article 32 preliminary hearing officer’s determination of no probable cause 

bound the convening authority, the government would put more thought, care, and preparation into the Article 32 

hearing. They elaborated by noting that the subsequent hearing would be a more meaningful process, likely resulting 

in fewer cases being referred to trial that lack sufficient evidence to obtain a conviction and thus resulting in fewer 

acquittals.189 They also believed that the government should be required to call witnesses to establish probable cause, 

rather than rely solely on documentary evidence. Finally, the defense presenters concurred with the military justice chiefs 

that the preliminary hearing officer should have the authority to compel the production of witnesses and evidence.190

Special Victims’ Counsel and Victims’ Legal Counsel Program Managers

The special victims’ counsel and victims’ legal counsel program managers all agreed that the Article 32 preliminary 

hearing officer’s determination that a specification under a charge lacks probable cause should not prohibit referral 

of the specification(s) to trial. Several of the program managers stated that they did not think all judge advocates 

serving as preliminary hearing officers possessed the necessary background, training, and experience to make a 

proper determination of “no probable cause.”191

C.The DAC-IPAD’s Review of Article 32 Preliminary Hearing Officers’ Reports

To aid the Committee’s review and analysis of Article 32 preliminary hearings, the DAC-IPAD staff compiled 

information from the DAC-IPAD court-martial document database. The review included the charge sheets, Article 

32 preliminary hearing officer reports, Article 34 pretrial advice, and results of trial, as applicable, for all cases 

completed192 in fiscal years 2017 and 2018 in which (1) the most serious offense charged was a penetrative sexual 

offense; (2) an Article 32 preliminary hearing was held; and (3) the Article 32 preliminary hearing officer found that 

probable cause did not exist for one or more distinct penetrative sexual offenses—in total, 132 cases.193

The Committee focused its inquiry on issues raised by the Judicial Proceedings Panel in its recommendations, by the 

Military Services’ written responses to the DAC-IPAD requests for information, and by public meeting discussions 

with military justice experts. The specific information sought included

• The grade of the judge advocates serving as preliminary hearing officers within each Military Service;

• How often sexual offense victims testified at Article 32 preliminary hearings;

(testimony of Colonel Christopher Morgan, U.S. Air Force, Chief, Trial Defense Division).

188 See Service Trial Defense Service Combined Responses to RFI 11, supra note 95.

189 Id.; see also Transcript of DAC-IPAD Public Meeting (Aug. 23, 2019) 277 (testimony of Colonel Bennett); 283 (testimony of Commander Kirkby).

190 Transcript of DAC-IPAD Public Meeting 271–72 (Aug. 23, 2019), (testimony of Commander Kirkby); 276–79 (testimony of Colonel Morgan).

191 See Service Special Victims’ Counsel / Victims’ Legal Counsel Program Managers Combined Responses to RFI 11, supra note 95.

192 A “completed” case for purposes of this analysis is any case tried to verdict, dismissed without further action, or dismissed and then resolved by 

nonjudicial or administrative proceedings.

193 The FY19 NDAA amendments to Article 32 went into effect for Article 32 preliminary hearings conducted on or after January 1, 2019, and so were not 

in effect for the Article 32 preliminary hearings in FY17 and FY18 cases reviewed as part of this project.
50

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

• How often preliminary hearing officers determined that probable cause did not exist to believe a penetrative 

sexual offense had occurred; and 

• Whether those charges for which the evidence did not establish probable cause were referred to a courtmartial. In addition, the Committee sought to ascertain the ultimate disposition of those offenses. 

The following observations and data are drawn from the Committee’s review of the 132 cases completed in FY17 

and FY18 in which an Article 32 preliminary hearing officer determined that one or more penetrative sexual offense 

specifications lacked probable cause to believe that a penetrative sexual offense occurred. The Committee will discuss in 

future reports how these data and observations inform the Committee’s analysis of Articles 32, 33, and 34, UCMJ. 

Preliminary hearing officers’ “no probable cause” determinations for penetrative sexual offenses for cases completed in FY17 

and FY18

• On average, 19% of the penetrative sexual offense cases in which an Article 32 preliminary hearing was held 

included a determination that one or more charged penetrative sexual offenses lacked probable cause. 

• Sexual offense victims testified in an average of 5% of Article 32 preliminary hearings involving penetrative 

sexual offenses. 

TABLE 2.1. FISCAL YEARS 2017 AND 2018 ARTICLE 32, UCMJ, PRELIMINARY HEARINGS INVOLVING PENETRATIVE 

SEXUAL OFFENSES THAT RESULTED IN A “NO PROBABLE CAUSE” DETERMINATION FOR ONE OR MORE 

PENETRATIVE SEXUAL OFFENSES

2017 2018

Preliminary 

hearings held*

Determinations 

of no probable 

cause

Preliminary 

hearings held**

Determinations 

of no probable 

cause

Army 146 27 (19%) 126 13 (10%)

Marine Corps 36 7 (19%) 27 7 (26%)

Navy 46 7 (15%) 46 10 (22%)

Air Force 133 37 (28%) 116 20 (17%)

Coast Guard 7 2 (29%) 3 2 (67%)

Total 368*** 80 (22%) 318*** 52 (16%)

Victim Testified 27 7

* In an additional 98 cases in FY17 (21% of all 466 preferred penetrative sexual offense cases), the accused waived the Article 32 preliminary hearing.

** In an additional 85 cases in FY18 (21% of all 403 preferred penetrative sexual offense cases), the accused waived the Article 32 preliminary hearing.

*** In FY17 a total of 425 preliminary hearings were held involving either an adult-victim penetrative or contact sexual offense, and in FY18 a total of 373 

preliminary hearings involved either an adult-victim penetrative or contact sexual offense.
51

CHAPTER 2. ARTICLE 32, UCMJ, PRELIMINARY HEARINGS 

AND THE COURT-MARTIAL REFERRAL PROCESS

Grade of preliminary hearing officers 

• Most of the judge advocates serving as Article 32 preliminary hearing officers held the grade of O-4 or O-5.

• The preliminary hearing officer’s military grade did not appear to influence whether convening authorities 

dismissed or referred to trial the penetrative sexual offense specifications at issue. 

FIGURE 2.1. FISCAL YEARS 2017 AND 2018 “NO PROBABLE CAUSE” DETERMINATIONS ACCORDING TO THE 

GRADE OF THE PRELIMINARY HEARING OFFICER AND THE CONVENING AUTHORITY’S DECISION TO 

EITHER DISMISS OR REFER THE PENETRATIVE SEXUAL OFFENSE

0

5

10

15

20

25

30

Marine

Corps

Army

Number of cases involving a “no probable cause” 

determination for the penetrative sexual offense(s)

O-3 O-4 O-5 O-4 O-5 Grade not

listed

Air Force Coast

Guard

O-4

Navy

O-3 O-4 O-5 O-6 O-3 O-4 O-5 O-6

Cases in which the convening authority 

referred the penetrative sexual offense

Cases in which the convening authority 

dismissed the penetrative sexual offense

2

6 6

28 28

18

10

9

4

1

5 5

4 4

1

3 4

9

19

4 4 3

5

1

1

3 3

1

14

22

9

1

6

4

2

2

1

4

1

1

2

4
52

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

Disposition of penetrative sexual offenses following a finding of “no probable cause” by the preliminary hearing officer

• On average, convening authorities took action consistent with the Article 32 preliminary hearing officer’s 

determination(s) of no probable cause—i.e., dismissed the charges lacking probable cause—in a majority 

(66%) of the Navy, Marine Corps, Air Force, and Coast Guard cases.194

• In the Army, on average, convening authorities took action consistent with the Article 32 preliminary 

hearing officer’s determination(s) of no probable cause in a minority (33%) of cases.

• In FY17, 32 cases were referred to court-martial after an Article 32 preliminary hearing officer determined 

that there was no probable cause to believe a penetrative sexual offense occurred. Fifteen of the 32 referred 

cases (47%) resulted in dismissal of the penetrative sexual offense(s).195 In 17 of the 32 cases (53%), the 

penetrative sexual offenses were tried by court-martial. Of those penetrative sexual offense cases that were 

tried by court-martial, more than three-fourths (76%) resulted in verdicts of not guilty. Notably, one of the 

guilty verdicts was overturned on appeal due to lack of evidence. 

194 It was the special court-martial convening authority—as opposed to the general court-martial convening authority—who dismissed the relevant charges 

and specifications in the majority of cases. The special court-martial convening authority is typically a commander in the grade of O-6, who receives 

preferred charges and has the authority to direct an Article 32 preliminary hearing before making a disposition decision or forwarding the charges, 

along with their disposition recommendation, to a higher command echelon. The special court-martial convening authority reviews the report of the 

preliminary hearing officer and consults with their judge advocate before taking action. See generally 10 U.S.C. § 823(a)(5) (Article 23(a)(5), UCMJ).

195 Of the penetrative sexual offenses dismissed following referral to court-martial, some were dismissed according to the provisions of a pretrial agreement, 

as part of an alternate resolution such as an administrative discharge or resignation in lieu of court-martial, or for other reasons. 
53

CHAPTER 2. ARTICLE 32, UCMJ, PRELIMINARY HEARINGS 

AND THE COURT-MARTIAL REFERRAL PROCESS

FIGURE 2.2. FISCAL YEAR 2017 ARTICLE 32, UCMJ, PRELIMINARY HEARING OFFICER “NO PROBABLE CAUSE” 

DETERMINATIONS AND THE ULTIMATE DISPOSITION OF THE PENETRATIVE SEXUAL OFFENSE*

Guilty

2 (7%)

Not guilty

7 (26%)

GCMCA

2 (7%)

Dismissed 

per PTA

1 (4%)

Discharged

in lieu of trial

3 (11%)

Dismissed after

referral

3 (11%)

SPCMCA

9 (33%)

# Cases GCMCA 

or SPCMCA

dismissed “no probably 

cause” offenses

11 (41%)

2

(7%)

7

(26%)

1 (4%)

3

(11%)

3

(11%)

# Cases GCMCA or 

SPCMCA dismissed 

“no probably cause” offenses

11 (41%)

2

(7%)

11

(40%)

Army

Guilty

2 (7%)

Not guilty

7 (26%)

GCMCA

2 (7%)

Dismissed 

per PTA

1 (4%)

Discharged

in lieu of trial

3 (11%)

Dismissed after

referral

3 (11%)

SPCMCA

9 (33%)

# Cases GCMCA 

or SPCMCA

dismissed “no probably cause” offenses

11 (41%)

2

(7%)

1

(14%)

2

(29%)

7

(26%)

1 (4%)

3

(11%)

3

(11%)

# Cases GCMCA or 

SPCMCA dismissed 

“no probably cause” offenses

11 (41%)

2

(7%)

2

(7%)

4

(57%)

9

(33%)

Marine Corps

Not guilty

7 (26%)

GCMCA

2 (7%)

Dismissed 

per PTA

1 (4%)

Discharged

in lieu of trial

3 (11%)

Dismissed after

referral

3 (11%)

1 

(3%)

1 

(3%)

1 

(3%)

SPCMCA

9 (33%)

# Cases GCMCA 

or SPCMCA

dismissed “no probably cause” offenses

11 (41%)

2

(5%)

4

(11%)

# Cases GCMCA or 

SPCMCA dismissed 

28

(75%)

Air Force

Guilty

2 (7%)

Not guilty

7 (26%)

GCMCA

2 (7%)

Dismissed 

per PTA

1 (4%)

Discharged

in lieu of trial

3 (11%)

Dismissed after

referral

3 (11%)

SPCMCA

9 (33%)

# Cases GCMCA 

or SPCMCA

dismissed “no proba

cause” offenses

11 (41%)

1

(14%)

1

(14%)

# Cases 

SPCMC

“no prob

of

11 

5

(72%)

Navy

Not guilty

7 (26%)

GCMCA

2 (7%)

Dismissed 

per PTA

1 (4%)

Discharged

in lieu of trial

3 (11%)

Dismissed after

referral

3 (11%)

SPCMCA

9 (33%)

# Cases GCMCA 

or SPCMCA

dismissed “no probably cause” offenses

11 (41%)

# Cases GCMCA or 

SPCMCA dismissed 

1

(50%)

1

(50%)

Coast Guard

Not guilty

7 (26%)

GCMCA

2 (7%)

Dismissed 

per PTA

1 (4%)

Discharged

in lieu of trial

3 (11%)

Dismissed after

referral

3 (11%)

SPCMCA

9 (33%)

# Cases GCMCA 

or SPCMCA

dismissed “no probab

cause” offenses

11 (41%)

48

(60%)

13

(16%)

5

(6%)

7

(9%)

3

(4%)

4

(5%)

Guilty

Not guilty

Dismissed without referral

Dismissed as part of a 

pre-trial agreement

Discharged in lieu of trial

Dismissed after referral

Guilty

Not guilty

Dismissed without referral

Dismissed as part of a 

pre-trial agreement

Discharged in lieu of trial

Dismissed after referral

FY17 Total

* Owing to rounding, percentages in this figure may not total 100.
54

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

• In FY18, 18 cases were referred to court-martial after an Article 32 preliminary hearing officer determined 

that there was no probable cause to believe a penetrative sex offense occurred. Seven of the 18 referred cases 

(39%) resulted in dismissal of the penetrative sexual offense(s). In 11 of the 18 cases (61%), the penetrative 

sexual offenses were tried by court-martial. Of those penetrative sexual offense cases that were tried by 

court-martial, nearly three-fourths (73%) resulted in verdicts of not guilty. 

FIGURE 2.3. FISCAL YEAR 2018 ARTICLE 32, UCMJ, PRELIMINARY HEARING OFFICER “NO PROBABLE CAUSE” 

DETERMINATIONS AND THE ULTIMATE DISPOSITION OF THE PENETRATIVE SEXUAL OFFENSE*

Guilty

Not guilty

Dismissed by the General Court-Mart

Convening Authority

Dismissed by the Special Court-Marti

Convening Authority

Dismissed as part of a pre-trial agree

Discharged in lieu of trial

Dismissed after referral

Guilty

2 (7%)

Not guilty

7 (26%)

GCMCA

2 (7%)

Dismissed 

per PTA

1 (4%)

Discharged

in lieu of trial

3 (11%)

Dismissed after

referral

3 (11%)

SPCMCA

9 (33%)

# Cases GCMCA 

or SPCMCA

dismissed “no probably cause” offenses

11 (41%)

# Cases GCMCA or 

SPCMCA dismissed 

“no probably cause” 

offenses

11 (41%)

1

(14%)

1

(14%)

1

(14%)

4

(57%)

Marine Corps

Guilty

2 (7%)

Not guilty

7 (26%)

GCMCA

2 (7%)

Dismissed 

per PTA

1 (4%)

Discharged

in lieu of trial

3 (11%)

Dismissed after

referral

3 (11%)

SPCMCA

9 (33%)

# Cases GCMCA 

or SPCMCA

dismissed “no proba

cause” offenses

11 (41%)

# Cases 

SPCMC

“no prob

of

11 

9

(90%)

1

(10%)

Navy

GCMCA

2 (7%)

Dismissed after

referral

3 (11%)

# Cases GCMCA 

2

(100%)

Coast Guard

Guilty

2 (7%)

Not guilty

7 (26%)

GCMCA

2 (7%)

Dismissed 

per PTA

1 (4%)

Discharged

in lieu of trial

3 (11%)

Dismissed after

referral

3 (11%)

SPCMCA

9 (33%)

# Cases GCMCA 

or SPCMCA

dismissed “no probably cause” offenses

11 (41%)

# Cases GCMCA or 

SPCMCA dismissed 

“no probably cause” 

offenses

11 (41%)

2

(15%)

2

(15%)

5

(38%)

1

(8%)

3

(23%)

Army

Air Force

GCMCA

2 (7%)

Dismissed after

referral

3 (11%)

# Cases GCMCA 

or SPCMCA

17

(85%)

1

(5%) 2

(10%)

GCMCA

2 (7%)

Dismissed after

referral

3 (11%)

# Cases GCMCA 

or SPCMCA

3

(6%)

8

(15%)

4

(8%)

1

(2%) 2

(4%)

34

(66%)

FY18 Total

Guilty

Not guilty

Dismissed without referral

Dismissed as part of a 

pre-trial agreement

Discharged in lieu of trial

Dismissed after referral

Guilty

Not guilty

Dismissed without referral

Dismissed as part of a 

pre-trial agreement

Discharged in lieu of trial

Dismissed after referral

* Owing to rounding, percentages in this figure may not total 100.
55

CHAPTER 2. ARTICLE 32, UCMJ, PRELIMINARY HEARINGS 

AND THE COURT-MARTIAL REFERRAL PROCESS

IV.OVERVIEW OF INFORMATION COLLECTED TO DATE BY THE DAC-IPAD REGARDING 

THE REFERRAL PROCESS

A.Background

In the Military Justice Act of 2016, Congress amended Article 33, UCMJ, to direct the Secretary of Defense to 

issue guidance that commanders, judge advocates, and convening authorities should consider when deciding an 

appropriate disposition for an offense.196 In the 2019 edition of the Manual for Courts-Martial, the Secretary of 

Defense published Appendix 2.1, which contains the non-binding disposition guidance.197

Article 34(a), UCMJ, provides that the convening authority must obtain the advice of their staff judge advocate 

prior to referring charges to a general court-martial.198 The convening authority is prohibited from referring a 

specification to general court-martial unless the staff judge advocate advises them in writing that (1) the specification 

alleges an offense under the UCMJ; (2) there is probable cause to believe that the accused committed the offense; 

and (3) there is jurisdiction over the accused and the offense. The pretrial advice must also contain the staff judge 

advocate’s recommended disposition for the offense(s).199 Beginning January 1, 2019, the staff judge advocate and 

convening authority should consider the non-binding disposition guidance promulgated under Article 33, UCMJ, 

when making recommendations or decisions regarding the disposition of charges.200 If the convening authority 

refers the charges to a general court-martial, the written pretrial advice must be provided to the defense.201

B.Information Provided to the DAC-IPAD

The DAC-IPAD requested from the Military Services a thorough written analysis of issues related to Article 32, 

UCMJ, preliminary hearings; the pretrial advice required by Article 34, UCMJ; and the disposition guidance 

promulgated pursuant to Article 33, UCMJ.202 The Military Services’ criminal law/military justice policy chiefs and 

the trial defense services organization chiefs provided responses to the RFI and also spoke with the Committee at 

the August 23, 2019, DAC-IPAD public meeting on these and other topics.203

There follows a synopsis of positions and opinions related to the court-martial referral process outlined in Articles 

33 and 34, UCMJ.

1. Military Justice Policy Chiefs

Most of the presenters agreed that the strength of the evidence is an important factor in the referral decision, as is 

the victim’s willingness to participate in the court-martial process.204 The common approach in the Air Force is to 

196 10 U.S.C. § 833 (2019) (Art. 33, UCMJ).

197 2019 MCM, supra note 90, Appendix 2.1, Non-Binding Disposition Guidance.

198 10 U.S.C. § 834(a) (2019) (Art. 34(a), UCMJ).

199 Id.

200 10 U.S.C. § 833 (2019) (Art. 33, UCMJ); 2019 MCM, supra note 90, Appendix 2.1, Non-Binding Disposition Guidance.

201 2019 MCM, supra note 90, R.C.M. 701.

202 See Service responses to RFI 11, supra note 95.

203 Id.

204 Id. at para. B, Questions 1, 4; see also Transcript of DAC-IPAD Public Meeting 107 (Aug. 23, 2019) (testimony of Captain Tasikas); 108 (testimony of 
56

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

refer sexual offense charges to court-martial so long as the staff judge advocate finds that there is probable cause the 

accused committed the offense and the victim is willing to participate in the trial by court-martial.205 Most agreed 

that the weight given to factors such as the victim’s availability and willingness to participate in the trial and the 

likelihood of conviction varies with individual cases. The Air Force military justice policy chief explained that in 

the Air Force, judge advocates and convening authorities do not consider the likelihood of conviction as a factor at 

either preferral or referral.206

2. Trial Defense Services Organizations 

The Military Services’ trial defense services organization chiefs agreed that too often weak cases are referred to 

court-martial because the victim wants the case to be prosecuted or because of systemic or societal pressure on 

convening authorities to refer cases.207 They argued that the victim’s preference should not outweigh the strength of 

the evidence, because the accused is facing a potential loss of liberty and the victim is not.208 They also agreed that 

the staff judge advocate should be required to explain in the Article 34, UCMJ, pretrial advice why they determined 

that there was probable cause for an offense when the Article 32 preliminary hearing officer did not.209

V.CONCLUSION

In 2020 the Policy Working Group will continue analyzing issues related to Article 32 preliminary hearings and 

the court-martial referral process. The members will begin with a thorough examination of Article 32, which will 

include a comparison with federal pretrial processes, and a review of the purposes of the Article 32 preliminary 

hearing and the mechanisms needed to ensure that these purposes are effectively realized. The Policy Working 

Group will also examine elements of the court-martial referral process—such as disposition guidance for judge 

advocates and convening authorities and the staff judge advocate’s pretrial advice—looking at whether convening 

authorities are receiving the information they need to make effective disposition decisions and whether disposition 

guidance, promulgated under Article 33, UCMJ, is an effective tool for judge advocates and convening authorities.

Lieutenant Colonel King); 109–10 (testimony of Captain Monahan); 111–12 (testimony of Colonel Pflaum).

205 See Air Force Military Justice Division Chief Response to RFI 11, para. B, Question 1, supra note 95; see also Transcript of DAC-IPAD Public Meeting 

106 (Aug. 23, 2019) (testimony of Colonel Pitvorec).

206 See Service Criminal Law/Military Justice Division Combined Responses to RFI 11, para. B, Questions 1, 4, supra note 95; see also Transcript of DACIPAD Public Meeting 106 (Aug. 23, 2019) (testimony of Colonel Pitvorec); 107 (testimony of Captain Tasikas); 108 (testimony of Lieutenant Colonel 

King); 112 (testimony of Colonel Pflaum); 123 (testimony of Colonel Pitvorec).

207 See Service Trial Defense Services Combined Responses to RFI 11, para. B, Question 2b, supra note 95; see also Transcript of DAC-IPAD Public Meeting 

312 (Aug. 23, 2019) (testimony of Commander Kirkby); 313–16 (testimony of Colonel Bennett); 317 (testimony of Colonel Morgan).

208 Transcript of DAC-IPAD Public Meeting 242–43 (Aug. 23, 2019) (testimony of Colonel Bennett); 243–44 (testimony of Commander Kirkby); 245 

(testimony of Commander King); 245–46 (testimony of Colonel Morgan).

209 See Service Trial Defense Services Combined Responses to RFI 11, para. A, Question 1b, supra note 95; see also Transcript of DAC-IPAD Public Meeting 

287 (Aug. 23, 2019) (testimony of Colonel Danyluk).
57

CHAPTER 3. SEXUAL OFFENSE COURT-MARTIAL CASE 

ADJUDICATION TRENDS AND ANALYSIS

CHAPTER 3. SEXUAL OFFENSE COURT-MARTIAL CASE 

ADJUDICATION TRENDS AND ANALYSIS

I. INTRODUCTION

This chapter provides a brief overview of the Committee’s annual collection and analysis of military case 

adjudication statistical data for adult-victim sexual offense cases in which charges were preferred for penetrative or 

contact sexual offense offenses and in which final action on the case is complete.210 The Committee published a 

comprehensive case adjudication report and detailed appendix in November 2019 containing data from fiscal years 

2015 through 2018.211 Since publication of the report, the Committee has collected and recorded additional case 

documents, including charge sheets, Article 32 reports, and Results of Trial forms, resulting in updated totals of 576 

cases completed in fiscal year 2018, 698 cases completed in fiscal year 2017, 770 cases completed in fiscal year 2016, 

and 781 cases completed in fiscal year 2015.This chapter briefly examines penetrative and contact sexual offense 

dispositions by Military Service in fiscal year 2018.

II. METHODOLOGY OF THE DATA WORKING GROUP

In September 2018, the DAC-IPAD staff, at the direction of Chair Martha S. Bashford, requested that the Military 

Services provide documents, utilizing their individual case tracking databases, for cases involving a preferred charge 

of a sexual offense completed in fiscal year 2018.212 The staff screened the case records provided by the Services to 

identify duplicate cases, cases with incomplete documentation, cases of sexual offenses that did not involve an adult 

victim, cases that did not involve a sex offense, and cases whose reported year of case completion was not correct. 

The resulting 576 cases from fiscal year 2018 were then added to the DAC-IPAD’s electronic database.213

The DAC-IPAD database includes cases encompassing fiscal years 2012 through 2018, all of which involve at least 

one charge of a penetrative sexual offense (i.e., rape, aggravated sexual assault, sexual assault, forcible sodomy, and 

attempts to commit these offenses) or a contact sexual offense (i.e., aggravated sexual contact, abusive sexual contact, 

wrongful sexual contact, and attempts to commit these offenses). The statistical data for fiscal years 2012 through 

2014 were collected by the Judicial Proceedings Panel (JPP), which relied on the Department of Defense (DoD) 

Sexual Assault Prevention Office (SAPRO) annual reports to Congress to identify the total number of sexual offense 

cases adjudicated. Because DoD SAPRO does not count or collect information on the legal outcome of cases in 

which the victim is the spouse or an intimate partner, the data for those years are not complete and are therefore not 

included in the historical discussion that follows.

210 For purposes of the DAC-IPAD’s case review and data collection, the term “sexual offense” includes the following offenses under the Uniform Code of 

Military Justice: rape (Article 120(a)), sexual assault (Article 120(b)), aggravated sexual contact (Article 120(c)), abusive sexual contact (Article 120(d)), 

forcible sodomy (Article 125), and attempts to commit these offenses (Article 80). 

211 See DAC-IPAD 2019 Data Report, supra note 21.

212 A “completed” case for purposes of this analysis is any case tried to verdict, dismissed without further action, or dismissed and then resolved by 

nonjudicial or administrative proceedings. 

213 All data reported in this chapter are as reflected in the DAC-IPAD database as of December 4, 2019.
58

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

III. MILITARY JUSTICE INFORMATION FOR SEXUAL OFFENSE CASES COLLECTED BY 

THE DAC-IPAD 

The DAC-IPAD relies on the Services to report cases meeting the criteria specified. The Committee therefore does 

not assert that it has the complete universe of cases throughout the Armed Forces in which a sexual offense charge 

was filed. The data were also limited to cases in which a complete set of disposition records could be identified and 

retrieved for analysis. In the following tables and charts, percentages may not total 100, owing to rounding errors or 

missing data. 

The DAC-IPAD case adjudication database includes cases encompassing fiscal years 2012 through 2018, as 

described above. Because the DAC-IPAD staff is continuously identifying additional cases and receiving case 

documentation from the Military Services, it should be noted that since sexual offense case adjudication data was 

last reported in the November 2019 DAC-IPAD Court-Martial Adjudication Data Report, the total number of 

cases in which charges were preferred in fiscal year 2015 has increased by 1 case; in fiscal year 2016, by 1 case; in 

fiscal year 2017, by 7 cases; and in fiscal year 2018, by 2 cases.214

FIGURE 3.1. CASES DOCUMENTED BY THE DAC-IPAD

301

590

738

781 770

698

576

FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017 FY 2018

214 See DAC-IPAD 2019 Data Report, supra note 21. 
59

CHAPTER 3. SEXUAL OFFENSE COURT-MARTIAL CASE 

ADJUDICATION TRENDS AND ANALYSIS

Of the 576 cases received by the DAC-IPAD for FY18, the Army generated the most cases (40%), followed by the 

Air Force (26%), Navy (16%), Marine Corps (14%), and Coast Guard (3%). 

FIGURE 3.2. MILITARY SERVICE OF THE ACCUSED

FY2015 FY2016 FY2017 FY2018 Percentage

of Active Duty

Population

FY 2018

35.0%

41.7% 40.4%

36.2%

44.5%

13.6%

14.3%

2.6%

12.2%

16.0%

13.5%

24.3%

3.1%

18.8% 16.4%

2.9%

16.4%

15.6%

24.5% 26.3% 24.0%

28.5%

3.0%

22.3%

4.1%

Coast Guard

Air Force

Navy

Marine Corps

Army
60

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

2

Table 3.1. Penetrative Sexual Offense (PSO) Dispositions by Service of the Accused for Cases Completed in Fiscal Year 2018* ** ***

Judicial Disposition of Penetrative Sexual Offense (PSO) Allegations Alternate Disposition for PSO Allegations No Action for PSO Allegations

Cases with 

Preferred 

PSO(s)

Cases with 

Referred 

PSO(s)**

Guilty Plea 

to PSO(s)

Contested Courts-Martial

Discharge or 

Resignation 

in Lieu of 

Court-Martial

Article 15 

Nonjudicial 

Punishment 

(NJP) for 

PSO(s)

Other 

Admin. 

Action 

for PSO 

Offense(s)

Action Taken 

for NonPSO(s) Only 

(CM, NJP, 

Admin. Action, 

discharge)

No 

Action 

for Any 

Offense

Convicted 

of PSO(s)

Convicted 

of Contact 

Sexual 

Offense(s)

Convicted 

of Non-Sex 

Offense(s)

Acquitted 

of All 

Offenses

Army 183 132 17 29 5 42 39 28 0 0 1 22

Marine Corps 50 36 9 6 0 13 8 0 0 0 8 6

Navy 67 42 5 6 1 15 15 4 0 0 8 13

Air Force 128 68 0 16 1 6 45 23 0 0 4 33

Coast Guard 5 1 0 0 0 1 0 0 0 0 1 3

Total 433 279 31 57 7 77 107 55 0 0 22 77

Table 3.2. Penetrative Sexual Offense (PSO) Conviction Rates by Service of the Accused for Cases Completed in Fiscal Year 2018*

Conviction Rates

Attrition 

Rate from 

Preferral to 

Referral for 

PSO(s)

Percentage 

of Referred 

Cases with 

Guilty Plea to 

PSO(s)

Percentage of 

Preferred Cases 

with Action 

Taken for 

Non-PSO(s) Only

Percentage of 

Preferred Cases 

with Dismissal/ 

No Action Taken 

for Any Offense

Conviction 

Rate for 

PSO(s) in 

Cases with 

Charges 

Preferred**

Conviction 

Rate for 

PSO(s) in 

Cases with 

Charges 

Referred**

Acquittal 

Rate for All 

Offenses in 

Cases with 

PSO(s) 

Referred

Contested Courts-Martial

Conviction 

Rate for 

PSO(s)

Conviction 

Rate for 

NonPSO(s)***

Conviction 

Rate 

for Any 

Offense

Army 25.1% 34.8% 29.5% 25.2% 40.9% 66.1% 27.9% 12.9% 0.5% 12.0%

Marine Corps 30.0% 41.7% 22.2% 22.2% 48.1% 70.4% 28.0% 25.0% 16.0% 12.0%

Navy 16.4% 26.2% 35.7% 16.2% 43.2% 59.5% 37.3% 11.9% 11.9% 19.4%

Air Force 12.5% 23.5% 66.2% 23.5% 10.3% 33.8% 46.9% 0.0% 3.1% 25.8%

Coast Guard 0.0% 0.0% 0.0% 0.0% 100.0% 100.0% 80.0% 0.0% 20.0% 60.0%Total 20.3% 31.5% 38.4% 23.0% 33.9% 56.9% 35.6% 11.1% 5.1% 17.8%

* A completed case is a case with a preferred penetrative sexual offense that is tried to verdict, dismissed without further action, or resolved by nonjudicial or administrative proceedings during the fiscal 

year being reported.

** Includes only cases in which the accused either contested or pled guilty to the PSO.*** Includes conviction for contact sexual assault and/or non-sex offense(s).

