Title: Military Justice Improvement Act of 2017
Policy area: Armed Forces and National Security

Summary:
Military Justice Improvement Act of 2017
This bill amends the Uniform Code of Military Justice (UCMJ) to grant independent military prosecutors the authority to decide whether to convene courts-martial for sexual assault cases and other serious crimes punishable by confinement of more than one year (currently, this authority lies within the chain of command). The bill allows the chain of command to retain authority to decide whether to prosecute serious crimes uniquely military in nature and all crimes punishable by less than one year of confinement.

[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2141 Introduced in Senate (IS)]

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115th CONGRESS
  1st Session
                                S. 2141

    To amend title 10, United States Code, to reform procedures for 
 determinations on disposition of charges and the convening of courts-
    martial for certain offenses under the Uniform Code of Military 
                    Justice, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 16, 2017

    Mrs. Gillibrand (for herself, Mr. Grassley, Mr. Blumenthal, Ms. 
 Murkowski, Mrs. Shaheen, Mr. Paul, Ms. Hirono, Mr. Heller, Mr. Wyden, 
 Ms. Baldwin, Mr. Menendez, Ms. Hassan, Mr. Heinrich, Mr. Franken, Ms. 
Warren, Mr. Merkley, Mr. Durbin, Mr. Leahy, Mr. Coons, Mr. Sanders, Mr. 
   Booker, Ms. Klobuchar, Mr. Udall, Mr. Brown, Mr. Kennedy, and Mr. 
    Bennet) introduced the following bill; which was read twice and 
              referred to the Committee on Armed Services

_______________________________________________________________________

                                 A BILL


 
    To amend title 10, United States Code, to reform procedures for 
 determinations on disposition of charges and the convening of courts-
    martial for certain offenses under the Uniform Code of Military 
                    Justice, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Military Justice Improvement Act of 
2017''.

SEC. 2. IMPROVEMENT OF DETERMINATIONS ON DISPOSITION OF CHARGES FOR 
              CERTAIN OFFENSES UNDER UCMJ WITH AUTHORIZED MAXIMUM 
              SENTENCE OF CONFINEMENT OF MORE THAN ONE YEAR.

