I
105TH CONGRESS
1ST SESSION
H. R. 1072
To establish a commission to investigate certain policies and procedures with
respect to the military justice system, including policies and procedures
with respect to the investigation of reports of sexual misconduct, sexual
harassment, and unlawful gender discrimination.
IN THE HOUSE OF REPRESENTATIVES
MARCH 13, 1997
Mrs. MALONEY of New York introduced the following bill; which was referred
to the Committee on National Security
A BILL
To establish a commission to investigate certain policies and
procedures with respect to the military justice system,
including policies and procedures with respect to the
investigation of reports of sexual misconduct, sexual har-
assment, and unlawful gender discrimination.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Commission on Mili-
tary Justice and Fairness Act’’.
SEC. 2. ESTABLISHMENT OF COMMISSION.
(a) ESTABLISHMENT.—There is established a com-
mission to be known as the ‘‘Commission on Military Jus-
tice and Fairness’’ (in this Act referred to as the ‘‘Com-
mission’’).
(b) COMPOSITION.—The Commission shall be com-
posed of 15 members appointed as follows:
(1) Five members appointed by the President,
of whom one shall be chosen after consultation with
the Attorney General and one shall be chosen after
consultation with the Chief Justice of the United
States and not more than three of whom may be a
member of the Armed Forces on active duty or in
a retired status or a member of a reserve compo-
nent.
(2) Three members appointed by the majority
leader of the House of Representatives, not more
than one of whom may be a member of the Armed
Forces on active duty or in a retired status or a
member of a reserve component.
(3) Two members appointed by the minority
leader of the House of Representatives, not more
than one of whom may be a member of the Armed
Forces on active duty or in a retired status or a
member of a reserve component.
(4) Three members appointed by the majority
leader of the Senate, not more than one of whom
may be a member of the Armed Forces on active
duty or in a retired status or a member of a reserve
component.
(5) Two members appointed by the minority
leader of the Senate, not more than one of whom
may be a member of the Armed Forces on active
duty or in a retired status or a member of a reserve
component.
(c) INITIAL APPOINTMENTS.—Each member of the
Commission shall be appointed to the Commission not
later than 90 days after the date of the enactment of this
Act.
(d) CHAIRMAN.—There shall be a Chairman of the
Commission who shall be designated by the President at
the time of the appointment.
(e) PERIOD OF APPOINTMENT.—Each member shall
be appointed for the life of the Commission.
(f) VACANCIES.—Any vacancy shall be filled in the
same manner as the original appointment of a member
of the Commission.
(g) SECURITY CLEARANCES.—The Secretary of De-
fense shall provide expedited processing of security clear-
ances requested for members.
SEC. 3. FUNCTIONS OF COMMISSION.
The Commission shall investigate and make rec-
ommendations on the following:
(1) The existence of adequate safeguards for
members of the Armed Forces who report incidents
of sexual misconduct, sexual harassment, or unlaw-
ful gender discrimination, and whether adequate
protection from retribution is afforded to members
of the Armed Forces who report such incidents.
(2) The existence of adequate mechanisms for
investigating sexual misconduct, sexual harassment,
and unlawful gender discrimination in the Armed
Forces, including the existence of investigative mech-
anisms outside of the chain of command of a mem-
ber reporting allegations of such conduct.
(3) Whether investigating officers and trial
counsel in the Armed Forces are trained, and pos-
sess the resources and independence necessary, to
conduct fair and thorough investigations of allega-
tions of sexual misconduct, sexual harassment, and
unlawful gender discrimination.
(4) The number of incidents involving allega-
tions of sexual assault by members of the Armed
Forces that have been referred by a commanding of-
ficer for resolution through an administrative hear-
ing rather than court-martial proceedings, and the
reasons for such referrals.
(5) The availability of adequate mechanisms in
the Armed Forces for satisfactory resolution of com-
plaints of sexual misconduct, sexual harassment, or
unlawful gender discrimination, and whether the
award of damages and attorneys fees should be a
remedy available to military personnel who are vic-
tims of sexual misconduct, sexual harassment, or un-
lawful gender discrimination.
(6) Whether court-martial jurisdiction should
exist over non-service related offenses committed by
members of the Armed Forces.
(7) The procedures in the Armed Forces for ap-
prehending and charging an accused and the scope
of the discretionary power of commanding officers
with respect to such procedures and the court-mar-
tial trial process.
(8) The adequacy of the procedures for selec-
tion of jurors in the military justice system in pro-
tecting such jurors and ensuring impartial court-
martial trials.
(9) Whether permanent, uniform mechanisms
should be established to insulate judge advocate de-
fense counsel from other elements of the military
legal structure and provide such counsel with re-
sources equivalent to those resources available to
military trial counsel.
(10) Whether military judges should be af-
forded increased independence and some form of
tenure to protect them from retribution in response
to their rulings during the court-martial trial proc-
ess.
(11) The need for increased uniformity in sen-
tencing in the military justice system and whether
sentencing guidelines should be instituted.
(12) The adequacy and effectiveness of judicial
review of decisions regarding military personnel, and
whether the same right to Supreme Court review
should exist for courts-martial as for criminal cases
in State and Federal courts.