2

POLICY WORKING GROUP UPDATE

Table 3.1. Penetrative Sexual Offense (PSO) Dispositions by Service of the Accused for Cases Completed in Fiscal Year 2018* ** ***

Judicial Disposition of Penetrative Sexual Offense (PSO) Allegations Alternate Disposition for PSO Allegations No Action for PSO Allegations

Cases with 

Preferred 

PSO(s)

Cases with 

Referred 

PSO(s)**

Guilty Plea 

to PSO(s)

Contested Courts-Martial

Discharge or 

Resignation 

in Lieu of 

Court-Martial

Article 15 

Nonjudicial 

Punishment 

(NJP) for 

PSO(s)

Other 

Admin. 

Action 

for PSO 

Offense(s)

Action Taken 

for NonPSO(s) Only 

(CM, NJP, 

Admin. Action, 

discharge)

No 

Action 

for Any 

Offense

Convicted 

of PSO(s)

Convicted 

of Contact 

Sexual 

Offense(s)

Convicted 

of Non-Sex 

Offense(s)

Acquitted 

of All 

Offenses

Army 183 132 17 29 5 42 39 28 0 0 1 22

Marine Corps 50 36 9 6 0 13 8 0 0 0 8 6

Navy 67 42 5 6 1 15 15 4 0 0 8 13

Air Force 128 68 0 16 1 6 45 23 0 0 4 33

Coast Guard 5 1 0 0 0 1 0 0 0 0 1 3

Total 433 279 31 57 7 77 107 55 0 0 22 77

Table 3.2. Penetrative Sexual Offense (PSO) Conviction Rates by Service of the Accused for Cases Completed in Fiscal Year 2018*

Conviction Rates

Attrition 

Rate from 

Preferral to 

Referral for 

PSO(s)

Percentage 

of Referred 

Cases with 

Guilty Plea to 

PSO(s)

Percentage of 

Preferred Cases 

with Action 

Taken for 

Non-PSO(s) Only

Percentage of 

Preferred Cases 

with Dismissal/ 

No Action Taken 

for Any Offense

Conviction 

Rate for 

PSO(s) in 

Cases with 

Charges 

Preferred**

Conviction 

Rate for 

PSO(s) in 

Cases with 

Charges 

Referred**

Acquittal 

Rate for All 

Offenses in 

Cases with 

PSO(s) 

Referred

Contested Courts-Martial

Conviction 

Rate for 

PSO(s)

Conviction 

Rate for 

NonPSO(s)***

Conviction 

Rate 

for Any 

Offense

Army 25.1% 34.8% 29.5% 25.2% 40.9% 66.1% 27.9% 12.9% 0.5% 12.0%

Marine Corps 30.0% 41.7% 22.2% 22.2% 48.1% 70.4% 28.0% 25.0% 16.0% 12.0%

Navy 16.4% 26.2% 35.7% 16.2% 43.2% 59.5% 37.3% 11.9% 11.9% 19.4%

Air Force 12.5% 23.5% 66.2% 23.5% 10.3% 33.8% 46.9% 0.0% 3.1% 25.8%

Coast Guard 0.0% 0.0% 0.0% 0.0% 100.0% 100.0% 80.0% 0.0% 20.0% 60.0%Total 20.3% 31.5% 38.4% 23.0% 33.9% 56.9% 35.6% 11.1% 5.1% 17.8%

* A completed case is a case with a preferred penetrative sexual offense that is tried to verdict, dismissed without further action, or resolved by nonjudicial or administrative proceedings during the fiscal 

year being reported.

** Includes only cases in which the accused either contested or pled guilty to the PSO.*** Includes conviction for contact sexual assault and/or non-sex offense(s).

The following tables provide an overview of the cases involving penetrative sexual offenses (PSOs) and contact sexual 

offenses (CSOs) completed by the Military Services in fiscal year 2018. TABLE 3.1. PENETRATIVE SEXUAL OFFENSE (PSO) OFFENSE DISPOSITIONS BY SERVICE OF THE ACCUSED FOR CASES COMPLETED IN FISCAL YEAR 2018* TABLE 3.2. PENETRATIVE SEXUAL OFFENSE (PSO) CONVICTION RATES BY SERVICE OF THE ACCUSED FOR CASES COMPLETED IN FISCAL YEAR 2018*
61

CHAPTER 3. SEXUAL OFFENSE COURT-MARTIAL CASE 

ADJUDICATION TRENDS AND ANALYSIS

3

CHAPTER 3. SEXUAL ASSAULT COURT-MARTIAL CASE ADJUDICATION TRENDS AND ANALYSIS

Table 3.3. Contact Sexual Offense (CSO) Dispositions by Service of the Accused for Cases Completed in Fiscal Year 2018* **

Judicial Disposition of Contact Sexual Offense (CSO) Allegations Alternate Dispositions for CSO Allegations No Action for CSO Allegations

Cases with 

Preferred 

CSO(s)

Cases with 

Referred 

CSO(s)

Guilty Plea 

to CSO(s)

Contested Courts-Martial

Discharge or 

Resignation 

in Lieu of 

Court-Martial

Article 15 

Nonjudicial 

Punishment 

(NJP) for 

CSO(s)

Other 

Admin. 

Action for 

CSO(s)

Action Taken 

for NonCSO(s) Only 

(CM, NJP, 

Admin. Action, 

discharge)

No 

Action 

for Any 

Offense

Convicted 

of CSO(s)

Convicted 

of Non-Sex 

Offense(s)

Acquitted 

of All 

Offenses

Army 51 34 2 4 20 8 8 1 0 2 6

Marine Corps 32 16 2 1 12 1 4 6 1 2 3

Navy 27 15 1 0 13 1 5 1 0 4 2

Air Force 23 15 2 1 6 6 3 1 0 0 4Coast Guard 10 2 0 0 2 0 2 1 0 1 4Total 143 82 7 6 53 16 22 10 1 9 19

Table 3.4. Contact Sexual Offense (CSO) Conviction Rates by Service of the Accused for Cases Completed in Fiscal Year 2018*

Conviction Rates

Attrition 

Rate from 

Preferral to 

Referral for 

CSO(s)

Percentage 

of Referred 

Cases with 

Guilty Plea 

to CSO(s)

Percentage of 

Preferred Cases 

with Action Taken 

for Non-CSO(s) 

Only

Percentage of 

Preferred Cases 

with Dismissal/ 

No Action Taken 

for Any Offense

Conviction 

Rate for 

CSO(s) in 

Cases with 

Charges 

Preferred**

Conviction 

Rate for 

CSO(s) in 

Cases with 

Charges 

Referred**

Acquittal 

Rate for All 

Offenses 

in Cases 

with CSO(s) 

Referred

Contested Courts-Martial

Conviction 

Rate for 

CSO(s)

Conviction 

Rate for 

Non-CSO(s)

Conviction 

Rate 

for Any 

Offense

Army 11.8% 17.6% 23.5% 12.5% 62.5% 75.0% 33.3% 5.9% 3.9% 11.8%

Marine Corps 9.4% 18.8% 6.3% 7.1% 85.7% 92.9% 50.0% 12.5% 6.3% 9.4%

Navy 3.7% 6.7% 6.7% 0.0% 92.9% 92.9% 44.4% 6.7% 14.8% 7.4%Air Force 13.0% 20.0% 40.0% 7.7% 46.2% 53.8% 34.8% 13.3% 0.0% 17.4%

Coast Guard 0.0% 0.0% 0.0% 0.0% 100.0% 100.0% 80.0% 0.0% 10.0% 40.0%

Total 9.1% 15.9% 19.5% 8.0% 70.7% 78.7% 42.7% 8.5% 6.3% 13.3%

* A completed case is a case with a preferred contact sexual offense that is tried to verdict, dismissed without further action, or resolved by nonjudicial or administrative proceedings during the 

fiscal year being reported.

** Includes only cases in which the accused either pled guilty or contested the CSO.

3

CHAPTER 3. SEXUAL ASSAULT COURT-MARTIAL CASE ADJUDICATION TRENDS AND ANALYSIS

Table 3.3. Contact Sexual Offense (CSO) Dispositions by Service of the Accused for Cases Completed in Fiscal Year 2018* **

Judicial Disposition of Contact Sexual Offense (CSO) Allegations Alternate Dispositions for CSO Allegations No Action for CSO Allegations

Cases with 

Preferred 

CSO(s)

Cases with 

Referred 

CSO(s)

Guilty Plea 

to CSO(s)

Contested Courts-Martial

Discharge or 

Resignation 

in Lieu of 

Court-Martial

Article 15 

Nonjudicial 

Punishment 

(NJP) for 

CSO(s)

Other 

Admin. 

Action for 

CSO(s)

Action Taken 

for NonCSO(s) Only 

(CM, NJP, 

Admin. Action, 

discharge)

No 

Action 

for Any 

Offense

Convicted 

of CSO(s)

Convicted 

of Non-Sex 

Offense(s)

Acquitted 

of All 

Offenses

Army 51 34 2 4 20 8 8 1 0 2 6

Marine Corps 32 16 2 1 12 1 4 6 1 2 3

Navy 27 15 1 0 13 1 5 1 0 4 2

Air Force 23 15 2 1 6 6 3 1 0 0 4Coast Guard 10 2 0 0 2 0 2 1 0 1 4Total 143 82 7 6 53 16 22 10 1 9 19

Table 3.4. Contact Sexual Offense (CSO) Conviction Rates by Service of the Accused for Cases Completed in Fiscal Year 2018*

Conviction Rates

Attrition 

Rate from 

Preferral to 

Referral for 

CSO(s)

Percentage 

of Referred 

Cases with 

Guilty Plea 

to CSO(s)

Percentage of 

Preferred Cases 

with Action Taken 

for Non-CSO(s) 

Only

Percentage of 

Preferred Cases 

with Dismissal/ 

No Action Taken 

for Any Offense

Conviction 

Rate for 

CSO(s) in 

Cases with 

Charges 

Preferred**

Conviction 

Rate for 

CSO(s) in 

Cases with 

Charges 

Referred**

Acquittal 

Rate for All 

Offenses 

in Cases 

with CSO(s) 

Referred

Contested Courts-Martial

Conviction 

Rate for 

CSO(s)

Conviction 

Rate for 

Non-CSO(s)

Conviction 

Rate 

for Any 

Offense

Army 11.8% 17.6% 23.5% 12.5% 62.5% 75.0% 33.3% 5.9% 3.9% 11.8%

Marine Corps 9.4% 18.8% 6.3% 7.1% 85.7% 92.9% 50.0% 12.5% 6.3% 9.4%

Navy 3.7% 6.7% 6.7% 0.0% 92.9% 92.9% 44.4% 6.7% 14.8% 7.4%Air Force 13.0% 20.0% 40.0% 7.7% 46.2% 53.8% 34.8% 13.3% 0.0% 17.4%

Coast Guard 0.0% 0.0% 0.0% 0.0% 100.0% 100.0% 80.0% 0.0% 10.0% 40.0%

Total 9.1% 15.9% 19.5% 8.0% 70.7% 78.7% 42.7% 8.5% 6.3% 13.3%

* A completed case is a case with a preferred contact sexual offense that is tried to verdict, dismissed without further action, or resolved by nonjudicial or administrative proceedings during the 

fiscal year being reported.

** Includes only cases in which the accused either pled guilty or contested the CSO.

TABLE 3.3. CONTACT SEXUAL OFFENSE (CSO) DISPOSITIONS BY SERVICE OF THE ACCUSED 

FOR CASES COMPLETED IN FISCAL YEAR 2018*

TABLE 3.4. CONTACT SEXUAL OFFENSE (CSO) CONVICTION RATES BY SERVICE OF THE ACCUSED 

FOR CASES COMPLETED IN FISCAL YEAR 2018*
62

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

IV. CASE ADJUDICATION DATABASE WAY AHEAD 

The JPP, the predecessor organization to the DAC-IPAD, created a system for the identification and analysis of 

sexual offense cases in the Armed Forces, and the DAC-IPAD, in accordance with its authorizing legislation, has 

continued to utilize and expand the system. As currently designed the system includes over 4,000 records in which 

a penetrative and/or contact sexual offense charge was preferred against a Service member from fiscal years 2012 to 

2018. 

The DAC-IPAD, in order to continue meeting its mandate and provide timely advice to the Secretary of Defense, 

requires a dedicated database for the collection and analysis of case documents. Going forward, however, current 

technical limitations will prevent the DAC-IPAD from providing a useful analysis of how the military justice system 

resolves allegations of sexual offense. 

Because the DAC-IPAD utilizes a document-based methodology, the current system is based on SharePoint, a 

program designed for document sharing within a closed system, rather than a traditional database architecture. In 

the current system DAC-IPAD legal staff enter data into a form created in SharePoint and attach source documents 

to the record. All analysis requires exporting the data into Microsoft Excel and then sorting and counting results to 

answer a given query. Advanced statistical analysis requires extensive recoding of data fields and analysis by statistical 

software separate from SharePoint and Excel.

The DAC-IPAD requires a database that enables 4,000+ case records per fiscal year to be entered and analyzed. 

Each of these case records will include 250+ data fields for demographic and statistical analysis. In addition, with 

a document-based methodology, each record will include attachment of 10+ multiple-page PDF documents. One 

comprehensive database, able to pull required information from the Military Services upon creation of a charge 

sheet against a service member, can be utilized by DAC-IPAD, as well as by other stakeholders, without the need to 

create duplicate systems.

Substantial changes to the Manual for Courts-Martial, implemented in 2019, not only affect individual articles 

under the Uniform Code of Military Justice but also change the sentencing scheme for convictions at court-martial 

in arguably more important ways. Prior to 2019, upon a finding of guilt, the panel of Service members or military 

judge awarded a sentence based on overall guilt (unitary sentencing); however, in the new scheme, under some 

circumstances the accused will receive a discrete sentence for each offense to run consecutively or concurrently 

with other sentences. This change requires a database that is able to track not only each case but each charge and 

specification independently, from preferral to referral to finding and then to sentencing under the different schemes. 

For the results to be accurate and useful for further analysis, a robust database requires not simply data points 

existing independently but multiple decision points within each record with internal automatic quality control 

checks to identify records that are missing required information.

The DAC-IPAD is unable to enter cases from fiscal year 2019 and future years in the current SharePoint-based 

system. Therefore, the DAC-IPAD will not be able to provide further comprehensive demographic and statistical 

analysis going forward. 

The DAC-IPAD staff has met with individuals from various Department of Defense agencies and outside 

organizations to explore solutions that can meet the database requirements. The DAC-IPAD will report updates as 

the project proceeds.
63

CHAPTER 4. ANALYSIS OF THE DRAFT DEPARTMENT OF DEFENSE 

INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

CHAPTER 4. ANALYSIS OF THE DRAFT DEPARTMENT OF 

DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL 

MISCONDUCT REPORT

I. INTRODUCTION

Section 547 of the Fiscal Year 2019 National Defense Authorization Act directs the Secretary of Defense to work 

“through” the DAC-IPAD in submitting to the congressional defense committees a biennial report on the number 

of instances of collateral misconduct, such as underage drinking, fraternization, or curfew violations, committed 

by alleged victims of sexual offenses. This section requires that the reports include three statistical data elements: 

(1) the number of instances in which an individual identified as a victim of a sexual offense in the case files of a 

military criminal investigation was accused of misconduct or crimes considered collateral to the investigation of the 

sexual offense, (2) the number of instances in which adverse action was taken against those individuals for collateral 

misconduct or crimes, and (3) the percentage of sexual offense investigations that involved such an accusation or 

adverse action against those individuals. Each report is to cover the two years preceding the report’s due date.215 The 

FY19 NDAA did not include a termination date for the biennial reports. 

The first report on victim collateral misconduct was due, by statutory requirement, to the congressional defense 

committees by September 30, 2019. The DoD General Counsel provided the DAC-IPAD with DoD’s draft, 

Report on Allegations of Collateral Misconduct Against Individuals Identified as the Victim of Sexual Assault in the Case 

Files of a Military Criminal Investigative Organization, and a request for the Committee’s input and comments in 

accordance with section 547 of the FY19 NDAA.216 Though provided as one document, the DoD submission 

consisted of four separate reports, each individually prepared and submitted to DoD by the Army, Navy, Marine 

Corps, and Air Force as directed by the DoD General Counsel.217 The Coast Guard also prepared its own report and 

provided it to the DAC-IPAD. 

To better understand how the information in the reports was identified and gathered by each Military Service, the 

Committee requested Service representatives who were involved in the data collection process to meet with the 

DAC-IPAD staff and discuss the data reported and methodologies employed in collecting data for the respective 

Military Service reports. Following this meeting and at the request of the Committee, the Military Services provided 

additional details to the DAC-IPAD regarding the types of collateral misconduct reported and the adverse actions 

taken.218 Service representatives were then invited to appear at the August 23, 2019, DAC-IPAD public meeting to 

respond directly to Committee members’ questions about the draft reports.

215 See FY19 NDAA, supra note 17, § 547.

216 See Appendix G, Enclosure 1, which includes the Department of Defense’s draft collateral misconduct report provided to the DAC-IPAD, the Coast 

Guard’s collateral misconduct report, and a supplemental report provided to the DAC-IPAD by the Air Force on August 22, 2019.

217 See Memorandum from the Department of Defense General Counsel to the Secretaries of the Military Departments re: Report on Allegations of 

Collateral Misconduct Against Victims of Sexual Assault (March 12, 2019).

218 See Appendix G, Enclosure 4, which is a compilation of the supplemental information received by the DAC-IPAD from each Military Service, 

providing details on the types of collateral misconduct reported and adverse actions taken.
64

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

On September 16, 2019, drawing on the Committee’s review of the draft reports, the additional information 

provided by the Military Services, and the testimony received at the public meeting, the DAC-IPAD submitted a 

letter to the Secretary of Defense containing both its analysis of DoD’s draft collateral misconduct report and five 

recommendations for improving the uniformity and usefulness of the data collected. The Committee’s letter and its 

enclosures are provided at Appendix G. This chapter provides a restatement of the analysis and recommendations 

previously made to the Secretary of Defense, together with a discussion of dissenting views on the definition 

of collateral misconduct voiced by some members of the Committee. The chapter’s conclusion summarizes the 

response the Committee received from the DoD General Counsel regarding its recommendations; the response is 

provided in its entirety at Appendix H.

II. ANALYSIS OF AND RECOMMENDATIONS REGARDING DOD’S INITIAL SEXUAL 

ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT 

A. Analysis of the Military Services’ Definitions and Methodologies

In reviewing the draft reports and the additional information provided by the Military Services, the Committee 

identified a number of inconsistencies both in the methodologies employed by the Military Services in collecting 

data and in their definitions of terms. These inconsistencies can be attributed, in large part, to the failure of the 

relevant statute to define some of its key terms. That the Military Services, in the absence of uniform guidance 

from Congress or DoD, employed nonstandard and inconsistent definitions to collect collateral misconduct data 

underscores the critical need for, and difficulty in obtaining, uniform, accurate, and complete information on sexual 

offense cases across the military. The Committee noted in an earlier letter to the Secretary of Defense that this 

difficulty was the driving force behind the Committee’s recommendation—regarding Article 140a of the Uniform 

Code of Military Justice (UCMJ)—that DoD develop a single electronic database for the uniform collection, 

storage, and analysis of standardized military justice documents across the Military Services.219

1. Inconsistencies in Data Collection 

One example of the significant differences in the Military Services’ collection of collateral misconduct data was in 

the approach taken by each Military Service to determining its total number of sexual offense investigations and 

victims. One Military Service included only investigations of penetrative sexual offenses in its data, while the other 

Military Services included investigations for both penetrative and contact sexual offenses—a significant disparity. 

Further, some Military Services included cases in which investigations were complete but command action was 

pending as well as cases in which command action was complete. Others included only cases with completed 

command action. In addition, the Military Services differed in whether they included reservists and members of the 

National Guard in federal status who were victims of sexual offenses, and whether they included victims from their 

Military Service if the case was investigated by another Military Service’s military criminal investigative organization 

(MCIO).220

219 See 2018 DAC-IPAD Letter to Secretary of Defense Regarding Article 140a, supra note 19.

220 See Appendix G, Enclosures 2 and 3, which contain charts comparing the Military Services’ varied definitions and methodologies utilized in calculating 

the percentage of victims who were accused of collateral misconduct in each Military Service and the percentage of victims who received adverse action 

in each Military Service.
65

CHAPTER 4. ANALYSIS OF THE DRAFT DEPARTMENT OF DEFENSE 

INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

Another critical difference across Military Services in their reporting criteria was in how each defined the term 

“accused” when determining the number of instances in which a victim of a sexual offense was accused of collateral 

misconduct, as required by the statute. Under the definition used by some Military Services, a victim was considered 

to be accused of collateral misconduct if the MCIO’s sexual offense investigation revealed circumstances that could 

potentially support the taking of adverse action against the victim for misconduct such as underage drinking. Other 

Military Services employed more restrictive criteria, considering a victim to be accused of collateral misconduct only 

if an inquiry into the collateral misconduct was actually initiated. The Committee noted that in the context of the 

collateral misconduct report, the statutory language describing a victim as “accused” of collateral misconduct was 

extremely confusing. In the military justice system, that term is typically used of a Service member only after charges 

have been preferred against them; during the investigative stage, a person suspected of engaging in misconduct is 

typically referred to as a “suspect” or “subject.” Consequently, the lack of clear guidance on what Congress meant for 

a victim to be “accused” of collateral misconduct was a significant obstacle to drafting a meaningful report. 

2. Inconsistencies in Defining “False Allegations of Sexual Assault”

The Military Services were also inconsistent in how they treated what they considered to be false allegations of a 

sexual offense; some Military Services included false allegations in their data as collateral misconduct, while others 

did not. To clarify whether a Military Service included false allegations in the reported number of cases involving 

collateral misconduct, the DAC-IPAD asked all the Military Services to provide data specifically concerning 

false allegations and adverse actions taken.221 None of the Military Services provided a written definition of what 

they classified as a “false allegation of sexual assault” or specified the evidentiary threshold necessary to classify an 

allegation as false. 

During its August 23, 2019, public meeting, the Committee members questioned the Service representatives on 

this issue and learned that at least one Military Service classified cases in which a mistaken report was made by a 

third party as a false report. The Service representatives also mentioned instances in which a suspect makes a “crossclaim” of a sexual offense, meaning that one person reported the sexual offense and the suspect in that case then 

countered by accusing the reporter of a sexual offense. Several Service representatives noted that they had difficulty 

determining how to classify these reports.222

The Committee observed in its letter to the Secretary of Defense that a factually false allegation of a sexual offense 

constitutes its own category of misconduct, distinct from misconduct collateral to a sexual offense, and therefore 

should not be counted as an instance of collateral misconduct. 

221 Though the issue of false allegations is important and may be considered by the Committee in a future study, for this report—given its limited 

scope—the Committee did not further assess the Military Services’ classifications or definitions of a false allegation of sexual assault other than to 

note the information reported by each. Out of a total of 5,733 Service member victims reported by all Services for the period evaluated, the Army 

reported 8 cases involving false allegations of sexual assault; the Navy, Marine Corps, and Air Force each reported 5 cases involving false allegations of 

sexual assault; and the Coast Guard reported 2 cases involving false allegations of sexual assault (the Services submitted these numbers using their own 

definitions of the term “false allegation”). 

222 See Transcript of DAC-IPAD Public Meeting 46–49 (Aug. 23, 2019) (testimony of Lieutenant Adam Miller, U.S. Coast Guard, Legal Intern, Office of 

Military Justice; testimony of Lieutenant Colonel Jane M. Male, U.S. Air Force, Deputy of the Military Justice Division, Air Force Legal Operations 

Agency).
66

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

B. Comparison of Military Service–Provided Collateral Misconduct Data

In the individual Military Service reports reviewed by the DAC-IPAD, each Service presented its data differently.223

To conduct its analysis the Committee created the following tables comparing the data as reported by each Military 

Service. In these tables, percentages may not total 100, owing to rounding errors.

TABLE 4.1. INCIDENCE OF COLLATERAL MISCONDUCT IN SEXUAL OFFENSE CASES CLOSED BETWEEN 

APRIL 1, 2018, AND MARCH 31, 2019 – BY MILITARY SERVICE

Collateral Misconduct and 

Service Member Victims Army Marine Corps Navy Air Force Coast Guard Total

Number of Service member 

victims 1,206 826 1,686 1,753 262 5,733

Number of Service member 

victims “accused” of collateral 

misconduct

146 11 21 100* 53 331

Number of instances when adverse 

action was taken against a Service 

member victim “accused” of 

collateral misconduct

15 10 12 38 6 81

Percentage of Service member 

victims accused of collateral 

misconduct

12% 1% 1% 6% 20% 6%

Percentage of accused Service 

member victims who received 

adverse action for collateral 

misconduct

10% 91% 57% 38% 11% 24%

Percentage of (all) Service member 

victim(s) who received adverse 

action for collateral misconduct

1% 1% 1% 2% 2% 1%

* The Air Force reported 105 Service member victims “accused” of collateral misconduct to the DAC-IPAD; however, in 5 of those cases the misconduct 

reported by the Air Force was a false allegation of a sexual offense. 

223 See Appendix G, Enclosure 1.
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CHAPTER 4. ANALYSIS OF THE DRAFT DEPARTMENT OF DEFENSE 

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Although not required to do so by the FY19 NDAA provision, the DAC-IPAD determined that in order to 

meaningfully assess the issue of collateral misconduct, it is also important to review the types of collateral 

misconduct occurring as well as the types of adverse action that victims are receiving for such misconduct. 

Therefore, the Committee requested supplemental information from the Military Services. The supplemental data 

were used by the staff to create Tables 4.2 and 4.3.224

TABLE 4.2. TYPE OF ALLEGED COLLATERAL MISCONDUCT – BY MILITARY SERVICE

Type of Alleged 

Collateral Misconduct

Army 

(n=146)

Marine 

Corps 

(n=11)

Navy 

(n=21)

Air Force 

(n=105)

Coast Guard 

(n=53)

Underage Drinking 55 (38%) 3 (27%) 4 (19%) 25 (24%) 8 (15%)

Violation of Order or Policy 

(e.g., missing curfew, drinking) 21 (14%) 4 (36%) 3 (13%) 20 (19%) 1 (2%)

Adultery 20 (14%) – 2 (10%) 15 (14%)* 1 (2%)

Fraternization 19 (13%) – 6 (29%) – 4 (8%)

Sexual Assault Counterclaim or 

Other Sex Offense 7 (5%) – 1 (<1%) 10 (10%) 1 (2%)

Inappropriate/Prohibited 

Relationship 5 (3%) – – – 27 (51%)

False Statements (not including 

false reports) 5 (3%) – – 6 (6%) 2 (4%)

Drug Use 4 (3%) 1 (10%) 2 (10%) 10 (10%) 1 (2%)

Prostitution – – – – 1 (2%)

Sex in the Barracks – – – – 7 (13%)

Drunk and Disorderly Conduct – – 2 (10%) – –

Indirect Collateral Misconduct 

(future misconduct attributed to 

sexual trauma)

3 (2%) – – – –

Unknown 3 (2%) – – – –

Assault 2 (1%) – – 8 (8%) –

Driving Under the Influence (DUI)/

Drunk Driving 1 (1%) 1 (<1%) 1 (10%) 4 (4%) –

Absence Without Leave (AWOL) 1 (1%) – – 1 (1%) –

Article 133, Conduct Unbecoming – 1 (10%) – – –

Insubordination – – – 1 (1%) –

* Air Force–provided data combined adultery, fraternization, and inappropriate relationships into one category.

224 The complete supplemental information provided to the DAC-IPAD by each of the Military Services is available at Appendix G, Enclosure 4. 
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

TABLE 4.3. TYPE OF ADVERSE ACTION TAKEN FOR COLLATERAL MISCONDUCT – BY MILITARY SERVICE

Type of Adverse Action Taken 

for Collateral Misconduct

Army 

(n=15)

Marine 

Corps 

(n=10)

Navy 

(n=12)

Air Force 

(n=38)

Coast Guard 

(n=6)

Verbal Counseling 4 (27%) – – – –

Letter of Reprimand (LOR) 

(or Service equivalent) 4 (27%) 3 (30%) 1 (8%) 17 (45%) 2 (33%)

Article 15 Nonjudicial Punishment 6 (40%) 5 (50%) 8 (67%) 12 (32%) 3 (50%)

Discharge/Separation 1 (7%) – 2 (17%) – –

Court-Martial (CM) / 

CM + Discharge – – – 2 (5%) 1 (17%)

Liberty Restrictions – – 1 (8%) – –

LOR/Article 15 + Discharge – 1 (10%) – 7 (18%) –

Retirement – 1 (10%) – – –

C. Analysis of Collateral Misconduct Data Provided by the Military Services

Incidence of Collateral Misconduct

Congress requested that the Secretary of Defense report the percentage of Service members who are victims of sexual 

offenses and are accused of collateral misconduct. Notwithstanding the inconsistencies in the Military Services’ 

methodologies and definitions, the data made clear that the incidence of victim collateral misconduct in MCIOinvestigated sexual offense cases is fairly low, ranging from 1% of the Service members who were victims of a sexual 

offense in the Navy and Marine Corps to a high of 20% in the Coast Guard. In the largest Military Service—the 

Army—12% of Service member victims were accused of collateral misconduct in penetrative cases. According to the 

Committee’s calculations, which are based on the combined DoD and Coast Guard reports, as well as the Military 

Services’ varying definitions of “accused of collateral misconduct,” 6% of Service member victims overall were 

accused of collateral misconduct in the two-year period studied.

Likelihood of Adverse Action

Congress also requested that the percentage of Service members who are victims of a sexual offense and receive 

adverse action for collateral misconduct be reported. The Military Services provided the percentage of all Service 

member victims who received adverse action for collateral misconduct, regardless of whether a victim was accused 

of such misconduct. However, the figure that may be particularly helpful to policymakers is more narrowly defined: 

the percentage of those Service members who were accused of collateral misconduct and also received some form of 

adverse action for it. According to the Committee’s calculations, the incidence of Service member victims receiving 

adverse action when accused of collateral misconduct varied widely across the Military Services, ranging from 

10% of accused Service members in the Army receiving adverse action to 91% in the Marine Corps. Importantly, 

this statistic does not provide a basis for reliable comparisons across the Military Services in the draft DoD report, 
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CHAPTER 4. ANALYSIS OF THE DRAFT DEPARTMENT OF DEFENSE 

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because the Military Services did not have uniform interpretations of the term “accused.” As would be expected, 

the Military Services that defined “accused” more broadly showed less likelihood of adverse action than the Military 

Services that defined the term more restrictively. 

Types of Collateral Misconduct and of Adverse Action Received

In the data initially provided to the DAC-IPAD, the Military Services did not include the type of collateral 

misconduct each victim was accused of or the type of adverse action received; however, several Military Services 

mentioned in their reports that they did collect this information, which the Committee subsequently requested 

from all the Military Services for analysis. The frequency of each type of collateral misconduct differed by Military 

Service. In the Army, the most common collateral misconduct offenses were underage drinking (38%), adultery 

(14%), violation of an order or policy (14%), and fraternization (13%). In the Navy, the most common collateral 

misconduct offenses were fraternization (29%), underage drinking (19%), and liberty policy violations (14%). In 

the Marine Corps, the most common collateral misconduct offenses were orders violations (36%) and underage 

drinking (27%). In the Air Force, the most common collateral misconduct offenses were underage drinking (24%), 

orders or policy violations (19%), and adultery, fraternization, or unprofessional relationships (14%). Finally, in 

the Coast Guard, the most common collateral misconduct offenses were prohibited relationship (51%), underage 

drinking (15%), and sex in the barracks (13%). The type of adverse action received for these offenses also varied 

across the Military Services.

D. Recommendations 

Because all the Military Services did not use the same methodology to collect data, the DAC-IPAD was unable to 

base substantive recommendations regarding collateral misconduct on the information contained in the reports. The 

Committee found that before meaningful analysis can take place, the Military Services must adopt a thorough and 

consistent methodology for collecting the relevant data. If the inconsistencies in the Military Services’ definitions 

and methodologies for data collection are not resolved promptly, future reports on collateral misconduct will have 

the same shortcomings as are discussed in this chapter.

Drawing on the experience of collecting the data required for this initial 2019 collateral misconduct report, the 

Military Services provided the DAC-IPAD with valuable input to help clarify and standardize definitions and the 

collection methodology in the reports going forward. Based on this input, on the testimony received from Service 

representatives at the August 23, 2019, public meeting, and on the Committee’s deliberations, the DAC-IPAD 

offered the following recommendations to the Secretary of Defense to improve the uniformity, accuracy, and utility 

of victim collateral misconduct data in future reports.225

DAC-IPAD Recommendation 19: The Department of Defense should publish a memorandum outlining 

sufficiently specific data collection requirements to ensure that the Military Services use uniform methods, 

definitions, and timelines when reporting data on collateral misconduct (or, where appropriate, the Department 

should submit a legislative proposal to Congress to amend section 547 by clarifying certain methods, definitions, 

and timelines). The methodology and definitions should incorporate the following principles:

225 The collateral misconduct–related recommendations in this report have been renumbered so that they follow consecutively the recommendations (1–18) 

that were published in previous DAC-IPAD reports. See Appendix E.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

a. Definition of “sexual offense”: 

• The definition of “sexual offense” for purposes of reporting collateral misconduct should include

– Both penetrative and non-penetrative violations of Article 120, UCMJ (either the current or 

a prior version, whichever is applicable at the time of the offense);

– Violations of Article 125, UCMJ, for allegations of sodomy occurring prior to the 2019 

version of the UCMJ; and

– Attempts, conspiracies, and solicitations of all of the above.

• The definition of sexual offense should not include violations of Article 120b, UCMJ (Rape and 

sexual assault of a child); Article 120c, UCMJ (Other sexual misconduct); Article 130, UCMJ 

(Stalking); or previous versions of those statutory provisions.

b. Definition of “collateral misconduct”: 

• Current DoD policy defines “collateral misconduct” as “[v]ictim misconduct that might be in 

time, place, or circumstance associated with the victim’s sexual offense incident.”226

• However, a more specific definition of collateral misconduct is necessary for purposes of the 

section 547 reporting requirement. That recommended definition should read as follows: “Any 

misconduct by the victim that is potentially punishable under the UCMJ, committed close 

in time to or during the sexual offense, and directly related to the incident that formed the 

basis of the sexual offense allegation. The collateral misconduct must have been discovered as a 

direct result of the report of the sexual offense and/or the ensuing investigation into the sexual 

offense.”

• Collateral misconduct includes (but is not limited to) the following situations:

– The victim was in an unprofessional or adulterous relationship with the accused at the time 

of the assault.227

– The victim was drinking underage or using illicit substances at the time of the assault.

– The victim was out past curfew, was at an off-limits establishment, or was violating barracks/

dormitory/berthing policy at the time of the assault.

• To ensure consistency across the Military Services, collateral misconduct, for purposes of this 

report, should not include the following situations (the list is not exhaustive):

– The victim is under investigation or receiving disciplinary action for misconduct and 

subsequently makes a report of a sexual offense.

– The victim used illicit substances at some time after the assault, even if the use may be 

attributed to coping with trauma.

– The victim engaged in misconduct after reporting the sexual offense.

– The victim had previously engaged in an unprofessional or adulterous relationship with the 

subject, but had terminated the relationship prior to the assault.

226 Dep’t of Def. Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures, Glossary (March 28, 2013, Incorporating 

Change 3, May 24, 2017), 117. 

227 For purposes of this report, an “unprofessional relationship” is a relationship between the victim and accused that violated law, regulation, or policy in 

place at the time of the assault.
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CHAPTER 4. ANALYSIS OF THE DRAFT DEPARTMENT OF DEFENSE 

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– The victim engaged in misconduct that is not close in time to the sexual offense, even if it 

was reasonably foreseeable that such misconduct would be discovered during the course 

of the investigation (such as the victim engaging in an adulterous relationship with an 

individual other than the subject).

– The victim is suspected of making a false allegation of a sexual offense.

– The victim engaged in misconduct during the reporting or investigation of the sexual 

offense (such as making false official statements during the course of the investigation).

c. Methodology for identifying sexual offense cases and victims:

• To identify sexual offense cases and victims, all closed cases from the relevant time frame that 

list at least one of the above included sexual offenses as a crime that was investigated should be 

collected from the MCIOs.

• A case is labeled “closed” after a completed MCIO investigation has been submitted to a 

commander to make an initial disposition decision, any action taken by the commander has 

been completed, and documentation of the outcome has been provided to the MCIO.228

• Each Military Service should identify all of its Service member victims from all closed cases from 

the relevant time frame, even if the case was investigated by another Military Service’s MCIO.

d. Time frame for collection of data:

• The Military Services should report collateral misconduct data for the two most recent fiscal 

years preceding the report due date for which data are available. The data should be provided 

separately for each fiscal year and should include only closed cases as defined above. For 

example, the Department’s report due September 30, 2021, should include data for closed cases 

from fiscal years 2019 and 2020.

e. Definition of “covered individual”:

• Section 547 of the FY19 NDAA defines “covered individual” as “an individual who is identified 

as a victim of a sexual offense in the case files of a military criminal investigative organization.” 

This definition should be clarified as follows: “an individual identified in the case files of an 

MCIO as a victim of a sexual offense while in title 10 status.”

• For the purposes of this study, victims are those identified in cases closed during the applicable 

time frame.

f. Replacement of the term “accused”:

• Section 547 of the FY19 NDAA uses the phrase “accused of collateral misconduct.” To more 

accurately capture the frequency with which collateral misconduct is occurring, the term 

“accused of” should be replaced with the term “suspected of,” defined as follows: instances in 

which the MCIO’s investigation reveals facts and circumstances that would lead a reasonable 

person to believe that the victim committed an offense under the UCMJ.229

228 This definition of “closed case” mirrors the definition used by the DAC-IPAD’s Case Review Working Group. See DAC-IPAD Third Annual Report,

supra note 20, at 21 n.28. 

229 Cf. United States v. Cohen, 63 M.J. 45, 50 (C.A.A.F. 2006) (stating that determining whether a person is a “suspect” entitled to warnings under Article 
72

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

• Examples of a victim suspected of collateral misconduct include (but are not limited to) the 

following situations:

– The victim disclosed engaging in conduct that could be a violation of the UCMJ (and was 

collateral to the offense).

– Another witness in the investigation stated that the victim engaged in conduct that could be 

a violation of the UCMJ (and was collateral to the offense).

– The subject of the investigation stated that the victim engaged in conduct that could be a 

violation of the UCMJ (and was collateral to the offense). 

– In the course of the sexual offense investigation, an analysis of the victim’s phone, urine, or 

blood reveals evidence that the victim engaged in conduct that could be a violation of the 

UCMJ (and was collateral to the offense).

• This definition of “suspected of” does not require preferral of charges, a formal investigation, 

or disciplinary action against the victim for the collateral misconduct. However, if any of 

those actions has occurred regarding collateral misconduct, or if there is evidence of collateral 

misconduct from other sources available, such victims should also be categorized as suspected 

of collateral misconduct even if the MCIO case file does not contain the evidence of such 

misconduct.

– For example, if in pretrial interviews the victim disclosed collateral misconduct, such a 

victim would be counted as suspected of collateral misconduct.

g. Definition of “adverse action”: 

• The term “adverse action” applies to an officially documented command action that has been 

initiated against the victim in response to the collateral misconduct.

• Adverse actions required to be documented in collateral misconduct reports are limited to the 

following:

– Letter of reprimand (or Military Service equivalent) or written record of individual 

counseling in official personnel file;

– Imposition of nonjudicial punishment;

– Preferral of charges; or

– Initiation of an involuntary administrative separation proceeding.

• The Committee recommends limiting the definition of adverse action to the above list for 

purposes of this reporting requirement to ensure consistency and accuracy across the Military 

Services in reporting and to avoid excessive infringement on victim privacy. The Committee 

recognizes the existence of other adverse administrative proceedings or actions that could lead 

to loss of special or incentive pay, administrative reduction of grade, loss of security clearance, 

bar to reenlistment, adverse performance evaluation (or Military Service equivalent), or 

reclassification. 

31(b) prior to interrogation “is an objective question that is answered by considering all the facts and circumstances at the time of the interview to 

determine whether the military questioner believed or reasonably should have believed that the servicemember committed an offense”) (internal 

citations omitted).
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CHAPTER 4. ANALYSIS OF THE DRAFT DEPARTMENT OF DEFENSE 

INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

h. Methodology for counting “number of instances”:

• Cases in which a victim is suspected of more than one type of collateral misconduct should be 

counted only once; where collateral misconduct is reported by type, it should be counted under 

the most serious type of potential misconduct (determined by UCMJ maximum punishment) 

or, if the victim received adverse action, under the most serious collateral misconduct identified 

in the adverse action.

• For cases in which a victim received more than one type of adverse action identified above, such 

as nonjudicial punishment and administrative separation, reporting should include both types of 

adverse action. 

DAC-IPAD Recommendation 20: Victims suspected of making false allegations of a sexual offense should not be 

counted as suspected of collateral misconduct. 

DAC-IPAD Recommendation 21: For purposes of the third statistical data element required by section 547, the 

Department of Defense should report not only the percentage of all Service member victims who are suspected 

of collateral misconduct but also the percentage of the Service member victims who are suspected of collateral 

misconduct and then receive an adverse action for the misconduct. These two sets of statistics would better inform 

policymakers about the frequency with which collateral misconduct is occurring and the likelihood of a victim’s 

receiving an adverse action for collateral misconduct once they are suspected of such misconduct. 

DAC-IPAD Recommendation 22: The Department of Defense should include in its report data on the number 

of collateral offenses that victims were suspected of by type of offense (using the methodology specified in section 

h of Recommendation 19) and the number and type of adverse actions taken for each of the offenses, if any. 

This additional information would aid policymakers in fully understanding and analyzing the issue of collateral 

misconduct and in preparing training and prevention programs.

DAC-IPAD Recommendation 23: To facilitate production of the future collateral misconduct reports required 

by section 547, the Military Services should employ standardized internal documentation of sexual offense cases 

involving Service member victims suspected of engaging in collateral misconduct as defined for purposes of this 

reporting requirement.
74

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

III. DISSENTING OPINIONS ON THE DEFINITION OF COLLATERAL MISCONDUCT

During final deliberations regarding the DAC-IPAD’s response to DoD’s draft collateral misconduct report, some 

Committee members expressed concerns about the definition of collateral misconduct that was ultimately adopted 

by majority vote of the Committee. General Schwenk noted that the reason people care about collateral misconduct 

is that it might deter the reporting of a sexual offense.230 He felt that any misconduct by the victim that might come 

to light during the course of an investigation, not just the narrowly defined instances contained in the Committee’s 

recommended definition, would be a deterrent to reporting. After a roll call vote of the participating Committee 

members, eight members voted in favor of the definition of collateral misconduct as set forth in DAC-IPAD 

Recommendation 19 and three members—General Schwenk, Ms. Garvin, and Judge Walton—voted in opposition. 

The Committee notes these members’ dissenting views for consideration by the Secretary of Defense and Congress.

IV. DEPARTMENT OF DEFENSE RESPONSE TO THE DAC-IPAD’S LETTER

On October 2, 2019, Chair Bashford received a letter from Mr. Paul C. Ney, Jr., the DoD General Counsel, 

regarding the DAC-IPAD’s analysis and recommendations concerning the DoD draft collateral misconduct 

report.231 Mr. Ney informed the Chair that he forwarded the DAC-IPAD’s recommendations to the Joint Service 

Committee on Military Justice (JSC) for its analysis, including determining which recommendations could be 

executed under the existing statutory framework and which recommendations could not be implemented absent 

statutory amendment. Mr. Ney asked the JSC to provide its recommendations by March 13, 2020, to allow 

sufficient time to implement appropriate changes before the next collateral misconduct report is due to Congress. 

The DAC-IPAD looks forward to receiving the JSC’s input regarding its recommendations.

230 See Transcript of DAC-IPAD Public Meeting 23 (Sept. 14, 2019) (comment of Brigadier General (Ret.) Schwenk). 

231 See Appendix H for the DoD General Counsel’s letter to Ms. Bashford regarding the DAC-IPAD’s collateral misconduct analysis and recommendations.
75

CHAPTER 5. MILITARY INSTALLATION SITE VISITS AND MEMBER 

OBSERVATION OF PENETRATIVE SEXUAL OFFENSE COURTS-MARTIAL 

CHAPTER 5. MILITARY INSTALLATION SITE VISITS 

AND MEMBER OBSERVATION OF PENETRATIVE SEXUAL 

OFFENSE COURTS-MARTIAL 

I.BACKGROUND

As discussed in Chapters 1 and 2 of this report, the Committee has identified a number of issues regarding the 

investigatory, pretrial, and court-martial processes of sexual offense cases that it wants to review further. Several 

of these issues are associated with recommendations made by the DAC-IPAD’s predecessor panel, the Judicial 

Proceedings Panel (JPP). In order to gain additional perspectives on these issues from practitioners in the military 

justice system, the Committee has elected to conduct military installation site visits. The Committee has also 

decided to have members attend courts-martial involving charges of a sexual offense in order to gain a firsthand 

perspective on current military trial practice.

II.MILITARY INSTALLATION SITE VISITS 

Members of the Judicial Proceedings Panel conducted military installation site visits in the summer of 2016, 

speaking with investigators, trial practitioners, and others involved in the military justice system on a nonattribution basis in order to gain candid assessments of the effects of recent statutory and policy changes on the 

prosecution of sexual offense cases. In 2017, drawing in part on the information received during these site visits, the 

JPP produced three reports on the issues of defense resources, sexual offense investigations, and concerns regarding 

the fair administration of military justice.232

In several recommendations in those reports, the JPP suggested that the DAC-IPAD conduct military installation 

site visits or otherwise continue to review the following topics: what the effects are of allowing Service law 

enforcement agencies to assist the military criminal investigative organizations with sexual offense investigations 

(JPP Recommendation 47); how the Article 32 preliminary hearing framework is functioning after the 

implementation of major statutory changes in 2014 (JPP Recommendation 55); whether convening authorities 

and staff judge advocates are making effective use of the Article 33 Disposition Guidance for judge advocates, 

commanders, and convening authorities (since promulgated in the 2019 Manual for Courts-Martial at Appendix 

2.1) in deciding case dispositions, and what effect, if any, this guidance has had on the number of sexual offense 

cases being referred to court-martial and on the acquittal rate in such cases (JPP Recommendation 57); whether 

Article 34 should be amended in ways that would encourage the staff judge advocate to provide more fully 

developed and candid written advice to the convening authority regarding the strengths and weaknesses of the 

charges so that the convening authority can make a better-informed disposition decision (JPP Recommendation 

58); and whether misperceptions regarding alcohol consumption and consent affect court-martial panel members 

(Recommendation 62).233

232 See Judicial Proceedings Panel Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases (April 2017); 

Judicial Proceedings Panel Report on Sexual Assault Investigations in the Military (Sept. 2017); JPP Report on Fair Administration of 

Military Justice, supra note 154, available at https://dacipad.whs.mil/reading. 

233 DAC-IPAD Third Annual Report, supra note 20, at 124.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

In addition to these subject areas, the DAC-IPAD has identified additional issues through the Case Review Working 

Group’s analysis of sexual offense investigations that require further review, including victims’ decisions to decline 

participation in the investigation or prosecution of sexual offense cases, as well as the training provided to Service 

members at all levels regarding sexual offenses. 

The DAC-IPAD has determined that military installation site visits will benefit the Committee’s analysis of the 

issues and will enable the members to better assess the effects of recent statutory and policy changes to sexual offense 

investigations and prosecutions. Accordingly, at its August 2019 public meeting the Committee approved a proposal 

to conduct site visits.234

The Committee members will meet with some or all of the following groups: investigators, prosecutors, defense 

counsel, victims’ legal counsel/special victims’ counsel, commanders, convening authorities, military trainees, junior 

enlisted Service members, and victims. The Committee Chair approved the following site visits to be conducted: 

Fort Hood/Joint Base San Antonio–Lackland, Texas

Joint Base Lewis-McChord, Washington

Joint Base Pearl Harbor–Hickam, Hawaii

Naval Station Norfolk, Virginia

Camp Humphreys, Republic of Korea

Fort Bragg/Camp Lejeune, North Carolina

Naval Base San Diego/Camp Pendleton, California

Kaiserslautern Military Community/Army Garrison Vicenza (Europe)

III.DAC-IPAD MEMBER OBSERVATION OF SEXUAL OFFENSE COURTS-MARTIAL 

During the November 15, 2019, public meeting, the Committee also approved a proposal for members to attend 

and observe courts-martial involving charges of penetrative sexual offenses.235 From November 2019 through 

January 2020, several Committee members attended general courts-martial involving charges of a penetrative 

sexual offense at Marine Corps Air Station Miramar in San Diego, California, and Joint Base Lewis-McChord near 

Tacoma, Washington. Committee members will continue to attend penetrative sexual offense courts-martial across 

all of the Military Services, and will report back to the full Committee on their observations of the court-martial 

process.

234 Transcript of DAC-IPAD Public Meeting 330 (Aug. 23, 2019) (comments of Ms. Bashford).

235 Transcript of DAC-IPAD Public Meeting 293–304 (Nov. 15, 2019). 
A-1

APPENDIX A: COMMITTEE AUTHORIZING STATUTE, AMENDMENTS, AND DUTIES

APPENDIX A. COMMITTEE AUTHORIZING STATUTE, 

AMENDMENTS, AND DUTIES

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2015

SECTION 546. DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, AND 

DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES. (Public Law 113–291; 128 Stat. 3374; 10 

U.S.C. 1561 note)

(a) ESTABLISHMENT REQUIRED.—

(1) IN GENERAL.—The Secretary of Defense shall establish and maintain within the Department of 

Defense an advisory committee to be known as the “Defense Advisory Committee on Investigation, 

Prosecution, and Defense of Sexual Assault in the Armed Forces” (in this section referred to as the “Advisory 

Committee”).

(2) DEADLINE FOR ESTABLISHMENT.—The Secretary shall establish the Advisory Committee not later 

than 30 days before the termination date of the independent panel established by the Secretary under 

section 576(a)(2) of the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239; 126 

Stat. 1758), known as the “judicial proceedings panel”.

(b) MEMBERSHIP.—The Advisory Committee shall consist of not more than 20 members, to be appointed by 

the Secretary of Defense, who have experience with the investigation, prosecution, and defense of allegations of 

sexual assault offenses. Members of the Advisory Committee may include Federal and State prosecutors, judges, 

law professors, and private attorneys. Members of the Armed Forces serving on active duty may not serve as a 

member of the Advisory Committee.

(c) DUTIES.—

(1) IN GENERAL.—The Advisory Committee shall advise the Secretary of Defense on the investigation, 

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

involving members of the Armed Forces.

(2) BASIS FOR PROVISION OF ADVICE.—For purposes of providing advice to the Secretary pursuant to 

this subsection, the Advisory Committee shall review, on an ongoing basis, cases involving allegations of 

sexual misconduct described in paragraph (1).

(d) ANNUAL REPORTS.—Not later than March 30 each year, the Advisory Committee shall submit to the 

Secretary of Defense and the Committees on Armed Services of the Senate and the House of Representatives 

a report describing the results of the activities of the Advisory Committee pursuant to this section during the 

preceding year.

(e) TERMINATION.—

(1) IN GENERAL.—Except as provided in paragraph (2), the Advisory Committee shall terminate on the date 

that is five years after the date of the establishment of the Advisory Committee pursuant to subsection (a).
A-2

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

(2) CONTINUATION.—The Secretary of Defense may continue the Advisory Committee after the 

termination date applicable under paragraph (1) if the Secretary determines that continuation of the 

Advisory Committee after that date is advisable and appropriate. If the Secretary determines to continue 

the Advisory Committee after that date, the Secretary shall submit to the President and the congressional 

committees specified in subsection (d) a report describing the reasons for that determination and specifying 

the new termination date for the Advisory Committee.

(f) DUE DATE FOR ANNUAL REPORT OF JUDICIAL PROCEEDINGS PANEL.—Section 576(c)(2)(B) of 

the National Defense Authorization Act for Fiscal Year 2013 (Public Law 112-239; 126 Stat. 1760) is amended 

by inserting “annually thereafter” after “reports”.

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2016

SECTION 537. MODIFICATION OF DEADLINE FOR ESTABLISHMENT OF DEFENSE ADVISORY 

COMMITTEE ON INVESTIGATION, PROSECUTION, AND DEFENSE OF SEXUAL ASSAULT IN THE 

ARMED FORCES.

Section 546(a)(2) of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal 

Year 2015 (Public Law 113–291; 128 Stat. 3374; 10 U.S.C. 1561 note) is amended by striking “not later than” 

and all that follows and inserting “not later than 90 days after the date of the enactment of the National Defense 

Authorization Act for Fiscal Year 2016.”.

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2019

SEC. 533. AUTHORITIES OF DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, 

PROSECUTION, AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES.

Section 546 of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 

2015 (10 U.S.C. 1561 note) is amended—

(1) by redesignating subsections (d) and (e) as subsections (e) and (f), respectively; and

(2) by inserting after subsection (c) the following new subsection (d):

“(d) AUTHORITIES.—

“(1) HEARINGS.—The Advisory Committee may hold such hearings, sit and act at such times and places, 

take such testimony, and receive such evidence as the committee considers appropriate to carry out its 

duties under this section.

“(2)INFORMATION FROM FEDERAL AGENCIES.—Upon request by the chair of the Advisory 

Committee, a department or agency of the Federal Government shall provide information that the 

Advisory Committee considers necessary to carry out its duties under this section. In carrying out 

this paragraph, the department or agency shall take steps to prevent the unauthorized disclosure of 

personally identifiable information.”.
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APPENDIX A: COMMITTEE AUTHORIZING STATUTE, AMENDMENTS, AND DUTIES

SEC. 547. REPORT ON VICTIMS OF SEXUAL ASSAULT IN REPORTS OF MILITARY CRIMINAL 

INVESTIGATIVE ORGANIZATIONS.

(a) REPORT.—Not later than September 30, 2019, and not less frequently than once every two years thereafter, 

the Secretary of Defense, acting through the Defense Advisory Committee on Investigation, Prosecution, and 

Defense of Sexual Assault in the Armed Forces shall submit to the congressional defense committees a report 

that includes, with respect to the period of two years preceding the date of the submittal of the report, the 

following:

(1) The number of instances in which a covered individual was accused of misconduct or crimes considered 

collateral to the investigation of a sexual assault committed against the individual.

(2) The number of instances in which adverse action was taken against a covered individual who was accused of 

collateral misconduct or crimes as described in paragraph (1).

(3) The percentage of investigations of sexual assaults that involved an accusation or adverse action against a 

covered individual as described in paragraphs (1) and (2).

(b) COVERED INDIVIDUAL DEFINED.—In this section, the term “covered individual” means an individual 

who is identified as a victim of a sexual assault in the case files of a military criminal investigative organization.

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2020

SEC. 535. EXTENSION OF DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, 

PROSECUTION, AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES.

Section 546(f)(1) of the Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal 

Year 2015 (10 U.S.C. 1561 note) is amended by striking “five”’ and inserting “ten”.

Joint Explanatory Statement: 

The conferees request the DAC-IPAD review, as appropriate, whether other justice programs (e.g., restorative justice 

programs, mediation) could be employed or modified to assist the victim of an alleged sexual assault or the alleged offender, 

particularly in cases in which the evidence in the victim’s case has been determined not to be sufficient to take judicial, 

non-judicial, or administrative action against the perpetrator of the alleged offense.

Further, the conferees recognize the importance of providing survivors of sexual assault an opportunity to provide a 

full and complete description of the impact of the assault on the survivor during court-martial sentencing hearings related 

to the offense. The conferees are concerned by reports that some military judges have interpreted Rule for Courts-Martial 

(RCM) 1001(c) too narrowly, limiting what survivors are permitted to say during sentencing hearings in ways that do not 

fully inform the court of the impact of the crime on the survivor. 

Therefore, the conferees request that, on a one-time basis, or more frequently, as appropriate, and adjunct to its review 

of court-martial cases completed in any particular year, the DAC-IPAD assess whether military judges are according 

appropriate deference to victims of crimes who exercise their right to be heard under RCM 1001(c) at sentencing hearings, 

and appropriately permitting other witnesses to testify about the impact of the crime under RCM 1001.
A-4

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

SEC. 540I. ASSESSMENT OF RACIAL, ETHNIC, AND GENDER DISPARITIES IN THE MILITARY 

JUSTICE SYSTEM.

(a) IN GENERAL.—The Secretary of Defense shall provide for the carrying out of the activities described in 

subsections (b) and (c) in order to improve the ability of the Department of Defense to detect and address 

racial, ethnic, and gender disparities in the military justice system.

(b) SECRETARY OF DEFENSE AND RELATED ACTIVITIES.—The activities described in this subsection are 

the following, to be commenced or carried out (as applicable) by not later than 180 days after the date of the 

enactment of this Act:

(1) For each court-martial carried out by an Armed Force after the date of the enactment of this Act, the 

Secretary of Defense shall require the head of the Armed Force concerned—

(A) to record the race, ethnicity, and gender of the victim and the accused, and such other demographic 

information about the victim and the accused as the Secretary considers appropriate;

(B) to include data based on the information described in subparagraph (A) in the annual military justice 

reports of the Armed Force. 

(2) The Secretary of Defense, in consultation with the Secretaries of the military departments and the Secretary 

of Homeland Security, shall issue guidance that—

(A) establishes criteria to determine when data indicating possible racial, ethnic, or gender disparities in the 

military justice process should be further reviewed; and

(B) describes how such a review should be conducted.

(3) The Secretary of Defense, in consultation with the Secretaries of the military departments and the Secretary 

of Homeland Security, shall—

(A) conduct an evaluation to identify the causes of any racial, ethnic, or gender disparities in the military 

justice system;

(B) take steps to address the causes of such disparities, as appropriate.

(c) DAC-IPAD ACTIVITIES.—

(1) IN GENERAL.—The activities described in this subsection are the following, to be conducted by the 

independent committee DAC-IPAD:

(A) A review and assessment, by fiscal year, of the race and ethnicity of members of the Armed Forces 

accused of a penetrative sexual assault offense or contact sexual assault offense in an unrestricted report 

made pursuant to Department of Defense Instruction 6495.02, including an unrestricted report 

involving a spouse or intimate partner, in all cases completed in each fiscal year addressed. 

(B) A review and assessment, by fiscal year, of the race and ethnicity of members of the Armed Forces 

against whom charges were preferred pursuant to Rule for Courts-Martial 307 for a penetrative sexual 

assault offense or contact sexual assault offense in all cases completed in each fiscal year assessed.
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APPENDIX A: COMMITTEE AUTHORIZING STATUTE, AMENDMENTS, AND DUTIES

(C) A review and assessment, by fiscal year, of the race and ethnicity of members of the Armed Forces 

who were convicted of a penetrative sexual assault offense or contact sexual assault offense in all cases 

completed in each fiscal year assessed.

(2) INFORMATION FROM FEDERAL AGENCIES.—

(A) IN GENERAL.—Upon request by the chair of the committee, a department or agency of the Federal 

Government shall provide information that the committee considers necessary to conduct reviews and 

assessments required by paragraph (1), including military criminal investigative files, charge sheets, 

records of trial, and personnel records.

(B) HANDLING, STORAGE, AND RETURN.—The committee shall handle and store all records 

received and reviewed under this subsection in accordance with applicable privacy laws and Department 

of Defense policy, and shall return all records so received in a timely manner.

(3) REPORT.—Not later than one year after the date of the enactment of this Act, the committee shall submit 

to the Secretary of Defense, and to the Committees on Armed Services of the Senate and the House of 

representatives, a report setting forth the results of the reviews and assessments required by paragraph (1). 

The report shall include such recommendations for legislative or administrative action as the committee 

considers appropriate in light of such results. 

(4) DEFINITIONS.—In this subsection:

(A) The term “independent committee DAC-IPAD” means the independent committee established by the 

Secretary of Defense under section 546 of the Carl Levin and Howard P. “Buck” McKeon National 

Defense Authorization Act for Fiscal Year 2015 (Public Law 113–291; 128 Stat. 3374), commonly 

known as the “DAC-IPAD”.

(B) The term “case” means an unrestricted report of any penetrative sexual assault offense or contact sexual 

assault offense made against a member of the Armed Forces pursuant to Department of Defense 

Instruction 6495.02, including any unrestricted report involving a spouse or intimate partner for which 

an investigation has been opened by a criminal investigative organization.

(C) The term “completed”, with respect to a case, means that the case was tried to verdict, dismissed without 

further action, or dismissed and then resolved by non-judicial or administrative proceedings.

(D)The term “contact sexual assault offense” means aggravated sexual contact, abusive sexual contact, 

wrongful sexual contact, and attempts to commit such offenses under the Uniform Code of Military 

Justice.

(E) The term “penetrative sexual assault offense” means rape, aggravated sexual assault, sexual assault, 

forcible sodomy, and attempts to commit such offenses under the Uniform Code of Military Justice.
A-6

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

H. Rept. 116-120 on H.R. 2500 

TITLE V—MILITARY PERSONNEL POLICY

ITEMS OF SPECIAL INTEREST

Appointment of Guardian ad Litem for Minor Victims

The committee is concerned for the welfare of minor, military dependents who are victims of an alleged sex-related offense. 

The committee acknowledges the Department of Defense’s continued efforts to implement services in support of service 

members who are victims of sexual assault and further, to expand some of these services to dependents who are victims. 

However, the committee remains concerned that there is not an adequate mechanism within the military court-martial 

process to represent the best interests of minor victims following an alleged sex-related offense.

Therefore, not later than 180 days after the date of the enactment of this Act, the Defense Advisory Committee on 

Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces shall submit to the Committees on the 

Armed Services of the Senate and the House of Representatives a report that evaluates the need for, and the feasibility of, 

establishing a process under which a guardian ad litem may be appointed to represent the interests of a victim of an alleged 

sex-related offense (as that term is defined in section 1044e(g) of title 10, United States Code) who has not attained the age 

of 18 years.
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APPENDIX B: COMMITTEE CHARTER AND BALANCE PLAN

APPENDIX B. COMMITTEE CHARTER AND BALANCE PLAN

Charter 

Defense Advisory Committee on Investigation, Prosecution, and Defense of 

Sexual Assault in the Armed Forces

1

1. Committee’s Official Designation: The committee shall be known as the Defense Advisory

Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces

(“the Committee”).

2. Authority: The Secretary of Defense, pursuant to section 546 of the Carl Levin and Howard P.

“Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (“the FY 2015

NDAA”) (Public Law 113-291), as modified by section 537 of the National Defense

Authorization Act for Fiscal Year 2016 (Public Law 114-92), and in accordance with the

provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix) and

41 C.F.R. § 102-3.50(a), established this non-discretionary advisory committee.

3. Objectives and Scope of Activities: Pursuant to section 546(c)(1) of the FY 2015 NDAA, will

advise the Secretary of Defense and the Deputy Secretary of Defense on the investigation,

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

sexual misconduct involving members of the Armed Forces.