(13) The necessity for, and effectiveness of, cor-
rectional programs designed to rehabilitate offenders
to continue service as members of the Armed Forces
after serving a court-martial sentence.
(14) The procedural protections for enlisted
members of the Armed Forces who are career mili-
tary personnel and the power of commanding offi-
cers to deny reenlistment to such personnel who
have not yet qualified for retired pay.
(15) Statistical data collection and analysis
with respect to crime and sexual misconduct, sexual
harassment, and unlawful gender discrimination in
the Armed Forces, and whether such data is regu-
larly reported to the Federal Bureau of Investiga-
tion.
(16) The ability to exchange criminal records of
members of the Armed Forces among military courts
and other courts in the United States, and whether
information with respect to the criminal records of
members of the Armed Forces should regularly be
reported to the National Crime Information Center.
(17) Whether rulemaking committees that in-
clude civilian members and perform functions that
are similar to the functions performed by the rule-
making committees of the Judicial Conference of the
United States should be established for the military
justice system.
SEC. 4. REPORT.
Not later than one year after the date that all the
original members are appointed, the Commission shall
submit to the President and the Congress a report con-
taining a detailed statement of the Commission’s findings
and conclusions and the Commission’s recommendations
for administrative and legislative action.
SEC. 5. POWERS.
(a) HEARINGS
AND SESSIONS.—The Commission
may, for the purpose of carrying out this Act, hold such
hearings, sit and act at such times and places, take such
testimony, and receive such evidence as the Commission
considers appropriate. The Commission may administer
oaths to witnesses appearing before it.
(b) OBTAINING INFORMATION.— The Commission
may secure directly from any department or agency of the
United States information necessary to enable it to carry
out this Act. Upon request of the Chairman of the Com-
mission, the head of that department or agency shall fur-
nish that information to the Commission in a full and
timely manner.
(c) SUBPOENA POWER.—(1) The Commission may
issue a subpoena to require the attendance and testimony
of witnesses and the production of any evidence relating
to any matter under investigation by the Commission.
(2) If a person refuses to obey an order or subpoena
of the Commission that is issued in connection with a
Commission hearing, the Commission may apply to the
United States district court in the judicial district in which
the proceeding is held for an order requiring the person
to comply with the subpoena or order.
(c) STAFF.—(1) The Commission may, without re-
gard to the provisions of title 5, United States Code, gov-
erning appointments in the competitive service, appoint a
staff director and such additional personnel as may be
necessary to enable the Commission to perform its duties.
(2) The Commission may fix the pay of the staff di-
rector and other personnel without regard to the provi-
sions of chapter 51 and subchapter III of chapter 53 of
title 5, United States Code, relating to classification of
positions and General Schedule pay rates, except that the
rate of pay fixed under this paragraph for the staff direc-
tor may not exceed the rate payable for level V of the Ex-
ecutive Schedule under section 5316 of such title and the
rate of pay for other personnel may not exceed the maxi-
mum rate payable for grade GS–15 of the General Sched-
ule.
SEC. 8. OTHER ADMINISTRATIVE PROVISIONS.
(a) POSTAL AND PRINTING SERVICES.—The Com-
mission may use the United States mails and obtain print-
ing and binding services in the same manner and under
the same conditions as other departments and agencies of
the United States.
(b) MISCELLANEOUS ADMINISTRATIVE
AND SUP-
PORT SERVICES.—The Secretary of Defense shall furnish
the Commission, on a reimbursable basis, any administra-
tive and support services necessary for the Commission to
carry out its duties under this Act.
(c) EXPERTS AND CONSULTANTS.—The Commission
may procure temporary and intermittent services under
section 3109(b) of title 5, United States Code.
(d) STAFF OF FEDERAL AGENCIES.—Upon request
of the Commission, the head of any Federal department
or agency may detail, on a reimbursable basis, any of the
personnel of that department or agency to the Commission
to assist it in carrying out its duties under this Act.
(e) GIFTS, BEQUESTS, AND DEVISES.—The Commis-
sion may accept, use, and dispose of gifts, bequests, or
devises of services or property, both real and personal, for
the purpose of aiding or facilitating the work of the Com-
mission. Gifts, bequests, or devises of money and proceeds
from sales of other property received as gifts, bequests,
or devises shall be deposited in the Treasury and shall be
available for disbursement upon order of the Commission.
SEC. 9. PAYMENT OF COMMISSION EXPENSES.
(a) PAYMENT OUT OF DEPARTMENT OF DEFENSE
FUNDS.—The travel expenses and per diem allowances of
members and employees of the Commission, and the com-
pensation of employees of the Commission, shall be paid
out of funds available to the Department of Defense for
the payment of compensation, travel allowances, and per
diem allowances, respectively, of civilian employees of the
Department of Defense. The other expenses of the Com-
mission shall be paid out of funds available to the Depart-
ment of Defense for the payment of similar expenses in-
curred by that Department.
(b) PROMPT TRANSFER OF FUNDS.—The Secretary
of Defense shall promptly transfer funds to the Commis-
sion for payment of expenses incurred by the Commission
upon submission to the Department of Defense of the
amount of funds requested for such payment by the Chair-
man of the Commission.
SEC. 10. TERMINATION OF COMMISSION.
The Commission shall terminate not later than 90
days after submitting its report to the President and the
Congress pursuant to section 4.
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