4. Description of Duties: Pursuant to section 546(c)(2) and (d) of the FY 2015 NDAA, the

Committee, not later than March 30 of each year, will submit to the Secretary of Defense

through the General Counsel for the Department of Defense (GC DoD), and the Committees

on Armed Services of the Senate and House of Representatives, a report describing the results

of the activities of the Committee pursuant to section 546 of the FY 2015 NDAA, as amended,

during the preceding year. The Committee will review, on an ongoing basis, cases involving

allegations of rape, forcible sodomy, sexual assault, and other sexual misconduct involving

members of the Armed Forces.

Pursuant to Section 547 of the National Defense Authorization Act for Fiscal Year 2019

(Public Law 115-232), not later than September 30, 2019, and not less frequently than once

every two years thereafter, the Secretary of Defense, acting through the Committee, shall

submit to the congressional defense committees a report that includes, with respect to the

period of two years preceding the date of the submittal of the report, the following:

(1) The number of instances in which a covered individual was accused of misconduct or

crimes considered collateral to the investigation of a sexual assault committed against the

individual.

(2) The number of instances in which adverse action was taken against a covered individual

who was accused of collateral misconduct or crimes as described in paragraph (1).

(3) The percentage of investigations of sexual assaults that involved an accusation or adverse

action against a covered individual as described in paragraphs (1) and (2).

The term “covered individual” means an individual who is identified as a victim of a sexual 

assault in the case files of a military criminal investigative organization. 
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

Charter 

Defense Advisory Committee on Investigation, Prosecution, and Defense of 

Sexual Assault in the Armed Forces

2

Pursuant to section 540I(c) of the of the National Defense Authorization Act for Fiscal Year 

2020 (“the FY 2020 NDAA”) (Public Law 116-92), not later than December 20, 2020, the 

Committee shall submit to the Secretary of Defense and the Committees on Armed Services 

of the Senate and House of Representatives a report setting forth: 

(1) A review and assessment, by fiscal year, of the race and ethnicity of members of the

Armed Forces accused of a penetrative sexual assault offense or contact sexual assault

offense in an unrestricted report made pursuant to Department of Defense Instruction

6495.02, including an unrestricted report involving a spouse or intimate partner, in all

cases completed in each fiscal year assessed.

(2) A review and assessment, by fiscal year, of the race and ethnicity of members of the

Armed Forces against whom charges were preferred pursuant to Rule for Courts-Martial

307 for a penetrative sexual assault offense or contact sexual assault offense in all cases

completed in each fiscal year assessed.

(3) A review and assessment, by fiscal year, of the race and ethnicity of members of the

Armed Forces who were convicted of a penetrative sexual assault offense or contact

sexual assault offense in all cases completed in each fiscal year assessed.

The report shall include such recommendations for legislative or administrative action as the 

committee considers appropriate in light of such results. 

Pursuant to section 540K(d) of the FY 2020 NDAA, the Secretary of Defense shall consult 

with the Committee on a report to be submitted by the Secretary to the Committees on Armed 

Services of the Senate and House of Representatives not later than June 17, 2020, making 

findings and recommendations on the feasibility and advisability of a policy for the Department 

of Defense that would permit a victim of a sexual assault, that is or may be investigated as 

a result of a communication described in 540K(b), which victim is a member of the Armed 

Forces or an adult dependent of a member of the Armed Forces, to have the reporting on the 

sexual assault be treated as a restricted report without regard to the party initiating or 

receiving such communication. 

5. Agency or Official to Whom the Committee Reports: The Committee will report to the

Secretary and Deputy Secretary of Defense, through the GC DoD.

6. Support: The DoD, through the GC DoD, the Washington Headquarters Services, and the DoD

Components, provides support for the Committee and ensures compliance with requirements

of the FACA, the Government in the Sunshine Act of 1976 (“the Sunshine Act”) (5 U.S.C. §

552b), governing Federal statutes and regulations, and DoD policy and procedures.

7. Estimated Annual Operating Costs and Staff Years: The estimated annual operating costs, to

include travel, meetings, and contract support, are approximately $2,810,500. The estimated

annual personnel cost to the DoD is 15.0 full-time equivalents.
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APPENDIX B: COMMITTEE CHARTER AND BALANCE PLAN

Charter 

Defense Advisory Committee on Investigation, Prosecution, and Defense of 

Sexual Assault in the Armed Forces

3

8. Designated Federal Officer: The Committee’s Designated Federal Officer (DFO) shall be a 

full-time or permanent part-time DoD civilian officer or employee or member of the Armed 

Forces, designated in accordance with established DoD policy and procedures. 

The Committee’s DFO is required to attend all Committee and subcommittee meetings for the 

entire duration of each and every meeting. However, in the absence of the Committee’s DFO, 

a properly approved Alternate DFO, duly designated to the Committee in accordance with DoD 

policy and procedures, shall attend the entire duration of all of the Committee or subcommittee 

meetings.

The DFO, or the Alternate DFO, approves and calls all Committee and subcommittee 

meetings; prepares and approves all meeting agendas; and adjourns any meeting when the 

DFO, or the Alternate DFO, determines adjournment to be in the public’s interest or required 

by governing regulations or DoD policy and procedures.

9. Estimated Number and Frequency of Meetings: The Committee shall meet at the call of the 

Committee’s DFO, in consultation with the Committee’s Chair and the GC DoD. The 

Committee will meet at a minimum of once per year.

10. Duration The need for this advisory function is on a continuing basis; however, this charter is 

subject to renewal every two years. 

11. Termination: In accordance with sections 546(e)(1) and (2) of the FY 2015 NDAA, as modified 

by section 535 of the FY 2020 NDAA, the Committee will terminate on February 28, 2026, 

ten years after the Committee was established, unless the Secretary of Defense determines that 

continuation of the Committee after that date is advisable and appropriate. If the Secretary of 

Defense determines to continue the Committee after that date, the Secretary of Defense will

submit to the President and the Committees on Armed Services of the Senate and House of 

Representatives a report describing the reasons for that determination and specifying the new 

termination date for the Committee.

12. Membership and Designation: Pursuant to section 546(b) of the FY 2015 NDAA, the 

Committee will be composed of no more than 20 members. Committee members selected will

have experience with the investigation, prosecution, and defense of allegations of sexual 

assault offenses. Members of the Committee may include Federal and State prosecutors, 

judges, law professors, and private attorneys. Members of the Armed Forces serving on active 

duty may not serve as members of the Committee. 

The appointment of Committee members will be approved by the Secretary of Defense, the 

Deputy Secretary of Defense, or the Chief Management Office of the Department of Defense 

(CMO) (“the DoD Appointing Authorities”), for a term of service of one-to-four years, with 

annual renewals, in accordance with DoD policy and procedures. No member, unless approved 

by the DoD Appointing Authorities, may serve more than two consecutive terms of service on 

the Committee, to include its subcommittees, or serve on more than two DoD Federal advisory 

committees at one time. 
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

Charter 

Defense Advisory Committee on Investigation, Prosecution, and Defense of 

Sexual Assault in the Armed Forces

4

Committee members who are not full-time or permanent part-time Federal civilian officers or 

employees, or members of the Armed Forces, shall be appointed as experts or consultants 

pursuant to 5 U.S.C. § 3109 to serve as special government employee (SGE) members. 

Committee members who are full-time or permanent part-time Federal civilian officers or 

employees, or members of the Armed Forces, shall be appointed pursuant to 41 C.F.R. § 102-

3.130(a) to serve as regular government employee (RGE) members.

Committee members are appointed to provide advice on the basis of his or her best judgment 

without representing any particular points of view and in a manner that is free from conflict of 

interest.

The DoD Appointing Authorities shall appoint the Committee’s Chair from among the 

membership previously approved, in accordance with DoD policy and procedures, for a oneto-two year term of service, with annual renewal, which shall not exceed the member’s 

approved Committee appointment.

Except for reimbursement of official Committee-related travel and per diem, Committee 

members serve without compensation.

13. Subcommittees: The DoD, when necessary and consistent with the Committee’s mission and 

DoD policy and procedures, may establish subcommittees, task forces, or working groups to 

support the Committee. Establishment of subcommittees shall be based upon a written 

determination, to include terms of reference, by the DoD Appointing Authorities or the GC 

DoD, as the DoD Sponsor. All subcommittees operate under the provisions of the FACA, the 

Sunshine Act, governing Federal statutes and regulations, and DoD policy and procedures.

Subcommittees shall not work independently of the Committee and shall report all their advice 

and recommendations solely to the Committee for its thorough discussion and deliberation at 

a properly noticed and open meeting, subject to the Sunshine Act. Subcommittees have no 

authority to make decisions or recommendations, verbally or in writing, on behalf of the 

Committee. No subcommittee nor any of its members may provide updates or report, verbally 

or in writing, directly to the DoD or to any Federal officers or employees. If a majority of 

Committee members are appointed to a particular subcommittee, then that subcommittee may 

be required to operate pursuant to the same FACA notice and openness requirements governing 

the Committee’s operations.

Individual appointments to serve on these subcommittees shall be approved by the DoD 

Appointing Authorities for a term of service of one-to-four years, subject to annual renewals, 

in accordance with DoD policy and procedures. No member shall serve more than two 

consecutive terms of service on the subcommittee without prior approval from the DoD 

Appointing Authorities. Subcommittee members, who are not full-time or permanent part-time 

Federal civilian officers or employees, or members of the Armed Forces, shall be appointed as 

experts or consultants pursuant to 5 U.S.C. § 3109 to serve as SGE members. Subcommittee 

members who are full-time or permanent part-time Federal civilian officers or employees, or 
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APPENDIX B: COMMITTEE CHARTER AND BALANCE PLAN

Charter 

Defense Advisory Committee on Investigation, Prosecution, and Defense of 

Sexual Assault in the Armed Forces

5

members of the Armed Forces, shall be appointed pursuant to 41 C.F.R. § 102-3.130(a) to

serve as RGE members.

The DoD Appointing Authorities shall appoint the subcommittee leadership from among the 

membership previously appointed to serve on the subcommittee in accordance with DoD 

policy and procedures, for a one-to-two year term of service, with annual renewal, which shall 

not exceed the member’s approved term of service.

Each subcommittee member is appointed to provide advice on behalf of his or her best 

judgment without representing any particular point of view and in a manner that is free from 

conflicts of interest.

With the exception of reimbursement for travel and per diem as it pertains to official travel 

related to the Committee or its subcommittees, subcommittee members shall serve without 

compensation.

Currently, the GC DoD has approved three subcommittees to the Committee. All work 

performed by these subcommittee will be sent to the Committee for its thorough deliberation 

and discussion at a properly noticed and open meeting, subject to the Sunshine Act.

1) Case Review Subcommittee of the Defense Advisory Committee on Investigation,

Prosecution, and Defense of Sexual Assault in the Armed Forces—composed of not more

than 15 members to assess and make recommendations related to the investigation,

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

sexual misconduct involving members of the Armed Forces based on its review of cases

involving such allegations.

2) Data Subcommittee of the Defense Advisory Committee on Investigation, Prosecution, and

Defense of Sexual Assault in the Armed Forces—composed of not more than 15 members

to assess and make recommendations related to the investigation, prosecution, and defense

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

involving members of the Armed Forces based on its collection and analysis of data from

cases involving such allegations.

3) Policy Subcommittee of the Defense Advisory Committee on Investigation, Prosecution,

and Defense of Sexual Assault in the Armed Forces—composed of not more than 15

members to assess and make recommendations related to the investigation, prosecution,

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

misconduct involving members of the Armed Forces based on its review of Department of

Defense policies, Military Department policies, and Uniform Code of Military Justice

provisions applicable to such allegations.

14. Recordkeeping: The records of the Committee and its subcommittees will be handled in

accordance with Section 2, General Record Schedule 6.2, and governing DoD policies and
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

Charter 

Defense Advisory Committee on Investigation, Prosecution, and Defense of 

Sexual Assault in the Armed Forces

6

procedures. These records will be available for public inspection and copying, subject to the 

Freedom of Information Act of 1966 (5 U.S.C. § 552, as amended).

15. Filing Date: February 16, 2020
B-7

APPENDIX B: COMMITTEE CHARTER AND BALANCE PLAN

1

Membership Balance Plan

Defense Advisory Committee on Investigation, Prosecution, and Defense of 

Sexual Assault in the Armed Forces

Agency: Department of Defense (DoD)

1. Authority: The Secretary of Defense, pursuant to section 546 of the Carl Levin and Howard P.

“Buck” McKeon National Defense Authorization Act for Fiscal Year 2015 (“the FY 2015 NDAA”)

(Public Law 113-291), as modified by section 537 of the National Defense Authorization Act for

Fiscal Year 2016 (Public Law 114-92), and in accordance with the provisions of the Federal

Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix) and 41 C.F.R. § 102-3.50(a),

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

Assault in the Armed Forces (“the Committee”), a non-discretionary advisory committee.

2. Mission/Function: The Committee, pursuant to section 546(c)(1) of the FY 2015 NDAA, will

advise the Secretary of Defense and the Deputy Secretary of Defense on the investigation,

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

misconduct involving members of the Armed Forces.

Pursuant to section 546(c)(2) and (d) of the FY 2015 NDAA, the Committee, not later than March

30 of each year, will submit to the Secretary of Defense through the General Counsel for the

Department of Defense (GC DoD), and the Committees on Armed Services of the Senate and House

of Representatives, a report describing the results of the activities of the Committee pursuant to

section 546 of the FY 2015 NDAA, as amended, during the preceding year. The Committee will

review, on an ongoing basis, cases involving allegations of rape, forcible sodomy, sexual assault,

and other sexual misconduct involving members of the Armed Forces.

Pursuant to Section 547 of the National Defense Authorization Act for Fiscal Year 2019 (Public

Law 115-232), not later than September 30, 2019, and not less frequently than once every two years

thereafter, the Secretary of Defense, acting through the Committee, shall submit to the congressional

defense committees a report that includes, with respect to the period of two years preceding the date

of the submittal of the report, the following:

(1) The number of instances in which a covered individual was accused of misconduct or crimes

considered collateral to the investigation of a sexual assault committed against the individual.

(2) The number of instances in which adverse action was taken against a covered individual who

was accused of collateral misconduct or crimes as described in paragraph (1).

(3) The percentage of investigations of sexual assaults that involved an accusation or adverse action

against a covered individual as described in paragraphs (1) and (2).

The term “covered individual” means an individual who is identified as a victim of a sexual assault 

in the case files of a military criminal investigative organization. 

Pursuant to section 540I(c) of the of the National Defense Authorization Act for Fiscal Year 2020 

(“the FY 2020 NDAA”) (Public Law 116-92), not later than December 20, 2020, the Committee 

shall submit to the Secretary of Defense and the Committees on Armed Services of the Senate and 

House of Representatives a report setting forth: 
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

2

Membership Balance Plan

Defense Advisory Committee on Investigation, Prosecution, and Defense of 

Sexual Assault in the Armed Forces

(1) A review and assessment, by fiscal year, of the race and ethnicity of members of the Armed

Forces accused of a penetrative sexual assault offense or contact sexual assault offense in an

unrestricted report made pursuant to Department of Defense Instruction 6495.02, including an

unrestricted report involving a spouse or intimate partner, in all cases completed in each fiscal

year assessed.

(2) A review and assessment, by fiscal year, of the race and ethnicity of members of the Armed

Forces against whom charges were preferred pursuant to Rule for Courts-Martial 307 for a

penetrative sexual assault offense or contact sexual assault offense in all cases completed in

each fiscal year assessed.

(3) A review and assessment, by fiscal year, of the race and ethnicity of members of the Armed

Forces who were convicted of a penetrative sexual assault offense or contact sexual assault

offense in all cases completed in each fiscal year assessed.

The report shall include such recommendations for legislative or administrative action as 

the Committee considers appropriate in light of such results. 

Pursuant to section 540K(d) of the FY 2020 NDAA, the Committee shall be consulted by the 

Secretary of Defense on a report to be submitted by the Secretary to the Committees on Armed 

Services of the Senate and House of Representatives not later than June 17, 2020, making findings 

and recommendations on the feasibility and advisability of a policy for the Department of Defense 

that would permit a victim of a sexual assault, that is or may be investigated as a result of a 

communication described in 540k(b), which victim is a member of the Armed Forces or an adult 

dependent of a member of the Armed Forces, to have the reporting on the sexual assault be treated 

as a restricted report without regard to the party initiating or receiving such communication. 

3. Points of View: Pursuant to section 546(b) of the FY 2015 NDAA, the Committee will be

composed of no more than 20 members. Committee members selected will have experience with

the investigation, prosecution, and defense of allegations of sexual assault offenses. Members of

the Committee may include Federal and State prosecutors, judges, law professors, and private

attorneys. Members of the Armed Forces serving on active duty may not serve as members of the

Committee.

Committee members, who are not full-time or permanent part-time Federal civilian officers or

employees, or members of the Armed Forces, shall be appointed as experts or consultants pursuant

to 5 U.S.C. § 3109, to serve as special government employee (SGE) members. Committee members

who are full-time or permanent part-time Federal civilian officers or employees, or members of the

Armed Forces, shall be appointed pursuant to 41 C.F.R. § 102-3.130(a) to serve as regular

government employee (RGE) members.

All Committee members are appointed to provide advice on the basis of their best judgment without

representing any particular points of view and in a manner that is free from conflict of interest.
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APPENDIX B: COMMITTEE CHARTER AND BALANCE PLAN

3

Membership Balance Plan

Defense Advisory Committee on Investigation, Prosecution, and Defense of 

Sexual Assault in the Armed Forces

4. Other Balance Factors: N/A

5. Candidate Identification Process: The DoD, in selecting potential candidates for the Committee,

reviews the educational and professional credentials of individuals with extensive professional 

experience in the points of view described above. Potential candidates may be gathered and 

identified by the General Council of the Department of Defense (GC DoD) and the Committee’s 

staff.

Once potential candidates are identified, the Committee’s Designated Federal Officer (DFO), 

working with the various stakeholders to include senior DoD officers and employees, reviews the 

credentials of each individual and narrows the list of potential candidates before forwarding the list 

to the GC DoD for review. During his or her review, the GC DoD strives to achieve a balance 

between the professional credentials of the individuals and the near-term subject matters that shall 

be reviewed by the Committee to achieve expertise in points of view regarding anticipated topics.

Once the GC DoD has narrowed the list of candidates and before formal nomination to the DoD 

Appointing Authorities, the list of potential candidates undergoes a review by the DoD Office of 

General Counsel and the Office of the Advisory Committee Management Officer (ACMO) to ensure 

compliance with federal and DoD governance requirements, including compliance with the 

Committee’s statute, charter, and membership balance plan. Following this review, the GC DoD 

forwards to the list of nominees to the ACMO for approval by the DoD Appointing Authorities.

Following approval by the DoD Appointing Authorities, the candidates are required to complete the 

necessary appointment paperwork, to include meeting ethics requirements stipulated by the Office 

of Government Ethics for advisory committee members. 

All Committee appointments are for a one-to-four year term of service, with annual renewals. No 

member, unless approved in a policy deviation by the DoD Appointing Authorities, may serve more 

than two consecutive terms of service on the Committee, including its subcommittees, or serve on 

more than two DoD Federal Advisory committees at one time.

Committee membership vacancies will be filled in the same manner as described above. Individuals 

being considered for appointment to the Committee, or any subcommittee, may not participate in 

any Committee or subcommittee work until his or her appointment has been approved by the DoD 

Appointment Authorities and the individual concerned is on-boarded in accordance with DoD policy 

and procedures. 

6. Subcommittee Balance: The DoD, when necessary and consistent with the Committee’s mission 

and DoD policies and procedures, may establish subcommittees, task forces, or working groups to 

support the Committee.

Currently, the DoD has approved three subcommittees to the Committee. Subcommittee members 

must will have experience with the investigation, prosecution, and defense of allegations of sexual 

assault offenses.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

4

Membership Balance Plan

Defense Advisory Committee on Investigation, Prosecution, and Defense of 

Sexual Assault in the Armed Forces

1) Case Review Subcommittee of the Defense Advisory Committee on Investigation, Prosecution,

and Defense of Sexual Assault in the Armed Forces—composed of not more than 15 members

to assess and make recommendations related to the investigation, prosecution, and defense of

allegations of rape, forcible sodomy, sexual assault, and other sexual misconduct involving

members of the Armed Forces based on its review of cases involving such allegations.

2) Data Subcommittee of the Defense Advisory Committee on Investigation, Prosecution, and

Defense of Sexual Assault in the Armed Forces—composed of not more than 15 members to

assess and make recommendations related to the investigation, prosecution, and defense of

allegations of rape, forcible sodomy, sexual assault, and other sexual misconduct involving

members of the Armed Forces based on its collection and analysis of data from cases involving

such allegations.

3) Policy Subcommittee of the Defense Advisory Committee on Investigation, Prosecution, and

Defense of Sexual Assault in the Armed Forces—composed of not more than 15 members to

assess and make recommendations related to the investigation, prosecution, and defense of

allegations of rape, forcible sodomy, sexual assault, and other sexual misconduct involving

members of the Armed Forces based on its review of Department of Defense policies, Military

Department policies, and Uniform Code of Military Justice provisions applicable to such

allegations.

Individuals considered for appointment to any subcommittee of the Committee may come from 

members of the Committee or from new nominees, as recommended by the GC DoD and based upon 

the subject matters under consideration. Pursuant to DoD policy and procedures, the GC DoD shall 

follow the same procedures used for selecting and nominating individuals for appointment 

consideration by the DoD Appointing Authorities. Individuals being considered for appointment to 

any subcommittee of the Committee cannot participate in any Committee or subcommittee work 

until his or her appointment has been approved by the DoD Appointment Authorities, and the 

individual concerned is on-boarded according to DoD policy and procedures. 

Subcommittee members shall be appointed for a term of service of one-to-four years, subject to 

annual renewals; however, no member shall serve more than two consecutive terms of service on 

the subcommittee, without prior approval by the Appointing Authorities. Subcommittee 

members, if not full-time or permanent part-time Federal civilian officers or employees, or 

members of the Armed Forces, shall be appointed as experts or consultants pursuant to 

5 U.S.C. § 3109 to serve as SGE members. Subcommittee members who are full-time or

permanent part-time Federal civilian officers or employees, or members of the Armed Forces,

shall be appointed pursuant to 41 C.F.R. § 10-3.130(a) to serve as RGE members.

7. Other: As nominees are considered for appointment to the Committee, the DoD adheres to the Office

of Management and Budget’s Revised Guidance on Appointment of Lobbyists to Federal Advisory

Committees, Boards, and Commissions (79 FR 47482; August 13, 2014) and the rules and

regulations issued by the Office of Government Ethics.

8. Date Prepared: February 16, 2020
C-1

APPENDIX C: COMMITTEE MEMBERS

APPENDIX C. COMMITTEE MEMBERS

MS. MARTHA S. BASHFORD, CHAIR

Martha Bashford was for 40 years the chief of the New York County District Attorney’s Office 

Sex Crimes Unit, which was the first of its kind in the country. Previously she was co-chief of the 

Forensic Sciences/Cold Case Unit, where she examined unsolved homicide cases that might now 

be solvable through DNA analysis. Ms. Bashford was also co-chief of the DNA Cold Case 

Project, which used DNA technology to investigate and prosecute unsolved sexual assault cases. 

She indicted assailants identified through the FBI’s Combined DNA Index System (CODIS) and 

obtained John Doe DNA profile indictments to stop the statute of limitations where no suspect 

had yet been identified. She is a Fellow in the American Academy of Forensic Sciences. Ms. Bashford graduated 

from Barnard College in 1976 (summa cum laude) and received her J.D. degree from Yale Law School in 1979. She 

is a Fellow in both the American College of Trial Lawyers and the American Academy of Forensic Sciences.

MAJOR GENERAL MARCIA M. ANDERSON, U.S. ARMY, RETIRED

Marcia Anderson was the Clerk of Court for the Bankruptcy Court–Western District of 

Wisconsin from 1998 to 2019, where she was responsible for the management of the budget and 

administration of bankruptcy cases for 44 counties in western Wisconsin. Major General 

Anderson retired in 2016 from a distinguished career in the U.S. Army Reserve after 36 years of 

service, which included serving as the Deputy Commanding General of the Army’s Human 

Resources Command at Fort Knox, Kentucky. In 2011, she became the first African American 

woman in the history of the U.S. Army to achieve the rank of major general. Her service 

culminated with an assignment at the Pentagon as the Deputy Chief, Army Reserve (DCAR). As the DCAR, she 

represented the Chief, Army Reserve, and had oversight for the planning, programming, and resource management 

for the execution of an Army Reserve budget of $8 billion that supported more than 225,000 Army Reserve 

soldiers, civilians, and their families. She is a graduate of the Rutgers University School of Law, the U.S. Army War 

College, and Creighton University. 

THE HONORABLE LEO I. BRISBOIS

Leo I. Brisbois has been a U.S. Magistrate Judge for the District of Minnesota chambered in 

Duluth, Minnesota, since 2010. Prior to his appointment to the bench, Judge Brisbois served as an 

Assistant Staff Judge Advocate, U.S. Army, from 1987 through 1998, both on active duty and then 

in the reserves; his active duty service included work as a trial counsel and as an administrative law 

officer, both while serving in Germany. From 1991 to 2010, Judge Brisbois was in private practice 

with the Minneapolis, Minnesota, firm of Stich, Angell, Kreidler, Dodge & Unke, where his 

practice included all aspects of litigation and appeals involving the defense of civil claims in state 

and federal courts. Judge Brisbois has also previously served on the Civil Rules and Racial Fairness in the Courts 

advisory committees established by the Minnesota State Supreme Court, and he has served on the Minnesota 

Commission on Judicial Selection. From 2009 to 2010, Judge Brisbois was the first person of known Native American 

heritage to serve as President of the more than 16,000–member Minnesota State Bar Association.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

MS. KATHLEEN B. CANNON

Kathleen Cannon is a criminal defense attorney in Vista, California, specializing in serious felony 

and high-profile cases. Prior to entering private practice in 2011, Ms. Cannon was a public 

defender for over 30 years, in Los Angeles and San Diego Counties. Over the course of her career, 

Ms. Cannon supervised branch operations and training programs within the offices and handled 

thousands of criminal cases. She has completed hundreds of jury trials, including those involving 

violent sexual assault and capital murder with special circumstances. Since 1994, Ms. Cannon has 

taught trial advocacy as an adjunct professor of law at California Western School of Law in San 

Diego, and has been on the faculty of the National Institute of Trial Advocacy as a team leader and teacher. She is 

past-President and current Training Coordinator for the California Public Defenders’ Association, providing 

educational seminars for criminal defense attorneys throughout the state of California. Ms. Cannon has lectured on 

battered women syndrome evidence at the Marine Corps World Wide Training Conference at Marine Corps Recruit 

Depot (MCRD), San Diego, and was a small-group facilitator for the Naval Justice School course “Defending 

Sexual Assault Cases” in San Diego. Ms. Cannon has received numerous awards, including Top Ten Criminal 

Defense Attorney in San Diego, Lawyer of the Year from the North County Bar Association, and Attorney of the 

Year from the San Diego County Public Defender’s Office.

MS. MARGARET A. GARVIN

Margaret “Meg” Garvin, M.A., J.D., is the executive director of the National Crime Victim Law 

Institute (NCVLI), where she has worked since 2003. She is also a clinical professor of law at 

Lewis & Clark Law School, where NCVLI is located. In 2014, Ms. Garvin was appointed to the 

Victims Advisory Group of the United States Sentencing Commission, and during 2013–14, she 

served on the Victim Services Subcommittee of the Response Systems to Adult Sexual Assault 

Crimes Panel of the U.S. Department of Defense. She has served as co-chair of the American Bar 

Association’s Criminal Justice Section Victims Committee, as co-chair of the Oregon Attorney 

General’s Crime Victims’ Rights Task Force, and as a member of the Legislative & Public Policy Committee of the 

Oregon Attorney General’s Sexual Assault Task Force. Ms. Garvin received the John W. Gillis Leadership Award 

from National Parents of Murdered Children in August 2015. Prior to joining NCVLI, Ms. Garvin practiced law in 

Minneapolis, Minnesota, and clerked for the Eighth Circuit Court of Appeals. She received her bachelor of arts 

degree from the University of Puget Sound, her master of arts degree in communication studies from the University 

of Iowa, and her J.D. from the University of Minnesota.

THE HONORABLE PAUL W. GRIMM

Paul W. Grimm serves as a U.S. District Judge for the District of Maryland. Previously, he served 

as a U.S. Magistrate Judge and as Chief Magistrate Judge for the District of Maryland. In 2009, 

the Chief Justice of the United States appointed Judge Grimm to serve as a member of the Civil 

Rules Advisory Committee, where he served for six years and chaired the Discovery 

Subcommittee. Before his appointment to the court, Judge Grimm was in private practice for 13 

years, handling commercial litigation. Prior to that, he served as an Assistant Attorney General 

for Maryland, an Assistant States Attorney for Baltimore County, Maryland, and an active duty 

and Reserve Army Judge Advocate General’s Corps officer, retiring as a lieutenant colonel in 2001. Judge Grimm 

has served as an adjunct professor of law at the University of Maryland School of Law and at the University of 

Baltimore School of Law, and has published many articles on evidence and civil procedure.
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APPENDIX C: COMMITTEE MEMBERS

MR. A. J. KRAMER

A. J. Kramer has been the Federal Public Defender for the District of Columbia since 1990. He 

was the Chief Assistant Federal Public Defender in Sacramento, California, from 1987 to 1990, 

and an Assistant Federal Public Defender in San Francisco, California, from 1980 to 1987. He 

was a law clerk for the Honorable Proctor Hug, Jr., U.S. Court of Appeals for the Ninth Circuit, 

Reno, Nevada, from 1979 to 1980. He received a B.A. from Stanford University in 1975, and a 

J.D. from Boalt Hall School of Law at the University of California at Berkeley in 1979. Mr. 

Kramer taught legal research and writing at Hastings Law School from 1983 to 1988. He is a 

permanent faculty member of the National Criminal Defense College in Macon, Georgia. He is a Fellow of the 

American College of Trial Lawyers and a member of the ABA Criminal Justice System Council. He was a member 

of the National Academy of Sciences Committee on Scientific Approaches to Understanding and Maximizing the 

Validity and Reliability of Eyewitness Identification in Law Enforcement. He was a member of the Courts of the 

Judicial Conference of the United States’ Advisory Committee on Evidence Rules from 2013 to 2019. In July 2019, 

he received the American Inns of Court Award for Professionalism for the D.C. Circuit. In December 2013, he 

received the Annice M. Wagner Pioneer Award from the Bar Association of the District of Columbia.

MS. JENNIFER GENTILE LONG

Jennifer Gentile Long (M.G.A., J.D.) is CEO and co-founder of AEquitas and an adjunct 

professor at Georgetown University Law School. She served as an Assistant District Attorney in 

Philadelphia specializing in sexual violence, child abuse, and intimate partner violence. She was a 

senior attorney and then Director of the National Center for the Prosecution of Violence Against 

Women at the American Prosecutors Research Institute. She publishes articles, delivers trainings, 

and provides expert case consultation on issues relevant to gender-based violence and human 

trafficking nationally and internationally. Ms. Long serves as an Advisory Committee member of 

the American Law Institute’s Model Penal Code Revision to Sexual Assault and Related Laws and as an Editorial 

Board member of the Civic Research Institute for the Sexual Assault and Domestic Violence Reports. She graduated 

from Lehigh University and the University of Pennsylvania Law School and Fels School of Government.

MR. JAMES P. MARKEY

Jim Markey has over 30 years of law enforcement experience with the Phoenix Police 

Department. Serving in a variety of positions, Mr. Markey was recognized with more than 30 

commendations and awards. For over 14 years he directly supervised the sexual assault unit, 

which is part of a multidisciplinary sexual assault response team co-located in the City of Phoenix 

Family Advocacy Center. Mr. Markey oversaw the investigation of more than 7,000 sexual 

assaults, including more than 150 serial rape cases. In 2000, he was able to secure Violence 

Against Women grant funding to design, develop, and supervise a first-of-its-kind sexual assault 

cold case team with the City of Phoenix. This team has been successful in reviewing nearly 4,000 unsolved sexual 

assault cases dating back over 25 years. For the past 15 years Mr. Markey has been a certified and nationally 

recognized trainer, delivering in-person and online webinar training for numerous criminal justice organizations on 

sexual assault investigations and response. Currently, he is employed with the Research Triangle Institute (RTI) 

located in Durham North as a Senior Law Enforcement Specialist. His work in the Applied Justice Research Unit 

includes assistance for the DOJ Bureau of Justice Assistance Sexual Assault Kit Initiative (SAKI), providing technical 

assistance and training to 54 SAKI grantees across the United States. He also developed and directs the SAKI 
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

– Sexual Assault Unit Assessment (SAUA) Team; this team has conducted independent and comprehensive reviews 

for four major police agencies, assessing a range of areas in their response to sexual assault. In addition to the 

DACI-PAD, Mr. Markey currently serves as a member of the National Institute of Justice (NIJ) Sexual Assault 

Forensic Evidence Reporting (SAFER) Working Group and Editorial Team, NIJ Cold Case Working Group, 

Arizona Commission on Victims in the Courts (COVIC), Arizona Forensic Science Advisory Committee, and 

Massage Envy Franchising’s Safety Advisory Council. Jim continues to work as a trainer and facilitator in the area of 

sexual violence for the International Association of Chiefs of Police (IACP) and the International Association of 

College Law Enforcement Administrators (IACLEA). 

DR. JENIFER MARKOWITZ

Jenifer Markowitz is a forensic nursing consultant who specializes in issues related to sexual 

assault, domestic violence, and strangulation, including medical-forensic examinations and 

professional education and curriculum development. In addition to teaching at workshops and 

conferences around the world, she provides expert testimony, case consultation, and technical 

assistance and develops training materials, resources, and publications. A forensic nurse examiner 

since 1995, Dr. Markowitz regularly serves as faculty and as an expert consultant for the Judge 

Advocate General’s (JAG) Corps for the U.S. Army, Navy, Air Force, Marine Corps, and Coast 

Guard. Past national activities include working with the Army Surgeon General’s office to develop a curriculum for 

sexual assault medical-forensic examiners working in military treatment facilities (subsequently adopted by the Navy 

and Air Force); with the U.S. Department of Justice Office on Violence Against Women (OVW) to develop a 

national protocol and training standards for sexual assault medical-forensic examinations; with the Peace Corps to 

assess the agency’s multidisciplinary response to sexual assault; with the U.S. Department of Defense to revise the 

military’s sexual assault evidence collection kit and corresponding documentation forms; and as an Advisory Board 

member for the National Sexual Violence Resource Center. In 2004, Dr. Markowitz was named a Distinguished 

Fellow of the International Association of Forensic Nurses (IAFN); in 2012, she served as IAFN’s President.

CHIEF MASTER SERGEANT OF THE AIR FORCE RODNEY J. MCKINLEY, U.S. AIR FORCE, 

RETIRED

Chief Master Sergeant of the Air Force Rodney J. McKinley represented the highest enlisted level 

of leadership and, as such, provided direction for the enlisted corps and represented their 

interests, as appropriate, to the American public and to those in all levels of government. He 

served as the personal advisor to the Chief of Staff and the Secretary of the Air Force on all issues 

regarding the welfare, readiness, morale, and proper utilization and progress of the enlisted force. 

Chief McKinley is the 15th chief master sergeant appointed to the highest noncommissioned 

officer position. His background includes various duties in medical and aircraft maintenance, and 

he served 10 years as a first sergeant. He also served as a command chief master sergeant at wing, numbered Air 

Force, and major command levels. He is currently the co-chair of the Air Force Retiree Council and frequently is a 

guest speaker at bases across the Air Force. He is an honors graduate of St. Leo College, Florida, and received his 

master’s degree in human relations from the University of Oklahoma.
C-5

APPENDIX C: COMMITTEE MEMBERS

BRIGADIER GENERAL JAMES A. SCHWENK, U.S. MARINE CORPS, RETIRED

BGen Schwenk was commissioned as an infantry officer in the Marine Corps in 1970. After 

serving as a platoon commander and company commander, he attended law school at the 

Washington College of Law, American University, and became a judge advocate. As a judge 

advocate he served in the Office of the Secretary of Defense, the Office of the Secretary of the 

Navy, and Headquarters, Marine Corps; he served as Staff Judge Advocate for Marine Forces 

Atlantic, II Marine Expeditionary Force, Marine Corps Air Bases West, and several other 

commands; and he participated in several hundred courts-martial and administrative discharge 

boards. He represented the Department of Defense on the television show American Justice, and represented the 

Marine Corps in a Mike Wallace segment on 60 Minutes. He retired from the Marine Corps in 2000.

Upon retirement from the Marine Corps, BGen Schwenk joined the Office of the General Counsel of the 

Department of Defense as an associate deputy general counsel. He was a legal advisor in the Pentagon on 9/11, and 

he was the primary drafter from the Department of Defense of many of the emergency legal authorities used in 

Afghanistan, Iraq, the United States, and elsewhere since that date. He was the principal legal advisor for the repeal 

of “don’t ask, don’t tell,” for the provision of benefits to same-sex spouses of military personnel, in the review of the 

murders at Fort Hood in 2009, and on numerous DoD working groups in the area of military personnel policy. He 

worked extensively with the White House and Congress, and he retired in 2014 after 49 years of federal service.

DR. CASSIA C. SPOHN

Cassia Spohn is a Regents Professor and Director of the School of Criminology and Criminal 

Justice at Arizona State University. She received a Ph.D. in political science from the University 

of Nebraska–Lincoln. Prior to joining the ASU faculty in 2006, she was a faculty member in the 

School of Criminology and Criminal Justice at the University of Nebraska at Omaha for 28 years. 

She is the author or co-author of eight books, including Policing and Prosecuting Sexual Assault: 

Inside the Criminal Justice System and How Do Judges Decide? The Search for Fairness and Equity in 

Sentencing. Her research interests include prosecutorial and judicial decision making; the 

intersections of race, ethnicity, crime, and justice; and sexual assault case processing decisions. In 2013, she received 

ASU’s Award for Leading Edge Research in the Social Sciences and was selected as a Fellow of the American Society 

of Criminology.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

MS. MEGHAN A. TOKASH

Meghan Tokash is an Assistant United States Attorney (AUSA) at the U.S. Department of Justice 

serving the Western District of New York in the violent crimes unit. For eight years she served as 

a judge advocate in the U.S. Army Judge Advocate General’s Corps, where she prosecuted a wide 

range of cases relating to homicide, rape, sexual assault, domestic violence, and child abuse. 

AUSA Tokash was selected by the Judge Advocate General of the U.S. Army to serve as one of 15 

Special Victim Prosecutors; she worked in the Army’s first Special Victim Unit at the Fort Hood 

Criminal Investigation Division Office and U.S. Army Europe/Central Command. Previously, 

AUSA Tokash served as an Army trial defense counsel and as a civilian victim-witness liaison officer for the 

Department of the Army. AUSA Tokash clerked for the United States Court of Appeals for the Armed Forces. She is 

a graduate of the Catholic University Columbus School of Law. She earned her master of laws degree in trial 

advocacy from the Beasley School of Law at Temple University, where at graduation she received the program’s 

Faculty Award.

THE HONORABLE REGGIE B. WALTON

Judge Walton was born in Donora, Pennsylvania. In 1971 he graduated from West Virginia State 

University, where he was a three-year letterman on the football team and played on the 1968 

nationally ranked conference championship team. Judge Walton received his law degree from the 

American University, Washington College of Law, in 1974.

Judge Walton assumed his current position as a U.S. District Judge for the District of Columbia 

in 2001. He was also appointed by President George W. Bush in 2004 as the Chair of the 

National Prison Rape Elimination Commission, a commission created by Congress to identify methods to 

reduce prison rape. The U.S. Attorney General substantially adopted the Commission’s recommendations for 

implementation in federal prisons; other federal, state, and local officials throughout the country are considering 

adopting the recommendations. U.S. Supreme Court Chief Justice William Rehnquist appointed Judge Walton 

in 2005 to the federal judiciary’s Criminal Law Committee, on which he served until 2011. In 2007 Chief Justice 

John Roberts appointed Judge Walton to a seven-year term as a Judge of the U.S. Foreign Intelligence Surveillance 

Court, and he was subsequently appointed Presiding Judge in 2013. He completed his term on that court on May 

18, 2014. Upon completion of his appointment to the Foreign Intelligence Surveillance Court, Judge Walton 

was appointed by Chief Justice Roberts to serve as a member of the Judicial Conference Committee on Court 

Administration and Case Management.

Judge Walton traveled to Russia in 1996 to instruct Russian judges on criminal law in a program funded by the 

U.S. Department of Justice and the American Bar Association’s Central and East European Law Initiative Reform 

Project. He is also an instructor in Harvard Law School’s Advocacy Workshop and a faculty member at the National 

Judicial College in Reno, Nevada.
D-1

APPENDIX D: COMMITTEE PROFESSIONAL STAFF 

APPENDIX D. COMMITTEE PROFESSIONAL STAFF

COMMITTEE STAFF

Colonel Steven B. Weir, USA, JAG Corps, 

Staff Director

Ms. Julie K. Carson, Deputy Staff Director 

Mr. Dale Trexler, Chief of Staff

Ms. Theresa Gallagher, Attorney-Advisor

Ms. Nalini Gupta, Attorney-Advisor

Ms. Amanda Hagy, Senior Paralegal

Ms. Patricia Ham, Attorney-Advisor

Mr. Glen Hines, Attorney-Advisor

Mr. R. Chuck Mason, Attorney-Advisor

Ms. Marguerite McKinney, Analyst

Ms. Meghan Peters, Attorney-Advisor

Ms. Stacy Powell, Senior Paralegal

Ms. Stayce Rozell, Senior Paralegal

Ms. Terri Saunders, Attorney-Advisor

Ms. Kate Tagert, Attorney-Advisor

Ms. Eleanor Vuono, Attorney-Advisor

COMMITTEE CONSULTANTS

Dr. Alice Falk, Editor

Ms. Laurel Prucha Moran, Graphic Designer

Dr. William “Bill” Wells, Criminologist

DESIGNATED FEDERAL OFFICERS

Mr. Dwight H. Sullivan 

Senior Associate Deputy General Counsel 

for Military Justice

U.S. Department of Defense 

Designated Federal Officer

Mr. David J. Gruber 

Associate Deputy General Counsel for 

Military Personnel, Readiness, and Voting

U.S. Department of Defense 

Alternate Designated Federal Officer
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
E-1

APPENDIX E: COMMITTEE RECOMMENDATIONS TO DATE

APPENDIX E. COMMITTEE RECOMMENDATIONS TO DATE

DAC-IPAD Recommendation 1 – (Mar 2018) The Secretary of Defense, the Secretary of Homeland Security, and 

the Services take action to dispel the misperception of widespread abuse of the expedited transfer policy, including 

addressing the issue in the training of all military personnel.

DAC-IPAD Recommendation 2 – (Mar 2018) The Secretary of Defense and the Secretary of Homeland Security 

identify and track appropriate metrics to monitor the expedited transfer policy and any abuses of it.

DAC-IPAD Recommendation 3 – (Mar 2018) The DoD-level and Coast Guard equivalent Family Advocacy 

Program (FAP) policy include provisions for expedited transfer of active duty Service members who are victims 

of sexual assault similar to the expedited transfer provisions in the DoD Sexual Assault Prevention and Response 

(SAPR) policy and consistent with 10 U.S.C. § 673.

DAC-IPAD Recommendation 4 – (Mar 2018) The DoD-level military personnel assignments policy (DoD 

Instruction 1315.18) and Coast Guard equivalent include a requirement that assignments personnel or commanders 

coordinate with and keep SAPR and FAP personnel informed throughout the expedited transfer, safety transfer, and 

humanitarian/compassionate transfer assignment process when the transfer involves an allegation of sexual assault.

DAC-IPAD Recommendation 5 – (Mar 2019) In developing a uniform command action form in accordance with 

section 535 of the FY19 NDAA, the Secretary of Defense (and the Secretary of Homeland Security with respect 

to the Coast Guard when not operating as a service in the Navy) should establish a standard set of options for 

documenting command disposition decisions and require the rationale for those decisions, including declinations to 

take action.

The Secretary of Defense (and the Secretary of Homeland Security with respect to the Coast Guard when not 

operating as a service in the Navy) should ensure that the standard set of options for documenting command 

disposition decisions is based on recognized legal and investigatory terminology and standards that are uniformly 

defined across the Services and accurately reflect command action source documents.

DAC-IPAD Recommendation 6 – (Mar 2019) The Secretary of Defense (and the Secretary of Homeland Security 

with respect to the Coast Guard when not operating as a service in the Navy) should require that judge advocates 

or civilian attorneys employed by the Services in a similar capacity provide advice to commanders in completing 

command disposition/action reports in order to make certain that the documentation of that decision is accurate 

and complete.

DAC-IPAD Recommendation 7 – (Mar 2019) The Secretary of Defense (and the Secretary of Homeland Security 

with respect to the Coast Guard when not operating as a service in the Navy) should provide uniform guidance to 

the Services regarding the submission of final disposition information to federal databases for sexual assault cases 

in which, after fingerprints have been submitted, the command took no action, or took action only for an offense 

other than sexual assault.

DAC-IPAD Recommendation 8 – (Mar 2019) The uniform standards and criteria developed to implement Article 

140a, UCMJ, should reflect the following best practices for case data collection:
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

a. Collect all case data only from standardized source documents (legal and investigative documents) that are 

produced in the normal course of the military justice process, such as the initial report of investigation, the 

commander’s report of disciplinary or administrative action, the charge sheet, the Article 32 report, and the 

Report of Result of Trial.

b. Centralize document collection by mandating that all jurisdictions provide the same procedural documents 

to one military justice data office/organization within DoD.

c. Develop one electronic database for the storage and analysis of standardized source documents, and locate 

that database in the centralized military justice data office/organization within DoD.

d. Collect and analyze data quarterly to ensure that both historical data and analyses are as up-to-date as 

possible.

e. Have data entered from source documents into the electronic database by one independent team of trained 

professionals whose full-time occupation is document analysis and data entry. This team should have 

expertise in the military justice process and in social science research methods, and should ensure that the 

data are audited at regular intervals.

DAC-IPAD Recommendation 9 – (Mar 2019) The source documents referenced in DAC-IPAD Recommendation 

8 should contain uniformly defined content covering all data elements that DoD decides to collect to meet the 

requirements of Articles 140a and 146, UCMJ.

DAC-IPAD Recommendation 10 – (Mar 2019) The data produced pursuant to Article 140a, UCMJ, should serve 

as the primary source for the Military Justice Review Panel’s periodic assessments of the military justice system, 

which are required by Article 146, UCMJ, and as the sole source of military justice data for all other organizations 

in DoD and for external entities.

DAC-IPAD Recommendation 11 – (Mar 2019) Article 140a, UCMJ, should be implemented so as to require 

collection of the following information with respect to allegations of both adult-victim and child-victim sexual 

offenses, within the meaning of Articles 120, 120b, and 125, UCMJ (10 U.S.C. §§ 920, 920b, and 925 (2016)):

a. A summary of the initial complaint giving rise to a criminal investigation by a military criminal investigative 

organization concerning a military member who is subject to the UCMJ, and how the complaint became 

known to law enforcement;

b. Whether an unrestricted report of sexual assault originated as a restricted report;

c. Demographic data pertaining to each victim and accused, including race and sex;

d. The nature of any relationship between the accused and the victim(s);

e. The initial disposition decision under Rule for Court-Martial 306, including the decision to take no action, 

and the outcome of any administrative action, any disciplinary action, or any case in which one or more 

charges of sexual assault were preferred, through the completion of court-martial and appellate review;

f. Whether a victim requested an expedited transfer or a transfer of the accused, and the result of that request;

g. Whether a victim declined to participate at any point in the military justice process;
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APPENDIX E: COMMITTEE RECOMMENDATIONS TO DATE

h. Whether a defense counsel requested expert assistance on behalf of a military accused, whether those 

requests were approved by a convening authority or military judge, and whether the government availed 

itself of expert assistance; and

i. The duration of each completed military criminal investigation, and any additional time taken to complete 

administrative or disciplinary action against the accused.

DAC-IPAD Recommendation 12 – (Mar 2019) The Services may retain their respective electronic case 

management systems for purposes of managing their military justice organizations, provided that

a. The Services use the same uniform standards and definitions to refer to common procedures and substantive 

offenses in the Manual for Courts-Martial, as required by Article 140a; and

b. The Services develop a plan to transition toward operating one uniform case management system across all 

of the Services, similar to the federal judiciary’s Case Management / Electronic Court Filing (CM/ECF) 

system.

DAC-IPAD Recommendation 13 – (Mar 2019) The Secretary of Defense (and the Secretary of Homeland Security 

with respect to the Coast Guard when not operating as a service in the Navy) expand the expedited transfer policy 

to include victims who file restricted reports of sexual assault. The victim’s report would remain restricted and there 

would be no resulting investigation. The DAC-IPAD further recommends the following requirements:

a. The decision authority in such cases should be an O-6 or flag officer at the Service headquarters 

organization in charge of military assignments, rather than the victim’s commander.

b. The victim’s commander and senior enlisted leader, at both the gaining and losing installations, should be 

informed of the sexual assault and the fact that the victim has requested an expedited transfer—without 

being given the subject’s identity or other facts of the case—thereby enabling them to appropriately 

advise the victim on career impacts of an expedited transfer request and ensure that the victim is receiving 

appropriate medical or mental health care.

c. A sexual assault response coordinator, victim advocate, or special victims’ counsel (SVC) / victims’ legal 

counsel (VLC) must advise the victim of the potential consequences of filing a restricted report and 

requesting an expedited transfer, such as the subject not being held accountable for his or her actions and 

the absence of evidence should the victim later decide to unrestrict his or her report.

DAC-IPAD Recommendation 14 – (Mar 2019) The Secretary of Defense (in consultation with the Secretary 

of Homeland Security with respect to the Coast Guard when not operating as a service in the Navy) establish a 

working group to review whether victims should have the option to request that further disclosure or investigation 

of a sexual assault report be restricted in situations in which the member has lost the ability to file a restricted report, 

whether because a third party has reported the sexual assault or because the member has disclosed the assault to 

a member of the chain of command or to military law enforcement. The working group’s goal should be to find 

a feasible solution that would, in appropriate circumstances, allow the victim to request that the investigation 

be terminated. The working group should consider under what circumstances, such as in the interests of justice 

and safety, a case may merit further investigation regardless of the victim’s wishes; it should also consider whether 

existing safeguards are sufficient to ensure that victims are not improperly pressured by the subject, or by others, to 

request that the investigation be terminated. This working group should consider developing such a policy with the 

following requirements:
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

a. The victim be required to meet with an SVC or VLC before signing a statement requesting that the 

investigation be discontinued, so that the SVC or VLC can advise the victim of the potential consequences 

of closing the investigation.

b. The investigative agent be required to obtain supervisory or MCIO headquarters-level approval to close a 

case in these circumstances.

c. The MCIOs be aware of and take steps to mitigate a potential perception by third-party reporters that 

allegations are being ignored when they see that no investigation is taking place; such steps could include 

notifying the third-party reporter of the MCIO’s decision to honor the victim’s request.

d. Cases in which the subject is in a position of authority over the victim be excluded from such a policy.

e. If the MCIO terminates the investigation at the request of the victim, no adverse administrative or 

disciplinary action may be taken against the subject based solely on the reporting witness’s allegation of 

sexual assault.

DAC-IPAD Recommendation 15 – (Mar 2019) The Secretary of Defense (and the Secretary of Homeland Security 

with respect to the Coast Guard when not operating as a service in the Navy) revise the DoD expedited transfer 

policy (and the policy governing the Coast Guard with respect to expedited transfers) to include the following 

points:

a. The primary goal of the DoD expedited transfer policy is to act in the best interests of the victim. 

Commanders should focus on that goal when they make decisions regarding such requests.

b. The single, overriding purpose of the expedited transfer policy is to assist in the victim’s mental, physical, 

and emotional recovery from the trauma of sexual assault. This purpose statement should be followed by 

examples of reasons why a victim might request an expedited transfer and how such a transfer would assist 

in a victim’s recovery (e.g., proximity to the subject or to the site of the assault at the current location, 

ostracism or retaliation at the current location, proximity to a support network of family or friends at the 

requested location, and the victim’s desire for a fresh start following the assault).

c. The requirement that a commander determine that a report be credible is not aligned with the core 

purpose of the expedited transfer policy. It should be eliminated, and instead an addition should be made 

to the criteria that commanders must consider in making a decision on an expedited transfer request: “any 

evidence that the victim’s report is not credible.”

DAC-IPAD Recommendation 16 – (Mar 2019) Congress increase the amount of time allotted to a commander to 

process an expedited transfer request from 72 hours to no more than five workdays.

DAC-IPAD Recommendation 17 – (Mar 2019) The Services track and report the following data in order to best 

evaluate the expedited transfer program:

a. Data on the number of expedited transfer requests by victims; the grade and job title of the requester; the 

sex and race of the requester; the origin installation; whether the requester was represented by an SVC/

VLC; the requested transfer locations; the actual transfer locations; whether the transfer was permanent 

or temporary; the grade and title of the decision maker and appeal authority, if applicable; the dates of the 

sexual assault report, transfer request, approval or disapproval decision and appeal decision, and transfer; 

and the disposition of the sexual assault case, if final.
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APPENDIX E: COMMITTEE RECOMMENDATIONS TO DATE

b. Data on the number of accused transferred; the grade and job title of the accused; the sex and race of the 

accused; the origin installation; the transfer installation; the grade and title of the decision maker; the 

dates of the sexual assault report and transfer; whether the transfer was permanent or temporary; and the 

disposition of the sexual assault case, if final.

c. Data on victim participation in investigation/prosecution before and after an expedited transfer.

d. Data on the marital status (and/or number of dependents) of victims of sexual assault who request expedited 

transfers and accused Service members who are transferred under this program.

e. Data on the type of sexual assault offense (penetrative or contact) reported by victims requesting expedited 

transfers.

f. Data on Service retention rates for sexual assault victims who receive expedited transfers compared with 

sexual assault victims who do not receive expedited transfers and with other Service members of similar rank 

and years of service.

g. Data on the career progression for sexual assault victims who receive expedited transfers compared with 

sexual assault victims who do not receive expedited transfers and with other Service members of similar rank 

and years of service.

h. Data on victim satisfaction with the expedited transfer program.

i. Data on the expedited transfer request rate of Service members who make unrestricted reports of sexual 

assault.

DAC-IPAD Recommendation 18 – (Mar 2019) The Secretaries of the Military Departments (and the Secretary of 

Homeland Security with respect to the Coast Guard when not operating as a service in the Navy) incorporate into 

policy, for those sexual assault victims who request it, an option to attend a transitional care program at a military 

medical facility, Wounded Warrior center, or other facility in order to allow those victims sufficient time and 

resources to heal from the trauma of sexual assault.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
F-1

APPENDIX F: COMMITTEE REQUESTS FOR INFORMATION (SETS 11–15)

APPENDIX F. COMMITTEE REQUESTS FOR INFORMATION 

(SETS 11–15)

DAC-IPAD REQUESTS FOR INFORMATION SUBMITTED TO ORGANIZATIONS WITHIN THE 

DEPARTMENT OF DEFENSE AND THE MILITARY SERVICES

RFI Set 11: Request for Information and Request for Presenters from the Judge Advocates General of the Military 

Services Regarding Prosecution Decisions, Victim Participation, and Conviction/Acquittal Rates (May 

15, 2019)

RFI Set 12: Request for Information from the Judge Advocates General of the Military Services for the Number of 

Cases Referred to General Courts-Martial and the Number of Article 32, Uniform Code of Military 

Justice (UCMJ), Preliminary Hearings Held or Waived in Fiscal Years 2016, 2017, and 2018; and the 

Number of Military Magistrates and Judges in Each Military Service (September 10, 2019)

RFI Set 13: Request for Information from the Judge Advocates General of the Military Services for All Cases from 

Fiscal Year 2019 That Involve a Preferred Charge Under Any of the Punitive Articles of the UCMJ 

(November 21, 2019)

RFI Set 14: Request for Information from the Military Services’ Sexual Assault Prevention and Response Directors 

for Current Sexual Assault Training Materials (January 22, 2020)

RFI Set 15: Request for Information from the Judge Advocates General of the Military Services Regarding the 

Appointment of Guardians ad Litem for Minor Victims of Sex-Related Offenses (January 28, 2020)

Digital versions of the DAC-IPAD RFIs are available online at https://dacipad.whs.mil/. In accordance with the 

Freedom of Information Act (FOIA) and the Federal Advisory Committee Act of 1972 (FACA), the Department of 

Defense is the release authority for agency documents provided to the DAC-IPAD in response to the Committee’s 

information requests. 
F-2

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

Defense Advisory Committee on Investigation, Prosecution, and 

Defense of Sexual Assault in the Armed Forces (DAC-IPAD)

Request for Information and Request for Presenters

RFI Set 11, Narrative Questions

Topics: Prosecution Decisions, Victim Participation, and Conviction/Acquittal Rates

Date of Request: May 15, 2019

Aggregated RFI Set 11 Responses are available at 

https://dacipad.whs.mil/images/Public/07-RFIs/DACIPAD_RFI_

Set11_20190515_Questions_Answers_20191204.pdf

I. Purpose 

A. The DAC-IPAD is a federal advisory committee established by the Secretary of Defense pursuant to 

section 546 of the National Defense Authorization Act for Fiscal Year 2015 (Public Law 113-291), as 

amended. 

B. The mission of the Committee is to advise the Secretary of Defense on the investigation, prosecution, 

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

members of the Armed Forces.

C. The DAC-IPAD requests the below information to facilitate its required review of cases involving allegations 

of sexual misconduct on an ongoing basis for purposes of providing advice to the Secretary of Defense. 

II. Summary of Requested Response Dates

Suspense Question(s) Proponent

21 Jun 19 Speakers

Section III

Military Services – Provide names and contact information for 

nominated speakers for each panel.

21 Jun 19 Narrative 

Questions 

Section IV

Military Services – The identified group provide narrative responses 

to the identified questions in Section IV of this RFI.

III. Request for Speakers at the August 23, 2019, DAC-IPAD Public Meeting

The DAC-IPAD requests that each of the Military Services make available the following speakers within their 

respective organizations to answer questions from Committee members at the DAC-IPAD public meeting 

scheduled for August 23, 2019 in Arlington, Virginia, regarding the topics addressed in Section IV of this RFI:

Panel 1: Chief, Criminal Law/Military Justice Division 

Panel 2: Program Manager, Special Victims’ Counsel and Victims’ Legal Counsel Program

Panel 3: Chief, Trial Defense Services Organization
F-3

APPENDIX F: COMMITTEE REQUESTS FOR INFORMATION (SETS 11–15)

IV. Narrative Questions 

Purpose: The Judicial Proceedings Panel (JPP or Panel) recommended that the DAC-IPAD explore a number 

of issues raised throughout the course of the Panel’s military installation site visits in 2016.1

 Further, the DoD 

General Counsel has requested that the DAC-IPAD examine these issues. To this end, the Committee begins its 

review by requesting written responses from stakeholders involved in the process on these as well as additional 

issues of interest to the Committee. Please consider each issue separately, and not as it relates to any of the other 

policy issues. 

Responses to the questions in section A are requested from all RFI recipients. Responses to the questions in 

section B are requested only from the criminal law/military justice organizations. Responses to the section C 

questions are requested only from the SVC/VLC Program Managers. Responses to the section D questions are 

requested only from the defense service organizations. 

A. Policy Questions for Service Criminal Law/Military Justice Divisions, Special Victims’ 

Counsel Program Managers, and Trial Defense Service Organizations

Policy Question 1: Article 32 Preliminary Hearing.

JPP Recommendation 552 requested that the DAC-IPAD continue to review the usefulness of the Article 

32 preliminary hearing process, including the weight given to preliminary hearing officers’ (PHOs) 

recommendations. DAC-IPAD members reviewing penetrative sexual assault investigative case files have found 

instances in which a PHO indicated, typically in a very thorough report, that no probable cause existed for 

a penetrative sexual assault offense, the staff judge advocate disagreed, the case was referred to court-martial, 

and an acquittal resulted. To begin its evaluation of the Article 32, UCMJ, process, the Committee requests 

narrative responses to the following questions:

a. Should the recommendations of PHOs against referral of sexual assault charges to court-martial, based on a 

lack of probable cause, be binding on convening authorities? 

• What are the most compelling arguments for and against this proposition from your organization’s 

perspective?

• Does your organization support or oppose the proposition? Why or why not?

1 See Judicial Proceedings Panel Report on Panel Concerns Regarding the Fair Administration of Military Justice in Sexual Assault 

Cases (Sept. 2017), available at https://jpp.whs.mil/public/docs/08-Panel_Reports/10_JPP_Concerns_Fair_MJ_Report_Final_20170915.pdf. 

2 JPP Recommendation 55: The Secretary of Defense and the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual 

Assault in the Armed Forces (DAC-IPAD) continue the review of the new Article 32 preliminary hearing process, which, in the view of many counsel 

interviewed during military installation site visits and according to information presented to the JPP, no longer serves a useful discovery purpose. This 

review should look at whether preliminary hearing officers in sexual assault cases should be military judges or other senior judge advocates with military 

justice experience and whether a recommendation of such a preliminary hearing officer against referral, based on lack of probable cause, should be given 

more weight by the convening authority. This review should evaluate data on how often the recommendations of preliminary hearing officers regarding 

case disposition are followed by convening authorities and determine whether further analysis of, or changes to, the process are required. 

In addition, because the Article 32 hearing no longer serves as a discovery mechanism for the defense, the JPP reiterates its recommendation—

presented in its report on military defense counsel resources and experience in sexual assault cases—that the military Services provide the defense with 

independent investigators.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

b. Alternatively, should Article 34, UCMJ, and/or R.C.M. 406 be amended to require additional written 

explanation when a staff judge advocate’s Article 34 advice disagrees with a PHO’s finding of no probable 

cause? 

• What are the most compelling arguments for and against this proposition from your organization’s 

perspective?

• Does your organization agree or disagree with instituting such a requirement? Why or why not?

c. Could there be a benefit in having a preliminary hearing akin to the function of a federal grand jury 

proceeding PRIOR to the preferral of charges?

• What are the most compelling arguments for and against this proposition from your organization’s 

perspective?

• Does your organization agree or disagree with this proposition? Why or why not?

Policy Question 2: Non-Disclosure of Article 34 Pretrial Advice.

In JPP Recommendation 58,3 the Panel requested that the DAC-IPAD review whether Article 34 of the UCMJ 

and R.C.M. 406 should be amended to remove the requirement that the SJA’s pretrial advice to the convening 

authority be released to the defense upon referral of charges to court-martial. The Panel was concerned that this 

requirement inhibited the convening authority’s legal staff from providing a fully developed, candid analysis 

of the evidence in the case. To begin its evaluation of Article 34, UCMJ, the Committee requests narrative 

responses to the following questions:

Should the UCMJ and/or Manual for Courts-Martial be amended to protect a staff judge advocate’s Article 34 

pretrial advice, and any written proof analysis by a trial counsel (sometimes referred to as a “prosecution merits 

memorandum”), from disclosure to the defense in order to provide more fully developed and candid written 

advice to the convening authority regarding the strengths and weaknesses of the charges? 

a. What are the most compelling arguments for and against this proposition from your organization’s 

perspective?

b. Does your organization support or oppose the proposition? Why or why not? 

B.Operational Questions for Service Criminal Law/Military Justice Divisions

Question 1: Prosecution Initiation/Declination.

a. Is the ability to obtain and sustain a conviction being considered in decisions to prefer charges in sexual 

assault cases? If so, what weight is it given? What weight is given to the victim’s preferences at this stage?

b. Do your prosecutors recommend that certain sexual assault prosecutions should be declined because the 

accused is subject to effective prosecution in another jurisdiction? If so, what factors do they consider?

3 JPP Recommendation 58: The Secretary of Defense and the DAC-IPAD review whether Article 34 of the UCMJ and Rule for Court-Martial 406 

should be amended to remove the requirement that the staff judge advocate’s pretrial advice to the convening authority (except for exculpatory 

information contained in that advice) be released to the defense upon referral of charges to court-martial. This review should determine whether any 

memo from trial counsel that is appended should also be shielded from disclosure to the defense. This review should also consider whether such a 

change would encourage the staff judge advocate to provide more fully developed and candid written advice to the convening authority regarding the 

strengths and weaknesses of the charges so that the convening authority can make a better-informed disposition decision.
F-5

APPENDIX F: COMMITTEE REQUESTS FOR INFORMATION (SETS 11–15)

c. How do you ensure there is appropriate consistency across jurisdictions (GCMCAs) within your 

Service with regard to the decision whether to prefer charges or decline prosecution, in order to prevent 

unwarranted disparity in prosecution initiation or declination decisions?

Question 2: Article 32 Preliminary Hearing Practice.

a. Do the judge advocates available to serve as PHOs in sexual assault cases possess sufficient training and 

experience? 

b. In Article 32 preliminary hearings in which a sexual assault victim does not testify, does the prosecution 

realize a benefit from the hearing? Does the defense realize a benefit?

c. Have the Military Justice Act of 2016 requirements for a more detailed analysis of the evidence by the 

PHO, and the post-hearing submission of supplementary information relevant to disposition pursuant to 

R.C.M. 405(k), assisted SJAs and convening authorities in making a referral decision?

Question 3: Effect of the New Article 33 Disposition Guidance.

JPP Recommendation 574 requests that the DAC-IPAD determine what effect, if any, the Article 33 disposition 

guidance has on the number of sexual assault cases being referred to courts-martial. 

In practice, since the non-binding disposition guidance codified in Article 33 and Appendix 2.1 of the Manual 

for Courts-Martial went into effect on January 1, 2019, what effect, if any, has this guidance had on the number 

of sexual assault cases referred to courts-martial? 

Question 4: Article 33 Disposition Guidance, in Practice.

a. How important is the ability to obtain and sustain a conviction to the decision to refer a sexual assault 

charge to trial? 

b. What considerations are SJAs incorporating into their recommendation as to disposition of the charges and 

specifications “in the interest of justice and discipline?” How are these considerations used in cases in which 

the SJA recommends referral contrary to the recommendation of the Article 32 PHO? Are these other 

considerations discussed in writing in the Article 34 advice or being briefed orally (and by whom), or both?5

4 JPP Recommendation 57: After case disposition guidance under Article 33, UCMJ, is promulgated, the Secretary of Defense and DAC-IPAD conduct 

both military installation site visits and further research to determine whether convening authorities and staff judge advocates are making effective use of 

this guidance in deciding case dispositions. They should also determine what effect, if any, this guidance has had on the number of sexual assault cases 

being referred to courts-martial and on the acquittal rate in such cases.

5 Rule for Court-Martial (R.C.M.) 601 provides, “If the convening authority finds or is advised by a judge advocate that there is probable cause to believe 

that an offense triable by a court-martial has been committed and that the accused committed it, and that the specification alleges an offense, the 

convening authority may refer it.” 

Article 34, UCMJ, and R.C.M. 406 prohibit the convening authority from referring a case to court-martial unless the staff judge advocate advises that 

there is probable cause to believe the accused committed the offense charged; in addition, Article 34, UCMJ, and R.C.M. 406 require the staff judge 

advocate to provide a recommendation as to the disposition that should be made of the charges in the interest of justice and discipline. 

Appendix 2.1, which implements Article 33, UCMJ, provides additional guidance regarding factors the convening authorities and staff judge advocates 

should consider when exercising their duties with respect to the disposition of charges, including “[w]hether admissible evidence will likely be sufficient 

to obtain and sustain a conviction in a trial by court-martial . . . .”
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

c. In a sexual assault case pending referral, if the SJA determines there is probable cause to believe that the 

accused committed a sexual assault offense, but conviction is not likely, under what circumstances should 

the SJA advise the convening authority to refer the case to court-martial? 

d. In such cases, do acquittals help or hinder the maintenance of good order and discipline, and why? 

Question 5: Conviction and Acquittal Rates for Sexual Assault Offenses.

The DAC-IPAD’s Third Annual Report (March 2019)6 contains an analysis of penetrative sexual assault courtmartial documents from all Military Services indicating the following statistics for reference in the questions 

that follow:

• 20% of preferred cases result in a conviction for a penetrative sexual assault offense

• 31% of referred cases result in a conviction for a penetrative sexual assault offense

• 31% of referred cases result in a full acquittal

• 25% of contested cases result in a conviction for a penetrative sexual assault offense

• 35% of contested cases result in a full acquittal

The Committee plans to undertake an in-depth analysis to better understand and evaluate the military’s sexual 

assault conviction and acquittal rates. To begin its evaluation, the Committee requests narrative responses to the 

following questions:

a. Are conviction and acquittal rates useful metrics for assessing the health and effectiveness of the military 

justice system? Why or why not?

b. Can you identify factors that contribute to the conviction rate for sexual assault offenses within each 

Military Service? Please describe. 

c. In your Service, are the conviction and acquittal rates for other offenses similar to those for sexual assault? Is 

this information routinely tracked by your Service? 

Question 6: Prosecutor and Defense Counsel Training.

Do military prosecutors and defense counsel in your Service have sufficient training to ensure just convictions 

and acquittals in sexual assault cases? 

Question 7: Victim Participation in the Reporting, Investigation, and Prosecution of Sexual Assault 

Crimes.

The DAC-IPAD’s Third Annual Report (March 2019) indicates that in a random sample of 164 penetrative 

sexual assault investigations reviewed by Committee members, 34% of the cases contained a record of the victim 

declining to participate at some stage in the process. 

a. Does your organization collect or track any information regarding victim participation/declination in sexual 

assault cases? If so, please explain. 

6 See Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces Third Annual 

Report (March 2019), App. I, pp. 8, 12–13 (Table 1C, Case Characteristics (FY2017); Table 2C, Case Dispositions and Case Outcomes (FY 2017)),

available at https://dacipad.whs.mil/images/Public/08-Reports/DACIPAD_Report_03_Final_20190326_Web.pdf.
F-7

APPENDIX F: COMMITTEE REQUESTS FOR INFORMATION (SETS 11–15)

b. What, either anecdotally or based on your organization’s analysis, are the most frequent reasons victims give 

for declining to participate? Do these reasons differ when comparing civilian and military victims?

C. Operational Questions for Program Managers for the Special Victims’ Counsel and Victims’ 

Legal Counsel Programs

Question 1: Managing Victim Expectations.

a. Do you and your SVCs/VLCs manage expectations with victims regarding court-martial results, or does the 

trial counsel do this? Please explain.

b. What effect does a full acquittal in a sexual assault case have on victims’ perceptions of the military justice 

process?

Question 2: Victim Participation in the Reporting, Investigation, and Prosecution of Sexual Assault 

Crimes.

The DAC-IPAD’s Third Annual Report (March 2019) indicates that in a random sample of 164 penetrative 

sexual assault investigations reviewed by Committee members, 34% of the cases had a record of the victim 

declining to participate or to participate further at some stage in the military justice process, meaning the 

victims declined to be interviewed by investigators or trial counsel or declined to testify at an Article 32 hearing 

or at trial. 

a. From a program management perspective, do you think it’s helpful to identify and understand the reasons 

why victims are not willing to participate in the military justice process? 

b. At what stage of the military justice process—investigation, preferral of charges, Article 32 hearing, or up 

until trial—are victims most likely to decline to participate in the process? Why do you believe this is so?

c. What are the most common reasons why victims decline to participate in the investigative or court-martial 

process? Do these reasons differ when comparing civilian and military victims?

d. In reviewing investigative and court-martial case files, the DAC-IPAD has found that many cases take more 

than a year from the offense being reported until the court-martial takes place. Does the length of time 

it takes for a case to proceed to court-martial have an effect on victim participation in the military justice 

process? 

e. Has the SVC/VLC program had an effect on victim declinations to participate in the investigative and 

court-martial process?
F-8

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

D. Operational Questions for Trial Defense Services Organizations

Question 1: Article 32 Preliminary Hearings.

a. Have the changes to Article 32, UCMJ, and R.C.M. 405—in particular the addition of the post-hearing 

submission of information relevant to the disposition of the charges—made Article 32 preliminary hearings 

more beneficial to the defense? Why or why not? 

b. In Article 32 preliminary hearings in which a sexual assault victim does not testify, does the defense realize a 

benefit from the hearing? 

c. Do the judge advocates serving as PHOs in sexual assault cases possess sufficient training and experience?

d. Prosecutorial discretion exists by virtue of the prosecutor’s status as a member of the executive branch, and 

the President’s responsibility under the U.S. Constitution to ensure that the laws of the United States be 

“faithfully executed.” Have you filed any motions to dismiss arguing the government has breached this 

principle (U.S. Constitution Article 2, Section 3) when charges are referred contrary to the advice of a 

PHO? If so, what was the outcome?

Question 2: Conviction and Acquittal Rates.

The DAC-IPAD’s Third Annual Report (March 2019)7 contains an analysis of penetrative sexual assault courtmartial documents from all Military Services indicating the following statistics for reference in Questions a 

through d that follow:

• 20% of preferred cases result in a conviction for a penetrative sexual assault offense

• 31% of referred cases result in a conviction for a penetrative sexual assault offense

• 31% of referred cases result in a full acquittal

• 25% of contested cases result in a conviction for a penetrative sexual assault offense

• 35% of contested cases result in a full acquittal

The Committee plans to undertake an in-depth analysis to better understand and evaluate the military’s sexual 

assault conviction and acquittal rates. To this end, the Committee requests written responses to the following 

questions. 

a. Are conviction and acquittal rates useful metrics for assessing the health and effectiveness of the military 

justice system? Why or why not?

b. Can you identify factors that contribute to the conviction rate for sexual assault offenses within your 

Service? Please describe. 

c. Are the conviction and acquittal rates for other offenses similar to those for sexual assault? 

d. Do military prosecutors and defense counsel possess sufficient training and experience to ensure just 

convictions and acquittals in sexual assault cases?

7 See Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces Third Annual 

Report (March 2019), App. I, pp. 8, 12–13 (Table 1C, Case Characteristics (FY2017); Table 2C, Case Dispositions and Case Outcomes (FY 2017)),

available at https://dacipad.whs.mil/images/Public/08-Reports/DACIPAD_Report_03_Final_20190326_Web.pdf.
F-9

APPENDIX F: COMMITTEE REQUESTS FOR INFORMATION (SETS 11–15)

Defense Advisory Committee on Investigation, Prosecution, and

Defense of Sexual Assault in the Armed Forces (DAC-IPAD)

Request for Information

RFI Set 12, Questions 1–2

Date of Request: September 10, 2019

I. Purpose 

See page F-2.

II. Requested Response Date

Suspense Question(s) Proponent

3 Oct 19 1–2 Services – Provide information requested in Section III of this RFI.

III. Courts-Martial Information

Question 1: The DAC-IPAD requests that the Services provide the following information, broken out by fiscal 

year, for fiscal years 2016, 2017, and 2018 [note: this information is requested for all UCMJ offenses and is not

specific to sexual assault offenses]:

a. Total number of cases referred to general courts-martial [please provide all cases referred to GCM, regardless of 

ultimate disposition of the case]

b. Total number of Article 32 preliminary hearings conducted 

c. Total number of Article 32 preliminary hearing waivers 

d. Total number of Article 32 preliminary hearings conducted, but which did not result in a general courtmartial, and the disposition of those cases (i.e., dismissal of charges, alternate disposition)

Question 2: The DAC-IPAD requests the total number of judge advocates currently serving as military 

magistrates and/or military judges in each Service.

Please provide any Service regulations, policies, or procedures that pertain to military magistrates.
F-10

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

Defense Advisory Committee on Investigation, Prosecution, and 

Defense of Sexual Assault in the Armed Forces (DAC-IPAD)

Request for Information

RFI Set 13, Questions 1-2

Date of Request: November 21, 2019

I. Purpose 

See page F-2.

II. Requested Response Date

Suspense Question(s) Proponent

20 Dec 19 1 Services – Provide list of cases meeting RFI criteria to the DACIPAD using the format in Attachment 1.

1 Feb 20 2 Services – Provide specified case documents (PDFs) for all cases to 

the DAC-IPAD.

III. Court-Martial Cases in Fiscal Year 2019 (FY19)

Question 1: The DAC-IPAD requests that the Military Services use the information from the Services’ case 

management systems to identify all cases in fiscal year 2019 that involve a preferred charge under the punitive 

articles of the UCMJ. In an attempt to mitigate under-reporting and non-responsive submissions, this 

information is requested for all UCMJ offenses and is not specific to sexual assault offenses. The DAC-IPAD 

requests that the Services identify the cases by Service and Accused (Service | Last Name | First Name) in an 

Excel file; see Attachment 1. 

Please provide completed list to the DAC-IPAD by December 20, 2019.

Question 2: For cases identified in Question 1, provide copies of the following documents, as applicable 

to individual case. If your Service does not use the specified DD form, please provide Service-equivalent 

documents:

1. DD Form 458, Charge Sheet

2. DD Form 2707-1, Report of Result of Trial (if applicable)

3. Statement of Trial Results (if applicable)

4. Promulgation Order (if applicable)

5. Entry of Judgment (if applicable)

Please provide requested documents to the DAC-IPAD by February 1, 2020.
F-11

APPENDIX F: COMMITTEE REQUESTS FOR INFORMATION (SETS 11–15)

ATTACHMENT 1 – Service Responses to DAC-IPAD RFI Set 13, Question 1

[Military Service] – FY19:

Service Last Name First Name

USA / USMC / USN /

USAF / USCG Doe John

Defense Advisory Committee on Investigation, Prosecution, and 

Defense of Sexual Assault in the Armed Forces (DAC-IPAD)

Request for Information

RFI Set 14, Question 1

Topic: Sexual Assault Training Materials

Date of Request: January 22, 2020

I Purpose 

See page F-2. 

II. Requested Response Date

Suspense Question(s) Proponent

1 Mar 20 1 Services – Provide copies of training materials meeting RFI criteria 

to the DAC-IPAD.

III. Sexual Assault Training Materials

Question 1: The DAC-IPAD requests that the services provide copies of all current training materials used when 

conducting sexual assault training for the following: (1) entry-level training or “boot camp”; (2) Officer Candidates 

School; (3) the service academies; (4) commanders; and (5) service-wide, annual sexual assault training. The DACIPAD requests that the Services separately identify each set of training materials in the response. 

Please provide completed list to the DAC-IPAD by March 1, 2020.
F-12

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

Defense Advisory Committee on Investigation, Prosecution, and 

Defense of Sexual Assault in the Armed Forces (DAC-IPAD)

Request for Information

RFI Set 15, Questions 1–5, Documents 1–3

Topic: Appointment of Guardians ad Litem for Minor Victims of Sex-Related Offenses

Date of Request: January 28, 2020

I. Purpose 

See page F-2.

II. Summary of Requested Response Dates

Suspense Question(s) Proponent

March 1, 

2020

Questions 1–5 

and Documents 

1–3

Services – Provide narrative responses regarding SVC/VLC, Article 

6b representatives, and guardians ad litem for minor victims and the 

requested policies, regulations, and guidance.

III. Narrative Questions for Special Victims’ Counsel and Victims’ Legal Counsel (SVC/VLC) Programs 

Regarding Guardians ad Litem for Minor Victims 

Background:

U.S. House of Representatives Report 116-120, part 1 (2019), accompanying H.R. 2500, contains a request 

for the DAC-IPAD to evaluate the need for, and feasibility of, the appointment of guardians ad litem for minor 

victims of sex-related offenses. Specifically, Section 421 of the House Report states the following:

Appointment of Guardian ad Litem for Minor Victims

The committee is concerned for the welfare of minor, military dependents who are victims of an alleged sexrelated offense. The committee acknowledges the Department of Defense’s continued efforts to implement 

services in support of service members who are victims of sexual assault and further, to expand some of these 

services to dependents who are victims. However, the committee remains concerned that there is not an 

adequate mechanism within the military court-martial process to represent the best interests of minor victims 

following an alleged sex-related offense.

Therefore, not later than 180 days after the date of the enactment of this Act, the Defense Advisory Committee 

on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces shall submit to the 

Committees on the Armed Services of the Senate and the House of Representatives a report that evaluates the 

need for, and the feasibility of, establishing a process under which a guardian ad litem may be appointed to 

represent the interests of a victim of an alleged sex-related offense (as that term is defined in section 1044e(g) of 

title 10, United States Code) who has not attained the age of 18 years.
F-13

APPENDIX F: COMMITTEE REQUESTS FOR INFORMATION (SETS 11–15)

Questions: 

Question 1: For all military investigations involving an alleged sex-related offense (as that term is defined in 

section 1044e(g) of title 10, United States Code), against a minor victim, and closed in the last 

two calendar years (2018, 2019): please provide a list, by year, of all alleged victims (represent 

each victim by a number, starting with 1) who were under the age of 18 at the time of the sexrelated offense and for which the alleged offender was a Service member subject to the UCMJ. 

For each victim identified, please document: 

a. The age of the victim at the time of the offense;

b. Whether the victim was represented by a SVC/VLC;

c. Whether the victim’s legal interests were represented by an Article 6b, UCMJ, 

representative, and if so, the basis for requesting the representative;

d. If there was an Article 6b representative appointed, the nature of the representative’s 

relationship to the victim (e.g., mother, aunt); 

e. Whether there were conflicts in the case between the victim’s, or victim’s 

representative’s, expressed wishes and the best interests of the victim; 

f. Whether a guardian ad litem was appointed, and if so, how and by whom.

Question 2: Does your Service believe it would be beneficial to establish, or has your Service already 

established, a process under which a guardian ad litem may be appointed to represent the 

interests of a minor victim of an alleged sex-related offense described above (or any other 

offenses)?

Question 3: Are SVCs/VLCs in your Service specifically authorized to represent a victim’s best interest in 

the event the victim lacks the capacity or maturity to make a decision regarding a specific issue 

involved in the case? If, so, please reference the specific policy or regulation providing for this 

representation.

Question 4: If SVCs/VLCs in your Service are authorized to represent the best interests of a minor victim 

in certain instances of incapacity, please identify any of the victims listed in Question 1 for 

whom this occurred. If SVCs/VLCs are not allowed to represent the best interests of a minor 

victim in your Service, what happens when a victim lacks capacity due to his or her young age 

and there is not a suitable Article 6b representative available? Please identify any of the victims 

listed in Question 1 for whom this was the case and provide a brief description of the case and 

how the issue was addressed.

Question 5: Please provide any additional comments or feedback regarding the congressional proposal to 

establish a guardian ad litem appointment process for the military that would be helpful for 

the DAC-IPAD to consider in its evaluation and report to Congress on this issue. 
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

IV. Request for Service Policies, Regulations, and Other Written Documents Related to SVCs/VLCs or 

Guardians ad Litem Appointed for Minor Victims 

Requested documents: 

1. All Service policies, regulations, or guidance that address SVC/VLC representation of victims under the age 

of 18.

2. All Service policies, regulations, or guidance that address guardians ad litem.

3. MOAs/MOUs between the Services and State/Local Child Protection Service organizations or other 

organizations that address the appointment of guardians ad litem for victims under the age of 18 in criminal 

cases involving Service member subjects. If there are more than five such MOAs/MOUs in your Service, 

please provide five as a representative sample. If there are fewer than five, please provide all relevant MOA/

MOUs. 
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APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

APPENDIX G. SEPTEMBER 16, 2019, LETTER FROM 

DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S 

ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT 

VICTIM COLLATERAL MISCONDUCT REPORT
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

THE DEFENSE ADVISORY COMMITTEE ON

INVESTIGATION, PROSECUTION, AND DEFENSE

OF SEXUAL ASSAULT IN THE ARMEDFORCES

September 16, 2019 

The Honorable Mark T. Esper 

Secretary of Defense

1000 Defense Pentagon

Washington, DC 20301-1000 

Dear Mr. Secretary:

As the Chair of the Defense Advisory Committee on Investigation, Prosecution, and 

Defense of Sexual Assault in the Armed Forces (the Committee or DAC-IPAD), a federal 

advisory committee established by section 546 of the National Defense Authorization Act for 

Fiscal Year 2015 (Public Law No. 113-291), I respectfully submit the analysis and 

recommendations of the DAC-IPAD regarding the Department of Defense’s (DoD’s) draft 

Report on Allegations of Collateral Misconduct Against Individuals Identified as the Victim of 

Sexual Assault in the Case Files of a Military Criminal Investigative Organization. This analysis

is offered pursuant to section 547 of the John S. McCain National Defense Authorization Act for 

Fiscal Year 2019 (Public Law No. 115-232) (hereinafter FY19 NDAA), which directs the 

Secretary of Defense to work with the DAC-IPAD in submitting to the congressional defense 

committees a biennial report on the number of instances of collateral misconduct committed by

alleged sexual assault victims.

Section 547 requires the Secretary’s reports to include three statistical data elements: (1) 

the number of instances in which an individual identified as a victim of a sexual assault in the 

case files of a military criminal investigation was accused of misconduct or crimes considered 

collateral to the investigation of sexual assault, (2) the number of instances in which adverse 

action was taken against those individuals for collateral misconduct or crimes, and (3) the 

percentage of sexual assault investigations that involved such an accusation or adverse action 

against those individuals. Each report is to cover the two years preceding the report due date. The 

first report is to be submitted to the congressional defense committees by September 30, 2019. 

The Committee received a draft DoD collateral misconduct report and a request for its 

input regarding the report from the DoD General Counsel on June 11, 2019; that report included 

the collateral misconduct data collected by the Army, Navy, Marine Corps, and Air Force. The 

Coast Guard provided its report on allegations of collateral misconduct to the DAC-IPAD on 

August 16, 2019.1 To better understand how the information in the reports was identified and 

gathered in each Service, the Committee requested representatives from the Services who were 

involved in the data collection process to meet with the DAC-IPAD staff and provide additional 

1 See Enclosure 1 for the Department of Defense’s draft report and the Coast Guard report. The Air Force provided a 

supplemental report to the DAC-IPAD on August 22, 2019, and it is also included in Enclosure 1. 
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APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

2

information regarding the data reported and methodologies employed. Following this meeting

and at the request of the DAC-IPAD, the Services provided additional details to the Committee

regarding the types of collateral misconduct reported and adverse actions taken. Service 

representatives were then invited to appear at the August 23, 2019, DAC-IPAD public meeting to 

respond directly to Committee members’ questions regarding the draft reports. Based on the 

Committee’s review of the draft reports, the additional information provided by the Services, and 

the testimony received at the public meeting, the Committee offers the following observations 

and analysis.

Analysis of the Services’ Definitions and Methodologies 

In reviewing the draft reports and additional information provided by the Services, the 

Committee identified inconsistencies in the methodologies for data collection and the definitions 

of terms applied by the Services.2

 These inconsistencies can be attributed, in substantial part, to 

the relevant statute’s use of key terms without defining them. That the Services, in the absence of 

uniform guidance, employed nonstandard and inconsistent definitions to collect collateral 

misconduct data underscores the critical need for, and difficulty in obtaining, uniform, accurate, 

and complete information on sexual assault cases across the military. The DAC-IPAD notes that 

this difficulty was the driving force behind the Committee’s recommendation in its September 

13, 2018, letter to the Secretary of Defense—regarding Article 140a of the Uniform Code of 

Military Justice (UCMJ)—that DoD develop a single electronic database for the uniform 

collection, storage, and analysis of standardized military justice documents across the Services.

3

Inconsistencies in Data Collection

One example of the significant differences in the Services’ collection of collateral 

misconduct data was in how each Service determined its total number of sexual assault 

investigations and victims. One Service included only investigations of penetrative sexual 

offenses in its data, while the other Services included investigations for both penetrative and 

contact sexual offenses. Some Services included both cases in which investigations were 

complete but command action was pending and cases in which command action was complete. 

Others included only cases with completed command action. In addition, the Services differed in 

whether they included reservists and members of the National Guard in federal status who were 

victims of sexual assault, and whether they included victims from their Service if the case was 

investigated by another Service’s military criminal investigative organization (MCIO). 

Another critical difference across Services in their reporting criteria was in the definition 

each assigned to the term “accused” when determining the number of instances in which a victim 

of sexual assault was accused of collateral misconduct. Under the definition used by some 

Services, a victim was considered to be accused of collateral misconduct if the MCIO’s sexual 

assault investigation revealed circumstances that could potentially support the taking of adverse 

2 See Enclosure 2 for more details on the variances in the Services’ definitions and methodologies.

3 See Letter from DAC-IPAD to the Secretary of Defense Regarding Article 140a, Uniform Code of Military Justice 

(Sept. 13, 2018), available at https://dacipad.whs.mil/images/Public/08-

Reports/03_DACIPAD_InterimReport_Article140a_20180913_Final.pdf.
G-4

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

3

action against the victim. Other Services employed more restrictive criteria, considering a victim 

to be accused of collateral misconduct only if an inquiry into the collateral misconduct was 

actually initiated. The Committee finds that in the context of this report, the statutory language

describing a victim as “accused” of collateral misconduct is extremely confusing. In the military 

justice system, that term is typically used of a Service member only after charges have been 

preferred against him or her; during the investigative stage, a person suspected of engaging in 

misconduct is typically referred to as a “suspect.” Consequently, the lack of clear guidance on 

what Congress meant for a victim to be accused of collateral misconduct was a significant 

obstacle to drafting a meaningful report. 

False Allegations of Sexual Assault 

The Services were also inconsistent in how they treated what they considered to be false 

allegations of sexual assault; some Services included false allegations in their data as collateral 

misconduct, while others did not. To clarify whether a Service included false allegations in the 

reported number of cases involving collateral misconduct, the DAC-IPAD asked all of the 

Services to separately provide data concerning false allegations and adverse actions taken.

4

 None 

of the Services provided a written definition of what they classified as a “false allegation of 

sexual assault” or specified the evidentiary threshold necessary to classify an allegation as false. 

During the August 23, 2019, public meeting, the Committee members questioned the 

Service representatives on this issue and learned that at least one Service classified cases in 

which a mistaken report was made by a third party as a false report. The Service representatives

also mentioned instances in which a suspect makes a “cross-claim” of sexual assault, meaning 

that one person reported the sexual assault and the suspect in that case then countered by 

accusing the reporter of sexual assault. Several Service representatives noted that they had 

difficulty determining how to classify these reports.

5

The Committee finds that a factually false allegation of sexual assault constitutes its own 

category of misconduct, rather than being misconduct collateral to a sexual assault, and therefore

should not be counted as an instance of collateral misconduct.

Analysis of Collateral Misconduct Data Provided by the Services 

Incidence of Collateral Misconduct 

Congress requested the percentage of Service members who are sexual assault victims 

and are accused of collateral misconduct. Notwithstanding the inconsistencies in the Services’ 

4 There were a total of 5,733 reported Service member victims: of this number, the Army reported 8 cases involving 

false allegations of sexual assault; the Navy, Marine Corps, and Air Force each reported 5 cases involving false 

allegations of sexual assault; and the Coast Guard reported 2 cases involving false allegations of sexual assault (the 

Services reported these numbers using their own definitions of the term “false allegation”). 

5 See Transcript of DAC-IPAD Public Meeting 46–49 (Aug. 23, 2019) (testimony of Lieutenant Adam Miller, U.S. 

Coast Guard, Legal Intern, Office of Military Justice; testimony of Lieutenant Colonel Jane M. Male, U.S. Air 

Force, Deputy of the Military Justice Division, Air Force Legal Operations Agency).
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APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

4

methodologies and definitions, the Services’ data made clear that whatever criteria each

employed, the incidence of victim collateral misconduct in criminally investigated sexual assault

cases is fairly low, ranging from 1% of the Service members who are sexual assault victims in 

the Navy and Marine Corps to a high of 20% in the Coast Guard.6 In the largest Service, the 

Army, 12% of Service member victims were accused of collateral misconduct in penetrative 

cases. Based on the combined DoD and Coast Guard reports, as well as the Services’ varying

definitions of “accused of collateral misconduct,” an average of 6% of Service member victims

were accused of collateral misconduct in the two-year period studied. 

Likelihood of Adverse Action 

Congress also requested the percentage of Service members who are sexual assault

victims and receive adverse action for collateral misconduct. The Services provided the 

percentage of all Service member victims who received adverse action for collateral misconduct, 

regardless of whether they were even accused of such misconduct. However, the figure that may 

also be helpful to policymakers is the likelihood of adverse action for those who are accused of 

collateral misconduct. The Committee’s calculations show that the likelihood of a Service 

member victim receiving adverse action when accused of collateral misconduct varied widely

across the Services, ranging from a 10% likelihood of adverse action in the Army to a 91%

likelihood of adverse action in the Marine Corps. But this statistic provides no basis for reliable

comparisons between the Services, because they did not have a single interpretation of the term

“accused.” As would be expected, the Services that defined “accused” more broadly showed less 

likelihood of adverse action than the Services that defined the term more restrictively.

Types of Collateral Misconduct and of Adverse Action Received

In the data initially provided, the Services did not include the type of collateral

misconduct each victim was accused of or the type of adverse action received, though several 

Services mentioned in their reports that they did collect this information. The Committee

subsequently requested this information from the Services for analysis.

7 The frequency of each

type of collateral misconduct differed depending on the Service. In the Army, the most common

collateral misconduct offenses were underage drinking (38%), adultery (14%), violation of an

order or policy (14%), and fraternization (13%). In the Navy, the most common collateral

misconduct offenses were fraternization (29%), underage drinking (19%), and liberty policy

violations (14%). In the Marine Corps, the most common collateral misconduct offenses were

orders violations (36%) and underage drinking (27%). In the Air Force, the most common

collateral misconduct offenses were underage drinking (24%), orders or policy violations (19%),

and adultery, fraternization, or unprofessional relationships (14%). Finally, in the Coast Guard,

the most common collateral misconduct offenses were prohibited relationship (51%), underage 

drinking (15%), and sex in the barracks (13%). The type of adverse action received for these

offenses also varies across the Services. 

6 See Enclosure 3 for a detailed breakdown on the percentage of victims who were accused of collateral misconduct 

in each Service and the percentage of victims who received adverse action in each Service.

7 See Enclosure 4 for supplemental information from each Service on the type of collateral misconduct and adverse 

action taken. 
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

5

Recommendations 

Because the Services did not use the same methodology to collect data, the DAC-IPAD is 

unable to base substantive recommendations regarding collateral misconduct on the information 

contained in the reports and supplemental information received. The Committee believes that 

before meaningful substantive analysis can take place, a thorough and consistent methodology 

must be applied across the Services in collecting the relevant data. If the inconsistencies in the 

Services’ definitions and methodologies for data collection are not resolved promptly, future 

reports on collateral misconduct will face the same obstacles as those discussed in this letter.

Drawing on their experiences in collecting the data required for this year’s initial 

collateral misconduct report, the Services provided the DAC-IPAD with helpful input to clarify 

and standardize definitions and the collection methodology in reports going forward. Based on 

this input, the testimony at the August 23 public meeting, and the Committee’s deliberations, the 

DAC-IPAD offers the following recommendations to the Secretary of Defense to improve the 

uniformity, accuracy, and utility of the collateral misconduct data in future reports. 

Recommendation 1: The Department should publish a memorandum outlining sufficiently 

specific data collection requirements to ensure that the Services use uniform methods, 

definitions, and timelines when reporting data on collateral misconduct (or, where appropriate, 

the Department should submit a legislative proposal to Congress to amend section 547 by

clarifying certain methods, definitions, and timelines). The methodology and definitions should 

incorporate the following principles: 

a. Definition of “sexual assault”:

o The definition of “sexual assault” for purposes of reporting collateral misconduct

should include:

 Both penetrative and non-penetrative violations of Article 120, UCMJ

(either the current or a prior version, whichever is applicable at the time of

the offense);

 Violations of Article 125, UCMJ, for allegations of sodomy occurring

prior to the 2019 version of the UCMJ; and

 Attempts, conspiracies, and solicitations of all of the above.

o The definition of sexual assault should not include violations of Article 120b,

UCMJ (Rape and sexual assault of a child), Article 120c, UCMJ (Other sexual

misconduct), Article 130, UCMJ (Stalking), or previous versions of those

statutory provisions.
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APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

6

b. Definition of “collateral misconduct”:

o Current DoD policy defines “collateral misconduct” as “[v]ictim misconduct that

might be in time, place, or circumstance associated with the victim’s sexual

assault incident.”8

o However, a more specific definition of collateral misconduct is necessary for

purposes of the section 547 reporting requirement. That recommended definition

should be as follows: “Any misconduct by the victim that is potentially

punishable under the UCMJ, committed close in time to or during the sexual

assault, and directly related to the incident that formed the basis of the sexual

assault allegation. The collateral misconduct must have been discovered as a

direct result of the report of sexual assault and/or the ensuing investigation into

the sexual assault.”

o Collateral misconduct includes (but is not limited to) the following situations:

 The victim was in an unprofessional relationship with the accused at the

time of the assault.9

 The victim was drinking underage or using illicit substances at the time of

the assault.

 The victim was out past curfew, was at an off-limits establishment, or was

violating barracks/dormitory/berthing policy at the time of the assault.

o To ensure consistency across the Services, collateral misconduct, for purposes of

this report, should not include the following situations (the list is not exhaustive):

 The victim is under investigation or receiving disciplinary action for

misconduct and subsequently makes a report of sexual assault.

 The victim used illicit substances at some time after the assault, even if the

use may be attributed to coping with trauma.

 The victim engaged in misconduct after reporting the sexual assault.

 The victim had previously engaged in an unprofessional relationship with

the subject, but had terminated the relationship prior to the assault.

 The victim engaged in misconduct that is not close in time to the sexual

assault, even if it was reasonably foreseeable that such misconduct would

be discovered during the course of the investigation (such as the victim

engaging in an adulterous relationship with an individual other than the

subject).

 The victim is suspected of making a false allegation of sexual assault.

8 Dep’t of Def. Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures, Glossary

(Mar. 28, 2013, Incorporating Change 3, May 24, 2017), 117.

9 An “unprofessional relationship” is a relationship between the victim and accused that violated law, regulation, or policy in place at the time of the assault.
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

7

 The victim engages in misconduct during the reporting or investigation of

the sexual assault (such as making false official statements during the

course of the investigation).

c. Methodology for identifying sexual assault cases and victims:

o To identify sexual assault cases and victims, all closed cases from the relevant

time frame that list at least one of the above included sexual offenses as a crime

that was investigated should be collected from the MCIOs.

o A case is labeled “closed” after a completed MCIO investigation has been

submitted to a commander to make an initial disposition decision, any action

taken by the commander has been completed, and documentation of the outcome

has been provided to the MCIO.

10

o Each Service should identify all of its Service member victims from all closed

cases from the relevant time frame, even if the case was investigated by another

Service’s MCIO.

d. Time frame for collection of data:

o The Services should report collateral misconduct data for the two most recent

fiscal years preceding the report due date for which data are available. The data

should be provided separately for each fiscal year and should include only closed

cases as defined above. For example, the Department’s report due September 30,

2021, should include data for closed cases from fiscal years 2019 and 2020.

e. Definition of “covered individual”:

o Section 547 of the FY19 NDAA defines “covered individual” as “an individual

who is identified as a victim of a sexual assault in the case files of a military

criminal investigative organization.” This definition should be clarified as

follows: “an individual identified in the case files of a MCIO as a victim of sexual

assault while in title 10 status.”

o For the purposes of this study, victims are those identified in cases closed during

the applicable time frame.

f. Replacement of the term “accused”:

o Section 547 of the FY19 NDAA uses the phrase “accused of collateral

misconduct.” To more accurately capture the frequency with which collateral

misconduct is occurring, the term “accused of” should be replaced with the term

10 This definition of “closed case” mirrors the definition used by the DAC-IPAD’s Case Review Working Group. 

See DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, AND DEFENSE OF SEXUAL ASSAULT IN THE 

ARMED FORCES THIRD ANNUAL REPORT 21 n.28 (Mar. 2019), available at

https://dacipad.whs.mil/images/Public/08-Reports/DACIPAD_Report_03_Final_20190326_Web.pdf. 
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APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

8

“suspected of,” defined as follows: instances in which the MCIO’s investigation 

reveals facts and circumstances that would lead a reasonable person to believe 

that the victim committed an offense under the UCMJ.

11

o Examples of a victim suspected of collateral misconduct include (but are not

limited to) the following situations:

 The victim disclosed engaging in conduct that could be a violation of the

UCMJ (and was collateral to the offense).

 Another witness in the sexual assault investigation stated that the victim

engaged in conduct that could be a violation of the UCMJ (and was

collateral to the offense).

 The subject of the investigation stated that the victim engaged in conduct

that could be a violation of the UCMJ (and was collateral to the offense).

 In the course of the sexual assault investigation, an analysis of the victim’s

phone, urine, or blood reveals evidence that the victim engaged in conduct

that could be a violation of the UCMJ (and was collateral to the offense).

o This definition of “suspected of” does not require preferral of charges, a formal

investigation, or disciplinary action against the victim for the collateral

misconduct. However, if any of those actions have occurred regarding collateral

misconduct, or if there is evidence of collateral misconduct from other sources

available, such victims should also be categorized as suspected of collateral

misconduct even if the MCIO case file does not contain the evidence of such

misconduct.

 For example, if in pretrial interviews the victim disclosed collateral

misconduct, such a victim would be counted as suspected of collateral

misconduct.

g. Definition of “adverse action”:

o The term “adverse action” applies to an officially documented command action

that has been initiated against the victim in response to the collateral misconduct.

o Adverse actions required to be documented in collateral misconduct reports are

limited to the following:

 Letter of reprimand (or Service equivalent) or written record of individual

counseling in official personnel file;

 Imposition of nonjudicial punishment;

 Preferral of charges; or

11 Cf. United States v. Cohen, 63 M.J. 45, 50 (C.A.A.F. 2006) (stating that determining whether a person is a 

“suspect” entitled to warnings under Article 31(b) prior to interrogation “is an objective question that is answered by 

considering all the facts and circumstances at the time of the interview to determine whether the military questioner 

believed or reasonably should have believed that the servicemember committed an offense”) (internal citations 

omitted).
G-10

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

9

 Initiation of an involuntary administrative separation proceeding.

o The Committee recommends limiting the definition of adverse action to the above

list for purposes of this reporting requirement to ensure consistency and accuracy

across the Services in reporting and to avoid excessive infringement on victim

privacy. The Committee recognizes the existence of other adverse administrative

proceedings or actions that could lead to loss of special or incentive pay,

administrative reduction of grade, loss of security clearance, bar to reenlistment,

adverse performance evaluation (or Service equivalent), or reclassification.

h. Methodology for counting “number of instances”:

o Cases in which a victim is suspected of more than one type of collateral

misconduct should be counted only once; where collateral misconduct is reported

by type, it should be counted under the most serious type of potential misconduct

(determined by UCMJ maximum punishment) or, if the victim received adverse

action, under the most serious collateral misconduct identified in the adverse

action.

o For cases in which a victim received more than one type of adverse action

identified above, such as nonjudicial punishment and administrative separation,

reporting should include both types of adverse action.

Recommendation 2: Victims suspected of making false allegations of sexual assault should not 

be counted as suspected of collateral misconduct. 

Recommendation 3: For purposes of the third statistical data element required by section 547, 

the Department should report not only the percentage of all Service member victims who are 

suspected of collateral misconduct but also the percentage of the Service member victims who 

are suspected of collateral misconduct and then receive an adverse action for the misconduct. 

These two sets of statistics would better inform policymakers about the frequency with which 

collateral misconduct is occurring and the likelihood of a victim receiving an adverse action for 

collateral misconduct once he or she is suspected of such misconduct. 

Recommendation 4: The Department should include in its report data on the number of 

collateral offenses that victims were suspected of by type of offense (using the methodology 

specified in section h of Recommendation 1) and the number and type of adverse actions taken 

for each of the offenses, if any. This additional information would aid policymakers in fully 

understanding and analyzing the issue of collateral misconduct and in preparing training and 

prevention programs. 

Recommendation 5: To facilitate production of the future collateral misconduct reports required 

by section 547, the Services should employ standardized internal documentation of sexual 

assault cases involving Service member victims suspected of engaging in collateral misconduct

as defined for purposes of this reporting requirement.
G-11

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

10

The Committee would like to express its sincere appreciation to the Services for their 

collaboration and feedback on how to improve this reporting requirement, and to the Department 

for the opportunity to provide input on this important matter. 

Sincerely,

Martha S. Bashford 

Chair

Enclosures: 

1. Department of Defense’s draft Report on Allegations of Collateral Misconduct Against

Individuals Identified as the Victim of Sexual Assault in the Case Files of a Military Criminal

Investigative Organization; U.S. Coast Guard Report on Allegations of Collateral

Misconduct Against Victims of Sexual Assault; and Department of the Air Force

Supplemental Report on Allegations of Collateral Misconduct Against Victims of Sexual

Assault

2. Comparison of Service Collateral Misconduct Definitions and Methodologies

3. Comparison of Service Collateral Misconduct Data

4. Supplemental Information from the Services Related to the June 2019 Department of

Defense Draft Report on Collateral Misconduct
G-12

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

ENCLOSURE 1
G-13

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

ENCLOSURE 1 – Draft DoD Report Reviewed by DAC-IPAD and Supplemental Service Information 
G-14

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
G-15

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT
G-16

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
G-17

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT
G-18

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
G-19

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT
G-20

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
G-21

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT
G-22

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
G-23

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT
G-24

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

DEPARTMENT OF THE AIR FORCE HEADQUARTERS UNITED STATES AIR FORCE

WASHINGTON DC 20330

THE DEPARTMENT OF THE AIR FORCE SUPPLEMENTAL REPORT ON ALLEGATIONS OF

COLLATERAL MISCONDUCT AGAINST VICTIMS OF SEXUAL ASSAULT

I. INTRODUCTION

On 12 March 2019, pursuant to section 547 of the John S. McCain National Defense 

Authorization Act for Fiscal Year 2019 (NDAA FY19), each Service was required to report the 

following information pertaining to victims of sexual assault for the period of April 1, 2017 to 

March 311, 2019: (1) the number of instances an identified victim of sexual assault in a 

military criminal investigation was accused of misconduct or crimes collateral to the sexual 

assault; (2) the number of instances in which adverse action was taken against those 

individuals for collateral misconduct; and (3) the percentage of sexual assault investigations 

that involved such an accusation or adverse action. 

II. RELEVANT DEFINITIONS

In order to ensure accuracy of the data and consistency across the Services, the Air Force 

adopted the following definitions from the Joint Service Committee for purposes of this report: 

a. Sexual Assault Investigation: Investigation into an alleged violation of Article 120 or

Article 125 conducted by the Service’s Military Criminal Investigative Organization (MCIO). 

These investigations are conducted into allegations of sexual assault that have a Department of 

Defense nexus, regardless of the identity of the alleged victim. 

b. Victim of Sexual Assault: Victim is defined as any Air Force member on active duty or in

a reserve component at the time of the alleged sexual assault. Only Air Force members are 

subject to disciplinary action for collateral misconduct.

c. Collateral Misconduct: This includes any allegation of misconduct that is punishable

under the Uniform Code of Military Justice (UCMJ) and is directly related to the incident which 

formed the basis of the sexual assault allegation. Additionally, the collateral misconduct must 

have been discovered as a direct result of the investigation into the sexual assault and during the 

criminal investigation. Examples include, but are not limited to: underage drinking, 

fraternization, adultery, illegal drug use or possession, etc. 

d. Accused: A qualifying victim is considered accused of collateral misconduct if the

MCIO’s sexual assault investigation revealed circumstances that could potentially support the 

taking of adverse action against the victim (e.g. underage drinking). Accused in this context is 

1 The Memorandum from the DoD Office of General Counsel requested data from April 1, 2017 to March 30, 2019.

Because the month of March has 31 days, the Services included March 31

st in the reporting period. 
G-25

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

Page 2 of 4

not triggered by the preferral of court-martial charges and does not necessarily mean that a 

separate investigation was opened against a qualifying sexual assault victim.

e. Adverse Action: This includes any documented disciplinary action taken in response to

the collateral misconduct, including: written counseling; Article 15 punishment; administrative 

separation; and court-martial. 

III. METHODOLOGY

In coordination with the Air Force Office of Investigation (AFOSI), a list of all sexual assault 

investigations that were investigatively closed (completed) between 1 April 2017 and 31 March 

2019 was obtained. This data was further filtered to focus on those cases specifically involving 

an active duty victim. From this list, AFOSI was able to identify the named victims in each 

investigation; some investigations contained more than one victim. This information was 

provided to a team of judge advocates to review. In addition to the names provided by AFOSI, 

the Army provided names of Air Force victims that reported a sexual assault to their MCIO. 

Because the Air Force does not maintain the requested information in a central database or case 

management system, a team of judge advocates performed an independent review of the 

identified investigations to answer the following questions for each victim: (1) was the victim 

investigated for misconduct collateral to their report of sexual assault; (2) if yes, did the 

command take adverse action against the victim for that collateral misconduct; and (3) if yes, 

what type of adverse action did the command take? The information received during this review 

was the basis for the data initially provided in the prior report. The information received did not 

include the details of the alleged misconduct, except to specify cases where Air Force victims

were identified as having been accused of making false allegations.

Subsequent to the prior report, the DAC-IPAD requested “a list of the collateral misconduct that 

each accused victim in the report was accused of and the adverse action taken, if any,” and “the 

number of cases in which a victim was investigated for a false allegation of sexual assault and 

the adverse action taken, if any in each case.”

In order to compile this information, base-level judge advocates reviewed each case file and any 

other information available to provide the nature of the misconduct the victim was accused of 

and the type of action, if any. In reviewing this information, a number of cases previously 

included in the data set in error were excluded2

, and a number of cases that had not previously 

been identified as containing accusations of false allegations were also identified. 

IV. DATA

The data below pertains to the period of April 1, 2017 to March 31, 2019:

2 The cases excluded either (1) did not in fact contain evidence that the victim was accused of or disciplined for 

misconduct, (2) did not contain evidence of misconduct that met the above definition of collateral misconduct, (3) 

were duplicate cases where the same victim and same alleged misconduct were reported multiple times or as both an 

alleged false allegations and as collateral misconduct, or (4) were not Air Force victims. 
G-26

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

Page 3 of 4

Total Number of 

SA Investigations 

Completed3

Total Number of 

SA Investigations 

Involving Air Force

victim

Total Number of Instances 

in SA Investigations Where 

Victim Was Accused of 

Collateral Misconduct

Total Number of Instances in 

SA Investigations Where 

Adverse Action Was Taken as 

a Result of Collateral 

Misconduct

2,895 1,753 105** 40**

Of the collateral misconduct reported, 5 cases involved an allegation that the victim’s report of 

sexual assault was falsified. Two of those cases resulted in adverse action. The affected numbers 

are marked with asterisks (**). Based on the data received above, the following calculations 

were determined:

Over % of SA

Investigations Where 

Victim Was Accused of 

Collateral Misconduct4

% of SA Investigations 

Involving Air Force 

Victims Where Victim 

Was Accused of 

Collateral Misconduct

Over % of SA

Investigations Where 

Victim Received 

Adverse Action for 

Collateral Misconduct

% of SA Investigations 

Involving Air Force 

Victims Where Victim 

Received Adverse Action

for Collateral 

Misconduct

3.63% 5.99% 1.38% 2.28%

Based on the additional details of the collateral misconduct reviewed, the following allegations 

and adverse actions were totaled: 

Primary 

Allegation of 

Collateral 

Misconduct**

Number 

of 

Victims 

Accused

% LOC/LOA

/LOR

Article 

15 NJP

LOR & 

Discharge

NJP & 

Discharge

Courtmartial & 

Discharge

105 19 12 2 5 2

Underage Drinking 25 23.81% 1 2

Orders or Policy 

Violations (Other 

than Underage 

Drinking or 

Unprofessional 

Relationship)

20 19.05% 2 2 1 1

Adultery, 

Fraternization, or 

Unprofessional 

Relationship

15 14.29% 5 2

Drug Use 10 9.52% 1 2 1 1 1

Sexual Assault or 

Abusive Sexual 

Contact

10 9.52% 2 1

Assault & Battery 8 7.62% 5 1 1 1

False Official 

Statement (Other 

than False 

Allegation)

6 5.71% 2 1 1

3 A “completed” or “investigatively closed” investigation refers to those cases where the Air Force Office of Special 

Investigations (AFOSI) report of investigation is published and disseminated for command action. 4 Includes all sexual assault allegations, regardless of whether victim was an Air Force member.
G-27

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

Page 4 of 4

False Allegation of 

Sexual Assault 5 4.76% 1 1

Drunk Driving 4 3.81%

Absent Without 

Leave 1 0.95% 

Insubordination 1 0.95% 1

** Cases where the victim was accused of multiple types of collateral misconduct are listed 

under the most serious alleged misconduct. Cases where the victim was accused of making a 

false allegation as well as other misconduct are listed under alleged false allegations.
G-28

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
G-29

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

Commandant

United States Coast Guard

2703 Martin Luther King Jr Ave, SE, Stop 7213

Washington, DC 20593-7618

Staff Symbol: CG-094

Phone: (202) 372-3806

U.S. COAST GUARD REPORT ON ALLEGATIONS OF COLLATERAL MISCONDUCT

AGAINST VICTIMS OF SEXUAL ASSAULT

I. INTRODUCTION.

Pursuant to section 547 of the John S. McCain National Defense Authorization Act for Fiscal 

Year 2019 (NDAA FY19), each Service was required to report the following information 

pertaining to victims of sexual assault for the period of April 1, 2017 to March 31, 2019: (1) 

the number of instances an identified victim of sexual assault in a military criminal 

investigation was accused of misconduct or crimes collateral to the sexual assault; (2) the 

number of instances in which adverse action was taken against those individuals for collateral 

misconduct; and, (3) the percentage of sexual assault investigations that involved such an 

accusation or adverse action. 

II. RELEVANT DEFINITIONS.

In order to ensure accuracy of the data and consistency across the Services, the Coast Guard

adopted the following definitions from the Joint Service Committee for purposes of this report:

a. Sexual Assault Investigation: Investigation into an alleged violation of Article 120 or

Article 125 conducted by the Service’s Military Criminal Investigative Organization (MCIO). 

These investigations are conducted into allegations of sexual assault that have a nexus to the 

Armed Forces, regardless of the identity or status of the victim.

b. Victim of Sexual Assault: Victim is defined as any Coast Guard member on active duty

at the time of the alleged sexual assault. Only Coast Guard members are subject to disciplinary 

action under the Uniform Code of Military Justice (UCMJ) for collateral misconduct. This does 

include Coast Guard Reservists on active duty orders. 

c. Collateral Misconduct: This includes any allegation of misconduct that is directly related

to the incident that is the basis of the sexual assault allegation and that was revealed during the 

investigation. Examples include, but are not limited to: Failure to obey order or regulation 

(prohibited relationship), underage drinking, fraternization, adultery, illegal drug use or 

possession, etc. 

d. Accused of Collateral Misconduct: A qualifying victim is considered accused of

collateral misconduct if the MCIO’s sexual assault investigation revealed circumstances that 

could potentially support the taking of adverse action against the victim (e.g., underage drinking,

prohibited relationship, etc.). Accused in this context is not triggered by the preferral of courtmartial charges.
G-30

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

2

e. Adverse Action: This includes any documented disciplinary action taken in response to

the collateral misconduct, including: written counseling; Article 15 punishment; administrative 

separation; and court-martial. 

III. METHODOLOGY.

The Coast Guard Investigative Service (CGIS) provided a list of all sexual assault investigations 

between 1 April 2017 and 31 March 2019 including victim names, victims’ civil or military 

status, case status, and a summary of investigation to the Office of Military Justice (CG-LMJ).

This data was filtered to include only completed cases. The cases were furthered filtered by 

removing cases with civilian victims (including dependents) and unknown victims, leaving cases 

specifically involving an active duty victim. From this list, CG-LMJ requested the personnel

files of those listed from the Coast Guard Personnel Service Center, Military Records Section. 

Each victim’s personnel file was reviewed for adverse action. Any adverse action was checked 

against the investigation summary. If adverse action documented actions uncovered during the 

investigation, the victim was determined to have received an adverse action for collateral 

misconduct. Further information was requested from CGIS and local units when apparent 

collateral misconduct could not be verified. The information received during this review is the 

basis for the data below.

IV. DATA.

The data below pertains to the period of April 1, 2017 to March 31, 2019:

Total Number of SA 

Investigations 

Completed

by Subject

Total Number of SA 

Investigations Involving 

Coast Guard Victims

Total Number of 

Instances in SA 

Investigations Where 

There was Potential 

Misconduct by the 

Victim

Total Number of 

Instances in SA 

Investigations Where 

Adverse Action Was 

Taken as a Result of 

Misconduct

465 262 53 6

Based on the data received above, the following calculations were determined:

% of Instances in SA 

Investigations Where 

There was Potential 

Misconduct by the 

Victim

% of SA Investigations 

Involving Coast Guard 

Victims Where Victim 

Received Adverse Action

20% 2%
G-31

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT
G-32

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

ENCLOSURE 2
G-33

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

Definition of "accused" of collateral 

misconduct

Army Study

accused = MCIO's SA investigation revealed a 

potential UCMJ violation by the victim, directly 

related to the sexual assault that could support  the 

taking of adverse action against the victim (e.g., 

underage drinking). "Accused" does not imply 

charges were preferred.

Navy/MC Study accused =  inquiry into the collateral misconduct was 

actually initiated. 

Air Force Study

accused =  MCIO's SA investigation revealed 

circumstances that could potentially support the 

taking of adverse action against the victim (e.g., 

underage drinking). Does not require a separate 

investigation to be opened against victim or the

preferral of charges.

Coast Guard Study

accused = MCIO's SA investigation revealed 

circumstances that could potentially support the 

taking of adverse action against the victim (e.g., 

underage drinking, prohibited relationship, 

etc.). "Accused" in this context is not triggered 

by the preferral of court‐martial charges.

Variances Across the Services: 

1. Definition of "accused": Army, AF, and CG had JAs look at investigative files to identify potential collateral misconduct. Navy and MC went to victim commanders to request

information.

2. Investigative status of cases reviewed: Army included both cases with complete investigations pending command action and cases with completed command action. AF looked

at cases with complete investigations with either pending or completed command action. Navy and MC looked only at cases with completed command action. CG didn't specify.

3.  Inclusion of Reservists and National Guard: Army included reservists in federal status but not NG. AF and CG included only active duty members. It is unclear whether Navy, MC,

or CGincludedreservists.

4. Inclusion of victims from cases investigated by other Service MCIOs: Army did not include any Army victims if case investigated by other Service MCIO. Navy and MC included all

Navy and MC victims from other Service MCIO investigations. AF included AF victims from MCIO investigations conducted by other Services, where known. CG doesn't specify.

5. Treatment of false SA reports by victims:  Navy and MC did not include these victims in study but did indicate their numbers.

The Army, AF, and CG did include these Service members in study.

6. Definition of sexual assault investigation: The Army included only penetrative sexual assault investigations in its data collection. The other Services included both penetrative and

contact offenses and possibly additional Article 120 offenses.

(1) the victim was accused of (an inquiry was initiated into) 

misconduct collateral to their report of SA; (2) if so, whether

command took adverse action for that misconduct; (3) if so, the type 

of adverse action taken.

(1) was the victim investigated for misconduct collateral to their 

report of SA; (2) if yes, did command take adverse action for that 

misconduct; (3) if yes, what kind of adverse action did command

take?

Service Data Collection Methodology

 CID generated list of all SA investigations closed or placed in final 

investigation status. CID identified named Army victims (RA & USAR). 

OTJAG separated CID list by jurisdiction and sent to trial counsel at 

field offices to review CID investigations and any subsequent inquiry, 

investigation, or adverse action to answer the following questions:

Collateral Misconduct Criteria

(1) was the victim involved in misconduct collateral to their report of 

sexual assault; (2) if yes, did command take adverse action against 

victim for the misconduct; (3) if yes, what type of adverse action did

command take?

If the adverse action documented that the actions were uncovered 

during the investigation, the victim was determined to have received 

an adverse action for collateral misconduct. Further information was 

requested from CGIS and local units when apparent collateral 

misconduct couldn't be verified.

NCIS provided list of completed SA investigations with Navy or MC 

victim. Navy also collected names of Navy and MC victims in SAs 

reported to other Services. Names of victims forwarded to 

commands responsible for each individual case for determination 

of whether:

AFOSI provided list of all SA investigations investigatively closed 

(completed). Data filtered to focus on active duty victims. AFOSI 

identified victim names. Info provided to JA team to review. Army 

provided names of AF victims in CID investigations. Team of JA 

performed independent review of identified investigations to answer 

following questions:

CGIS provided a list of all SA investigations including victim names, 

military or civilian status, case status, and a summary of the 

investigation. Data filtered to include only completed cases and 

removing civilian and unknown victims. CG‐LMJ requested the personnel 

files of those listed. Any adverse action in the personnel file was 

reviewed against the investigation summary.

DAC‐IPAD Analysis of Draft DoD Collateral Misconduct Report 

ENCLOSURE 2 – Comparison of Service Collateral Misconduct Definitions and Methodologies
G-34

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

ENCLOSURE 3
G-35

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

U.S. Army* U.S. Navy** U.S. Marine 

Corps***

U.S. Air 

Force****

U.S. Coast 

Guard

Total for All 

Services

1,206 1,686 826 1,753 262 5,733

146 21 11 105 53 336

15 12 10 40 6 83

12% 1% 1% 6% 20% 6%

10% 57% 91% 38% 11% 25%

1% 1% 1% 2% 2% 1%

* U.S. Army originally reported 154 accused of collateral misconduct.

** U.S. Navy: originally reported 52 accused of collateral misconduct; 22 received adverse action. 

*** U.S. Marine Corps originally reported 12 accused of collateral misconduct; 11 received adverse action. 

**** U.S. Air Force originally reported 130 accused of collateral misconduct; 45 received adverse action. 

U.S. Army 

(n=146) U.S. Navy (n=21) U.S. Marine 

Corps (n=11)

U.S. Air Force 

(n=105)

U.S. Coast 

Guard (n=53)

38% 19% 27% 24% 15%

30% 38% 9% 14% 60%

3% 10% 9% 10% 2%

14% 24% 36% 19% 15%

0% 0% 0% 5% 0%

15% 10% 18% 29% 8%

100% 100% 100% 100% 100%

U.S. Army (n=15) U.S. Navy (n=12) U.S. Marine 

Corps (n=10)

U.S. Air Force 

(n=40)

U.S. Coast 

Guard (n=6)

27% 0% 0% 0% 0%

27% 8% 30% 48% 33%

40% 67% 50% 30% 50%

7% 17% 0% 0% 0%

0% 0% 0% 5% 17%

0% 8% 0% 0% 0%

0% 0% 10% 18% 0%

0% 0% 10% 0% 0%

100% 100% 100% 100% 100%

DAC‐IPAD Analysis of Draft DoD Collateral Misconduct Report (September 2019)

Article 15 Nonjudicial Punishment

Discharge/Separation

Court Martial/CM & Discharge

LOR/Article 15 + Discharge

False Report*

Other (i.e., DUI, Assault, AWOL, Art. 133, etc.)

Liberty Restriction

Percentage of accused Service member victims who  receive adverse action 

for collateral misconduct

Percentage of Service member victims accused of collateral misconduct

Number of Service member victims in cases closed between 

Apr 1, 2018, and Mar 31, 2019

ENCLOSURE 3 – Comparison of Service‐Provided Collateral Misconduct Data 

Number of Service member victims "accused" of collateral misconduct 

in cases closed between Apr 1, 2018, and Mar 31, 2019

Type of Alleged Collateral Misconduct

Underage Drinking

Adultery/Fraternization/ Inappropriate Relationship

Drug Use

Violation of Order or Policy

Verbal Counseling

Retirement

Adverse Action Taken for Collateral Misconduct

Letter of Reprimand (LOR) (or Service equivalent)

Collateral Misconduct and Service Member Victims

Percentage of (all) Service member victims who receive adverse action for 

collateral misconduct

 Number of instances when adverse action was taken against a Service 

member victim "accused" of collateral misconduct

*A false report as defined by each Service.
G-36

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

ENCLOSURE 4
G-37

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

ENCLOSURE 4 – Supplemental Information from the Services Related to the June 2019

Department of Defense Draft Report on Collateral Misconduct

1 Prepared by DAC-IPAD Staff from the referenced emails received from the Services

TYPE OF 

COLLATERAL 

MISCONDUCT 

The DAC-IPAD requested from each Service a list of the collateral misconduct

that each accused victim in the report was accused of and the adverse action 

taken, if any. Adverse action information was also requested for the cases 

identified by the Services as false allegations of sexual assault. 

U.S. Army Of the 146 cases involving a victim “accused” of collateral misconduct: 

• 37.7% (55) involved underage drinking: 4 received Article 15 nonjudicial

punishment (NJP), 1 received a counseling.

• 13.7% (20) involved adultery: 1 received a general officer memorandum of

reprimand (GOMOR).

• 14.4% (21) involved violation of an order or policy: 1 received a GOMOR, and

1 received an administrative separation (ADSEP).

• 13% (19) involved fraternization: 2 received NJP, 2 received a counseling, and

1 received a GOMOR.

• 4.8% (7) involved sexual assault.

• 3.4% (5) involved false statements [not including false reports].

• 3.4% (5) involved inappropriate/prohibited relationship: 1 received a Battalionlevel letter of reprimand (LOR), and 1 received a counseling.

• 2.7% (4) involved drug use.

• 2.1% (3) involved indirect collateral misconduct (future misconduct attributed

to sexual trauma).

• 2.1% (3) were reported by unit as “unknown.”

• (2) involved assault.

• (1) involved DUI [driving under the influence].

• (1) involved AWOL [absent without leave].

8 cases involved an investigation or allegation of false reporting by the victim. Of

those, 3 resulted in an Article 15, 2 resulted in separation, 2 resulted in no adverse 

action, and 1 is still pending. 

One final note concerning the disparity between the number of investigations by the

Army and those by other Services: when running the initial data call, CID included 

only investigations of sexual assault, per the legal definition. Therefore, only 

penetrative offenses or attempted offenses—rape, sexual assault, forcible sodomy—

were included.

(Email from LTC Stephanie Cooper, USA, to COL Steven Weir et al., July 15, 2019, 

3:58 p.m.; email from LTC Stephanie Cooper, USA, to COL Steven Weir, August 15,

2019, 4:00 p.m.; email from Janet Mansfield to Julie Carson et al, Sept. 9, 2019, 10:11 

a.m., on file with the DAC-IPAD)
G-38

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

ENCLOSURE 4 – Supplemental Information from the Services Related to the June 2019

Department of Defense Draft Report on Collateral Misconduct

2 Prepared by DAC-IPAD Staff from the referenced emails received from the Services

U.S. Navy The Navy originally reported 55 victims accused of collateral misconduct, with adverse 

action taken in 22 cases. Further review of the misconduct reported by commands 

revealed that only 21 victims had been accused of collateral misconduct, with only 12

of those cases resulting in adverse action. The original error in reporting was due to a 

misunderstanding by commands of what constituted “collateral” misconduct.

Out of the revised number of cases involving collateral misconduct, there were:

• 6 cases of fraternization: 3 resulted in NJP, 1 resulted in written counseling.

• 4 cases of underage drinking: 1 resulted in NJP.

• 3 cases of liberty policy violation (drinking or missing curfew): 2 resulted in

NJP, 1 resulted in imposition of liberty restriction.

• 2 cases of adultery: 1 resulted in NJP.

• 2 cases of drug use (cocaine in both cases): 1 resulted in administrative

separation (ADSEP).

• 2 cases of being “drunk and disorderly” (onboard ship): neither resulted in

adverse action.

• 1 case of drunk driving: resulted in NJP.

• 1 case of “sexual imprisonment” (civilian conviction): resulted in ADSEP for

commission of serious offense (the sexual imprisonment perpetrated by the

subject as part of a group occurred in same timeframe that the subject was

himself sexually assaulted by another member of that same group).

Upon further review, there were 5 cases involving false allegations of sexual assault

during the reporting period [not included in report as collateral misconduct]. Of those 5 

cases, 2 resulted in adverse action by the Navy (NJP) while 1 is the subject of federal 

prosecution that is still ongoing at this time.

Summary: Of the 1,686 cases involving sexual assault during the reporting period, 

1.2% involved an accusation against the victim of collateral misconduct. Of the 

accusations of collateral misconduct, 57.1% resulted in adverse action against the 

victim (0.7% of the total number of cases). 

(Email from LT James Kraemer, USN, to COL Steven Weir et al., August 9, 2019, 

12:03 p.m., on file with the DAC-IPAD.) 
G-39

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

ENCLOSURE 4 – Supplemental Information from the Services Related to the June 2019

Department of Defense Draft Report on Collateral Misconduct

3 Prepared by DAC-IPAD Staff from the referenced emails received from the Services

U.S. Marine Corps The Marine Corps reported 12 victims accused of collateral misconduct and adverse 

action taken in 11 cases. Further review revealed that 1 case was included by mistake, 

and adverse action was actually taken in 10 cases. 

• Orders violation: 4 cases (all received NJP)

• Underage drinking: 3 cases (all received formal counseling)

• 1 case each of DUI, 112a [drug use], and 133 [conduct unbecoming]: (10%

each) (NJP for DUI, NJP and ADSEP for 112a, retirement in grade for 133).

• 1 case of adultery (not with the accused, no adverse action)

In more than 98% of the sexual assault cases, the victim was neither accused of nor 

punished for collateral misconduct. In the small number of cases in which 

commanders did investigate the victim’s alleged misconduct, 70% involved prior 

misconduct by the victim (underage drinking that received prior counseling, for 

example). In the remaining 3 cases (DUI, 112a, conduct unbecoming) out of a total of 

826 cases, the timing and nature of the sexual assault allegation together with the 

nature of the misconduct, caused the commander to believe that punishment for the 

victim’s misconduct was appropriate, notwithstanding the report of sexual assault. 

• The Marine Corps had 5 cases [not included in the report as collateral

misconduct] in which the person reporting the sexual assault was investigated

for a false allegation. In 4 of the 5 cases, the person received nonjudicial

punishment for making a false allegation. In the 5th case, the person pled guilty

at summary court-martial and was administratively separated for commission of

a serious offense (making a false statement) and for extortion (receiving money

by threatening to make a false report).

(Email from Maj Paul Ervasti, USMC, to COL Steven Weir et al., July 31, 2019, 4:59 

p.m.; email from Maj Paul Ervasti, USMC, to Julie Carson, Sept. 4, 2019, 3:49 p.m.;

email from Maj Paul Ervasti, USMC, to Julie Carson, Sept. 4, 2019, 5:02 p.m., on file

with the DAC-IPAD.)
G-40

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

ENCLOSURE 4 – Supplemental Information from the Services Related to the June 2019

Department of Defense Draft Report on Collateral Misconduct

4 Prepared by DAC-IPAD Staff from the referenced emails received from the Services

U.S. Air Force Of the 105 cases* involving a victim “accused” of collateral misconduct: 

• 23.8% (25) involved underage drinking: 1 received a letter of counseling/letter

of admonishment/letter of reprimand (LOC/LOA/LOR), 2 received NJP.

• 19.0% (20) involved orders or policy violations (other than underage drinking,

fraternization or unprofessional relationship): 2 received LOC/LOA/LOR, 2

received NJP, 1 received LOR & discharge, and 1 received NJP & discharge.

• 14.3% (15) involved adultery, fraternization, or unprofessional relationship: 5

received LOC/LOA/LOR, and 2 received NJP.

• 9.5% (10) involved drug use: 1 received LOC/LOA/LOR, 2 received NJP, 1

received LOR & discharge, 1 received NJP & discharge, and 1 was courtmartialed and discharged.

• 9.5% (10) involved sexual assault (counterclaim that was not a false allegation):

2 received LOC/LOA/LOR and 1 received NJP.

• 7.6% (8) involved assault: 5 received LOC/LOA/LOR, 1 received NJP, 1

received NJP & discharge, and 1 was court-martialed and discharged.

• 5.7% (6) involved false official statement (not related to a false allegation): 2

received LOC/LOA/LOR, 1 received NJP, and 1 received NJP & discharge.

• 3.8% (4) involved drunk driving: no adverse action taken.

• 1% (1) involved AWOL [absent without leave]: no adverse action taken.

• 1% (1) involved insubordination: received NJP.

• 4.8% (5) involved a false allegation of sexual assault: 1 received

LOC/LOA/LOR, and 1 received NJP & discharge.

In cases in which there were multiple allegations of collateral misconduct, the most

serious allegation was counted for this purpose. 

There were 5 cases investigated for a false allegation, as noted above, but only 2

resulted in adverse action: an LOC/LOA/LOR in 1 case, and Article 15 and discharge 

in 1 case.

* The Air Force will provide a supplemental report. After further review of the cases,

we determined that there were cases previously reported as collateral misconduct that

did not meet the definition.

(Email from Lt Col Jane Male, USAF, to COL Steven Weir et al., August 9, 2019,

11:16 a.m., on file with the DAC-IPAD, and The Department of the Air Force 

Supplemental Report on Allegations of Collateral Misconduct Against Victims of

Sexual Assault (2019), pp. 3–4.) 
G-41

APPENDIX G: SEPTEMBER 16, 2019, LETTER FROM DAC-IPAD CHAIR MARTHA S. BASHFORD TO THE 

SECRETARY OF DEFENSE SUBMITTING THE COMMITTEE’S ANALYSIS OF AND RECOMMENDATIONS RELATED TO 

THE DEPARTMENT OF DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

ENCLOSURE 4 – Supplemental Information from the Services Related to the June 2019

Department of Defense Draft Report on Collateral Misconduct

5 Prepared by DAC-IPAD Staff from the referenced emails received from the Services

U.S. Coast Guard Cases were counted only for 1 offense, although some cases had multiple offenses 

(e.g., underage drinking and prohibited relationship). 

“Accused” (Potential) Collateral Misconduct by Charge 

underage drinking 8 15%

prohibited relationship (Art. 

92) 27 51%

fraternization 4 8%

adultery 1 2%

false official statement (not 

false reports) 2 4%

drug use 1 2%

sex in the barracks (Art. 92) 7 13%

rape 1 2%

prostitution (Art. 134) 1 2%

failure to obey 1 2%

53 100%

Six (6) Cases with Adverse Action 

1. Prohibited relationship—negative administrative comment

2. Prohibited relationship—nonjudicial punishment

3. Prostitution—nonjudicial punishment

4. Rape—general court-martial (scheduled for August 2019)

5. Prohibited relationship—negative administrative comment

6. False official statement—nonjudicial punishment

There were only 2 cases of false official statements and only 1 ended in NJP (Art. 15) 

for a violation of Art. 107. 

(Email from LT Adam Miller, USCG, to Ms. Julie Carson, July 16, 2019, 5:00 p.m., on 

file with the DAC-IPAD.) 
G-42

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
H-1

APPENDIX H: OCTOBER 2, 2019, LETTER FROM THE DEPARTMENT OF DEFENSE GENERAL 

COUNSEL TO DAC-IPAD CHAIR MARTHA S. BASHFORD RESPONDING TO THE COMMITTEE’S 

ANALYSIS OF AND RECOMMENDATIONS RELATED TO THE DEPARTMENT OF DEFENSE 

INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT

APPENDIX H. OCTOBER 2, 2019, LETTER FROM THE 

DEPARTMENT OF DEFENSE GENERAL COUNSEL TO 

DAC-IPAD CHAIR MARTHA S. BASHFORD RESPONDING

TO THE COMMITTEE’S ANALYSIS OF AND 

RECOMMENDATIONS RELATED TO THE DEPARTMENT OF 

DEFENSE INITIAL SEXUAL ASSAULT VICTIM COLLATERAL 

MISCONDUCT REPORT
H-2

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
H-3

APPENDIX H: OCTOBER 2, 2019, LETTER FROM THE DEPARTMENT OF DEFENSE GENERAL 

COUNSEL TO DAC-IPAD CHAIR MARTHA S. BASHFORD RESPONDING TO THE COMMITTEE’S 

ANALYSIS OF AND RECOMMENDATIONS RELATED TO THE DEPARTMENT OF DEFENSE 

INITIAL SEXUAL ASSAULT VICTIM COLLATERAL MISCONDUCT REPORT
H-4

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
I-1

APPENDIX I: COMMITTEE PUBLIC MEETINGS, PREPARATORY SESSIONS, AND PRESENTERS

APPENDIX I. COMMITTEE PUBLIC MEETINGS, 

PREPARATORY SESSIONS, AND PRESENTERS

DAC-IPAD PUBLIC MEETINGS

MEETING DATE 

AND LOCATION TOPICS AND PRESENTERS

DAC-IPAD PUBLIC 

MEETING 13

August 23, 2019

Doubletree by Hilton 

Crystal City 

300 Army Navy Drive

Arlington, Virginia

DAC-IPAD Data Working Group Presentation of Conviction and 

Acquittal Rates and Overview of the Draft Department of Defense Report 

on Allegations of Collateral Misconduct Against Individuals Identified 

as the Victim of Sexual Assault in the Case Files of a Military Criminal 

Investigative Organization

DAC-IPAD Member Question-and-Answer Session Regarding the Draft 

Department of Defense Report on Allegations of Collateral Misconduct 

Against Individuals Identified as the Victim of Sexual Assault in the Case 

Files of a Military Criminal Investigative Organization

• Lieutenant Colonel Adam Kazin, U.S. Army, Policy Branch Chief, 

Criminal Law Division, Office of the Judge Advocate General

• Lieutenant James Kraemer, U.S. Navy, Head of the Sexual Assault 

Prevention and Response Policy Branch, Criminal Law Division, Office 

of the Judge Advocate General

• Major Paul Ervasti, U.S. Marine Corps, Judge Advocate, Military Justice 

Policy and Legislation Officer, Military Justice Branch, Judge Advocate 

Division

• Lieutenant Colonel Jane M. Male, U.S. Air Force, Deputy of the Military 

Justice Division, Air Force Legal Operations Agency

• Lieutenant Adam Miller, U.S. Coast Guard, Legal Intern, Office of 

Military Justice 

Perspectives of Services’ Military Justice Division Chiefs Regarding 

Conviction and Acquittal Rates, the Case Adjudication Process, and 

Victim Declination in the Military Justice Process

• Colonel Patrick Pflaum, U.S. Army, Chief, Criminal Law Division

• Captain Robert P. Monahan, Jr., U.S. Navy, Deputy Assistant Judge 

Advocate General (Criminal Law) and Director, Office of the Judge 

Advocate General’s Criminal Law Policy Division

• Lieutenant Colonel Adam M. King, U.S. Marine Corps, Military Justice 

Branch Head, U.S. Marine Corps Judge Advocate Division

• Colonel Julie Pitvorec, U.S. Air Force, Chief, U.S. Air Force Government 

Trial and Appellate Counsel Division

• Captain Vasilios Tasikas, U.S. Coast Guard, Chief, Office of Military 

Justice
I-2

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

DAC-IPAD PUBLIC MEETINGS

MEETING DATE 

AND LOCATION TOPICS AND PRESENTERS

DAC-IPAD PUBLIC 

MEETING 13

(Continued)

Perspectives of Services’ Special Victims’ Counsel / Victims’ Legal Counsel 

Program Managers Regarding Conviction and Acquittal Rates, the Case 

Adjudication Process, and Victim Declination in the Military Justice 

Process

• Colonel Lance Hamilton, U.S. Army, Program Manager, Special Victims’ 

Counsel Program

• Captain Lisa B. Sullivan, U.S. Navy, Chief of Staff, Victims’ Legal 

Counsel Program

• Lieutenant Colonel William J. Schrantz, U.S. Marine Corps, Officer-inCharge, Victims’ Legal Counsel Organization, Judge Advocate Division, 

HQMC

• Colonel Jennifer Clay, U.S. Air Force, Chief, Special Victims’ Counsel 

Division

• Ms. Christa A. Specht, U.S. Coast Guard, Chief, Office of Member 

Advocacy Division

Perspectives of Services’ Trial Defense Service Organization Chiefs 

Regarding Conviction and Acquittal Rates, the Case Adjudication 

Process, and Victim Declination in the Military Justice Process

• Colonel Roseanne Bennett, U.S. Army, Chief, Trial Defense Service

• Commander Stuart T. Kirkby, U.S. Navy, Director, Defense Counsel 

Assistance Program

• Colonel Valerie Danyluk, U.S. Marine Corps, Chief Defense Counsel

• Colonel Christopher Morgan, U.S. Air Force, Chief, Trial Defense 

Division, Air Force Legal Operations, Joint Base Andrews

• Commander Shanell King, U.S. Coast Guard, Chief of Defense Services

Case Review Working Group Status Update

Data Working Group Presentation of 2018 Case Adjudication Data 

Report Plan

Committee Deliberations on Department of Defense Report on 

Allegations of Collateral Misconduct Against Individuals Identified as 

the Victim of Sexual Assault in the Case Files of a Military Criminal 

Investigative Organization; Presenter Testimony; Services’ Written 

Responses to DAC-IPAD Questions Regarding Conviction and Acquittal 

Rates, the Case Adjudication Process, and Victim Declination; DACIPAD Future Planning
I-3

APPENDIX I: COMMITTEE PUBLIC MEETINGS, PREPARATORY SESSIONS, AND PRESENTERS

DAC-IPAD PUBLIC MEETINGS

MEETING DATE 

AND LOCATION TOPICS AND PRESENTERS

DAC-IPAD PUBLIC 

MEETING 14

September 14, 2019

Telephonic Meeting

Public Access:

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Committee Deliberations on the Draft DAC-IPAD Analysis of and 

Recommendations Regarding the Department of Defense’s 2019 Sexual 

Assault–Related Collateral Misconduct Report and Future Report 

Requirements

DAC-IPAD PUBLIC 

MEETING 15

November 15, 2019

Doubletree by Hilton 

Crystal City

300 Army Navy Drive

Arlington, Virginia

Protect Our Defenders’ Perspective on Military Sexual Assault 

Prosecutions and Sentencing 

• Mr. Don Christensen, President, Protect Our Defenders

Committee Final Deliberations and Vote on the DAC-IPAD’s Sexual 

Assault Case Adjudication Report for Fiscal Years 2015–2018

Case Review Working Group Presentation and Deliberations

Article 32/Referral Working Group Presentation

Committee Deliberations Regarding the Service’s Responses to DACIPAD Request for Information (RFI) Set 11 and Testimony from the 

August 23, 2019, DAC-IPAD Public Meeting

Collateral Misconduct Report Status Update

2020 Military Installation Site Visit Update

Court-Martial Observations Update
I-4

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

DAC-IPAD PUBLIC MEETINGS

MEETING DATE 

AND LOCATION TOPICS AND PRESENTERS

DAC-IPAD PUBLIC 

MEETING 16

February 14, 2020

The Westin Arlington 

Gateway Hotel

801 North Glebe Road

Arlington, Virginia 22203

Military Judges’ Perspectives Regarding the Military Justice System and 

Military Sexual Assault Cases—Including Conviction and Acquittal Rates

• Colonel (Ret.) J. Wesley (Wes) Moore, U.S. Air Force 

• Colonel (Ret.) Jeffery Nance, U.S. Army 

• Captain (Ret.) Bethany L. Payton-O’Brien, U.S. Navy 

• Colonel (Ret.) Andrew Glass, U.S. Army 

Committee Deliberations Regarding the Military Judge’s Testimony

Committee Final Deliberations on the DAC-IPAD’s Draft Fourth Annual 

Report Chapters 1–5 and Committee Vote on Complete Report

Updates for the Committee Regarding 2020 Military Installation Site 

Visits and Court-Martial Observations 

2020 National Defense Authorization Act Presentation and Discussion

• Colonel Patrick Pflaum, U.S. Army, Chief, Criminal Law Division, 

Office of the Trial Judge Advocate General
I-5

APPENDIX I: COMMITTEE PUBLIC MEETINGS, PREPARATORY SESSIONS, AND PRESENTERS

CASE REVIEW WORKING GROUP PREPARATORY SESSIONS 

MEETING DATE 

AND LOCATION TOPICS AND PRESENTERS

Case Review Working 

Group Preparatory 

Session 14

August 22, 2019

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Briefing from the staff and the DAC-IPAD criminologist on data results 

from the Air Force investigative case file reviews.

Case Review Working Group discussion on data presentation and next 

phase planning.

Discussion on questions for the August 23, 2019, DAC-IPAD meeting 

speakers.

Case Review Working 

Group Preparatory 

Session 15

October 15, 2019

Telephonic Session:

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Case Review Working Group deliberations on proposed observations from 

case reviews.

Case Review Working 

Group Preparatory 

Session 16

October 30, 2019

Telephonic Session:

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Case Review Working Group deliberations on proposed findings, 

observations, and recommendations from case reviews.
I-6

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

CASE REVIEW WORKING GROUP PREPARATORY SESSIONS 

MEETING DATE 

AND LOCATION TOPICS AND PRESENTERS

Case Review Working 

Group Preparatory 

Session 17

November 14, 2019

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Case Review Working Group final deliberations on proposed findings, 

observations, and recommendations from case reviews.

Status update from the staff on the data processing from the case reviews.

Case Review Working 

Group Preparatory 

Session 18

February 13, 2020

One Liberty Center

875 N. Randolph St.

Arlington, Virginia 

Briefing from the staff and the DAC-IPAD criminologist on data results 

from the Air Force, Navy, and Marine Corps investigative file reviews.

Case Review Working Group discussion on various data analyses for 

inclusion in the data report and a timeline for completing the data report.
I-7

APPENDIX I: COMMITTEE PUBLIC MEETINGS, PREPARATORY SESSIONS, AND PRESENTERS

POLICY WORKING GROUP PREPARATORY SESSIONS 

SESSION DATE 

AND LOCATION TOPICS AND PRESENTERS

Policy Working Group 

Preparatory Session 11

January 24, 2019

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Review of the Expedited Transfer Presentation to the DAC-IPAD at the 

Public Meeting on January 25, 2019.

Policy Working Group 

Articles 32, 33 and 34 

Preparatory Session 1

October 7, 2019

Telephonic Session:

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Working Group Membership and Consideration of Topics:

• DoD Office of General Counsel Request for Review of Judicial 

Proceedings Panel Recommendations and Related Issues

• Related Topics Identified by DAC-IPAD Members

• Related Topics Identified by the Services or DAC-IPAD Staff

Policy Working Group 

Articles 32, 33 and 34 

Preparatory Session 2

November 14, 2019

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Policy Working Group Strategic Planning.
I-8

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

POLICY WORKING GROUP PREPARATORY SESSIONS 

SESSION DATE 

AND LOCATION TOPICS AND PRESENTERS

Policy Working Group 

Articles 32, 33 and 34 

Preparatory Session 3

February 13, 2020

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Policy Working Group Strategic Planning.

DATA WORKING GROUP PREPARATORY SESSION 

SESSION DATE 

AND LOCATION TOPICS AND PRESENTERS

Data Working Group 

Preparatory Session

January 24, 2019

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Status of Criminologist’s Appointment to the DAC-IPAD Staff.

Overview of RFI Process and Data Collection Topics of Interest.

Strategic Planning.
I-9

APPENDIX I: COMMITTEE PUBLIC MEETINGS, PREPARATORY SESSIONS, AND PRESENTERS

DAC-IPAD PREPARATORY SESSION

MEETING DATE 

AND LOCATION TOPICS AND PRESENTERS

Committee Preparatory 

Session

August 22, 2019

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Annual Ethics Training for Members 

• Ms. Danica Irvine Kobylski, DoD Office of the General Counsel, 

Standards of Conduct Office

Review of DoD Collateral Misconduct Study and Meeting Preparation

Review of Service Responses to RFI Set 11 and Meeting Preparation; Site 

Visits Discussion; Next Study Topics and Working Groups

Member Review of Read-Ahead Materials

Case Review Working Group Status Update and Recent Case Law Update

2018 Court Martial Case Adjudication Data Presentation

Committee Preparatory 

Session

November 14, 2019

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Updates from the Case Review Working Group; Policy Working Group; 

and Information Briefing to Case Review and Policy Working Group 

Members on Military Sentencing Initiatives from 2013 to the Present.

Committee Preparatory 

Session

February 13, 2020

One Liberty Center

875 N. Randolph St.

Arlington, Virginia

Updates from the Case Review Working and Policy Working Group.

Annual Ethics Training for Committee Members.

• Mr. Dean Raab, DoD Office of the General Counsel, Standards of 

Conduct Office

Committee Review of Member Edits to Draft Fourth Annual Report.
I-10

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
J-1

APPENDIX J: ACRONYMS AND ABBREVIATIONS

APPENDIX J. ACRONYMS AND ABBREVIATIONS

ACMO Advisory Committee Management Officer 

ADSEP administrative separation

AFOSI Air Force Office of Special Investigations

AWOL absent without leave

C.A.A.F. Court of Appeals for the Armed Forces

CGIS Coast Guard Investigative Service

CG-LMJ Coast Guard, Office of Military Justice

CM court-martial

C.M.A.Court of Military Appeals

C.M.R. Court-Martial Reports 

CID U.S. Army Criminal Investigation Command 

CRWG Case Review Working Group

CSO contact sexual offense 

DAC-IPAD Defense Advisory Committee on Investigation, Prosecution, and 

Defense of Sexual Assault in the Armed Forces

DFO Designated Federal Officer

DNA deoxyribonucleic acid

DoD Department of Defense

DoDI Department of Defense Instruction

DoD SAPRO Department of Defense Sexual Assault Prevention and Response 

Office

DUI driving under the influence (drunk driving)

DWG Data Working Group 

ET expedited transfer

FACA Federal Advisory Committee Act

FAP Family Advocacy Program
J-2

DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

FY fiscal year

GC DoD General Counsel for the Department of Defense 

GCM general court-martial 

GCMCA general court-martial convening authority

GOMOR general officer memorandum of reprimand

HQE highly qualified expert

IO investigating officer

JA Judge Advocate

JAG judge advocate general

JPP Judicial Proceedings Panel (Judicial Proceedings Since 2012 

Amendments Panel)

JSC Joint Service Committee

LOA letter of admonishment

LOC letter of counseling

LOR letter of reprimand 

MCIO military criminal investigative organization 

MCM Manual for Courts-Martial

MOA memorandum of agreement

MOU memorandum of understanding

MRE Military Rules of Evidence

MJ military judge

MJRG Military Justice Review Group

NG National Guard

N/n number

NCIS Naval Criminal Investigative Service

NDAA National Defense Authorization Act

NJP nonjudicial punishment
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APPENDIX J: ACRONYMS AND ABBREVIATIONS

OJTAG Office of the Judge Advocate General

PHO preliminary hearing officer

PSO penetrative sexual offense 

PTA pretrial agreement

PWG Policy Working Group

R.C.M. Rule or Rules for Courts-Martial

RFI request for information

RGE regular government employee 

ROI Report of Investigation

RSP Response Systems Panel (Response Systems to Adult Sexual Assault 

Crimes Panel)

SA sexual assault

SAPR Sexual Assault Prevention and Response

SAPRO Sexual Assault Prevention and Response Office

SGE special government employee 

SJA staff judge advocate

SPCM special court-martial

SPCMCA special court-martial convening authority

SVC special victims’ counsel

UCMJ Uniform Code of Military Justice

USA United States Army

USAF United States Air Force

U.S.C. United States Code

USCG United States Coast Guard

USMC United States Marine Corps

USN United States Navy

VLC victims’ legal counsel
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES
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APPENDIX K: SOURCES CONSULTED

APPENDIX K. SOURCES CONSULTED

1. Legislative Sources

a. Enacted Statutes 

5 U.S.C. App. §§ 1–16 (Federal Advisory Committee Act)

10 U.S.C. § 832 (Uniform Code of Military Justice) (2012)

10 U.S.C. § 832 (Uniform Code of Military Justice) (2014)

10 U.S.C. §§ 830, 832, 834 (Uniform Code of Military Justice) (2016)

10 U.S.C. §§ 823, 830, 832–834 (Uniform Code of Military Justice) (2019)

National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013)

Carl Levin and Howard P. “Buck” McKeon National Defense Authorization Act for Fiscal Year 2015, Pub. L. No. 113-

291, 128 Stat. 3292, 3374 (2014)

National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016)

National Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283 (2017)

John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, 132 Stat. 1636 (2018)

National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, Enacted S. 1790 (2019)

2. Judicial Decisions

U.S. Court of Appeals for the Armed Forces

United States v. Littrice, 13 C.M.R. 43, 47 (C.M.A. 1953)

United States v. Cohen, 63 M.J. 45, 50 (C.A.A.F. 2006)

3. Rules and Regulations

a. Executive Orders

Manual for Courts-Martial, United States (2012 edition)

Manual for Courts-Martial, United States (2016 edition)

Executive Order 13825, 83 Federal Register 9889 (March 18, 2018)

Manual for Courts-Martial, United States (2019 edition)

b. Department of Defense 

Department of Defense Instruction 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures (March 

28, 2013) (Incorporating Change 3, May 24, 2017)

Department of Defense Instruction 5505.11, Fingerprint Reporting Requirements (October 31, 2019)
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DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 

AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES

4. Meetings and Hearings

a. Public Meetings of the DAC-IPAD

Transcript of DAC-IPAD Public Meeting (January 19, 2017)

Transcript of DAC-IPAD Public Meeting (April 28, 2017)

Transcript of DAC-IPAD Public Meeting (July 21, 2017)

Transcript of DAC-IPAD Public Meeting (October 19, 2018)

Transcript of DAC-IPAD Public Meeting (January 25, 2019)

Transcript of DAC-IPAD Public Meeting (August 23, 2019)

Transcript of DAC-IPAD Public Meeting (September 14, 2019)

Transcript of DAC-IPAD Public Meeting (November 15, 2019)

Transcript of DAC-IPAD Public Meeting (February 14, 2020)

b. Public Meetings of the Judicial Proceedings Panel (JPP)

Transcript of Judicial Proceedings Panel Public Meeting (January 6, 2017)

c. Preparatory Sessions of the DAC-IPAD Working Groups

Transcript of the DAC-IPAD Case Review Working Group Preparatory Session (March 6, 2018) 

5. Military and Civilian Federal Policy 

a. Department of Defense

Memorandum from the Department of Defense General Counsel to the Secretaries of the Military Departments, subject: 

Report on Allegations of Collateral Misconduct Against Victims of Sexual Assault (March 12, 2019)

b. Department of Justice

U.S. Department of Justice, Justice Manual

6. Official Reports

a. DoD and DoD Agency Reports

Committee on The Uniform Code of Military Justice, Good Order and Discipline in the Army, Report to Honorable 

Wilber M. Brucker (January 18, 1960) 

Department of Defense, Report of the Task Force on the Administration of Military Justice in the Armed Forces (1972)

Military Justice Review Group, Report of the Military Justice Review Group, Part I: UCMJ Recommendations (December 

22, 2015)

b. Response Systems to Adult Sexual Assault Crimes Panel Report

Response Systems Panel, Report of the Response Systems to Adult Sexual Assault Crimes Panel (June 2014) 

c. Judicial Proceedings Panel Reports

Judicial Proceedings Panel, Report on Military Defense Counsel Resources and Experience in Sexual Assault Cases (April 

2017) 
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APPENDIX K: SOURCES CONSULTED

Subcommittee of the Judicial Proceedings Panel, Report on Barriers to the Fair Administration of Military Justice in Sexual 

Assault Cases (May 2017)

Judicial Proceedings Panel, Report on Sexual Assault Investigations in the Military (September 2017) 

Judicial Proceedings Panel, Report on Panel Concerns Regarding the Fair Administration of Military Justice in Sexual Assault 

Cases (September 2017)

d. Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed 

Forces Reports

Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, Initial 

Report (March 2017)

Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, Annual 

Report (March 2018)

Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, Third 

Annual Report (March 2019)

Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces, CourtMartial Adjudication Data Report (November 2019)

7. DAC-IPAD Requests for Information and Responses

Military Services’ Responses to DAC-IPAD Request for Information Set 11 (November 2019)

8. Books

Wayne LaFave, Jerold Israel, Nancy King, & Orin Kerr, Criminal Procedure (4th ed. 2019 update)

9. News Articles

Tom Jackman, “Jury Orders Blogger to Pay $8.4 Million to Ex-Army Colonel She Accused of Rape,” Washington Post

(August 11, 2017)

10. Letters, Emails, and Other Media

Letter from Mr. William Castle, Acting General Counsel for the Department of Defense, to the DAC-IPAD Chair 

Martha Bashford (June 7, 2018) 

Letter from Ms. Martha S. Bashford, Chair, DAC-IPAD, to the Secretary of Defense Regarding Article 140a, Uniform 

Code of Military Justice (September 13, 2018)

Letter from Ms. Martha S. Bashford, Chair, DAC-IPAD, to the Secretary of Defense Regarding Collateral Misconduct 

Study. (September 16, 2019) 

Letter from the Department of Defense General Counsel to DAC-IPAD Chair, Martha Bashford, Regarding the DACIPAD’s Analysis of the Department of Defense’s Draft Collateral Misconduct Report (October 2, 2019)

Memorandum from Ms. Martha Bashford, DAC-IPAD Chair, to DAC-IPAD members, Fiscal Year 2020 Guidance from 

the Chair for the DAC-IPAD’s Working Groups and the Committee (November 1, 2019)

CRWG Proposed Findings, Observations, and Recommendations attached at end of Meeting and Reference Materials, 

Public Meeting (November 15, 2019)