    (a) Improvement of Determinations.--
            (1) Military departments.--With respect to charges under 
        chapter 47 of title 10, United States Code (the Uniform Code of 
        Military Justice), that allege an offense specified in 
        subsection (b) and not excluded under subsection (c), the 
        Secretary of Defense shall require the Secretaries of the 
        military departments to provide as described in subsection (d) 
        for the determinations as follows:
                    (A) Determinations under section 830 of such 
                chapter (article 30 of the Uniform Code of Military 
                Justice) on the preferral of charges.
                    (B) Determinations under section 830 of such 
                chapter (article 30 of the Uniform Code of Military 
                Justice) on the disposition of charges.
                    (C) Determinations under section 834 of such 
                chapter (article 34 of the Uniform Code of Military 
                Justice) on the referral of charges.
            (2) Homeland security.--With respect to charges under 
        chapter 47 of title 10, United States Code (the Uniform Code of 
        Military Justice), that allege an offense specified in 
        subsection (b) and not excluded under subsection (c) against a 
        member of the Coast Guard (when it is not operating as a 
        service in the Navy), the Secretary of Homeland Security shall 
        provide as described in subsection (d) for the determinations 
        as follows:
                    (A) Determinations under section 830 of such 
                chapter (article 30(a) of the Uniform Code of Military 
                Justice) on the preferral of charges.
                    (B) Determinations under section 830 of such 
                chapter (article 30 of the Uniform Code of Military 
                Justice) on the disposition of charges.
                    (C) Determinations under section 834 of such 
                chapter (article 34 of the Uniform Code of Military 
                Justice) on the referral of charges.
    (b) Covered Offenses.--An offense specified in this subsection is 
an offense as follows:
            (1) An offense under chapter 47 of title 10, United States 
        Code (the Uniform Code of Military Justice), for which the 
        maximum punishment authorized under that chapter includes 
        confinement for more than one year.
            (2) The offense of obstructing justice under section 931b 
        of title 10, United States Code (article 131b of the Uniform 
        Code of Military Justice), regardless of the maximum punishment 
        authorized under that chapter for such offense.
            (3) The offense of retaliation for reporting a crime under 
        section 932 of title 10, United States Code (article 132 of the 
        Uniform Code of Military Justice), regardless of the maximum 
        punishment authorized under that chapter for such offense.
            (4) A conspiracy to commit an offense specified in 
        paragraphs (1) through (3) as punishable under section 881 of 
        title 10, United States Code (article 81 of the Uniform Code of 
        Military Justice).
            (5) A solicitation to commit an offense specified in 
        paragraphs (1) through (3) as punishable under section 882 of 
        title 10, United States Code (article 82 of the Uniform Code of 
        Military Justice).
            (6) An attempt to commit an offense specified in paragraphs 
        (1) through (3) as punishable under section 880 of title 10, 
        United States Code (article 80 of the Uniform Code of Military 
        Justice).
    (c) Excluded Offenses.--Subsection (a) does not apply to an offense 
as follows:
            (1) An offense under sections 883 through 917 of title 10, 
        United States Code (articles 83 through 117 of the Uniform Code 
        of Military Justice).
            (2) An offense under section 933 or 934 of title 10, United 
        States Code (articles 133 and 134 of the Uniform Code of 
        Military Justice).
            (3) A conspiracy to commit an offense specified in 
        paragraph (1) or (2) as punishable under section 881 of title 
        10, United States Code (article 81 of the Uniform Code of 
        Military Justice).
            (4) A solicitation to commit an offense specified in 
        paragraph (1) or (2) as punishable under section 882 of title 
        10, United States Code (article 82 of the Uniform Code of 
        Military Justice).
            (5) An attempt to commit an offense specified in paragraph 
        (1) or (2) as punishable under section 880 of title 10, United 
        States Code (article 80 of the Uniform Code of Military 
        Justice).
    (d) Requirements and Limitations.--The disposition of charges 
covered by subsection (a) shall be subject to the following:
            (1) The determination whether to prefer such charges or 
        refer such charges to a court-martial for trial, as applicable, 
        shall be made by a commissioned officer of the Armed Forces 
        designated in accordance with regulations prescribed for 
        purposes of this subsection from among commissioned officers of 
        the Armed Forces in grade O-6 or higher who--
                    (A) are available for detail as trial counsel under 
                section 827 of title 10, United States Code (article 27 
                of the Uniform Code of Military Justice);
                    (B) have significant experience in trials by 
                general or special court-martial; and
                    (C) are outside the chain of command of the member 
                subject to such charges.
            (2) Upon a determination under paragraph (1) to refer 
        charges to a court-martial for trial, the officer making that 
        determination shall determine whether to refer such charges for 
        trial by a general court-martial convened under section 822 of 
        title 10, United States Code (article 22 of the Uniform Code of 
        Military Justice), or a special court-martial convened under 
        section 823 of title 10, United States Code (article 23 of the 
        Uniform Code of Military Justice).
            (3) A determination under paragraph (1) to prefer charges 
        or refer charges to a court-martial for trial, as applicable, 
        shall cover all known offenses, including lesser included 
        offenses.
            (4) The determination to prefer charges or refer charges to 
        a court-martial for trial, as applicable, under paragraph (1), 
        and the type of court-martial to which to refer under 
        subparagraph (B), shall be binding on any applicable convening 
        authority for the referral of such charges.
            (5) The actions of an officer described in paragraph (1) in 
        determining under that subparagraph whether or not to prefer 
        charges or refer charges to a court-martial for trial, as 
        applicable, shall be free of unlawful or unauthorized influence 
        or coercion.
            (6) The determination under paragraph (1) not to refer 
        charges to a general or special court-martial for trial shall 
        not operate to terminate or otherwise alter the authority of 
        commanding officers to refer charges for trial by summary 
        court-martial convened under section 824 of title 10, United 
        States Code (article 24 of the Uniform Code of Military 
        Justice), or to impose non-judicial punishment in connection 
        with the conduct covered by such charges as authorized by 
        section 815 of title 10, United States Code (article 15 of the 
        Uniform Code of Military Justice).
    (e) Construction With Charges on Other Offenses.--Nothing in this 
section shall be construed to alter or affect the preferral, 
disposition, or referral authority of charges under chapter 47 of title 
10, United States Code (the Uniform Code of Military Justice), that 
allege an offense for which the maximum punishment authorized under 
that chapter includes confinement for one year or less.
    (f) Policies and Procedures.--
            (1) In general.--The Secretaries of the military 
        departments and the Secretary of Homeland Security (with 
        respect to the Coast Guard when it is not operating as a 
        service in the Navy) shall revise policies and procedures as 
        necessary to comply with this section.
            (2) Uniformity.--The General Counsel of the Department of 
        Defense and the General Counsel of the Department of Homeland 
        Security shall jointly review the policies and procedures 
        revised under this subsection in order to ensure that any lack 
        of uniformity in policies and procedures, as so revised, among 
        the military departments and the Department of Homeland 
        Security does not render unconstitutional any policy or 
        procedure, as so revised.
    (g) Manual for Courts-Martial.--The Secretary of Defense shall 
recommend such changes to the Manual for Courts-Martial as are 
necessary to ensure compliance with this section.

SEC. 3. MODIFICATION OF OFFICERS AUTHORIZED TO CONVENE GENERAL AND 
              SPECIAL COURTS-MARTIAL FOR CERTAIN OFFENSES UNDER UCMJ 
              WITH AUTHORIZED MAXIMUM SENTENCE OF CONFINEMENT OF MORE 
              THAN ONE YEAR.

    (a) In General.--Subsection (a) of section 822 of title 10, United 
States Code (article 22 of the Uniform Code of Military Justice), is 
amended--
            (1) by redesignating paragraphs (8) and (9) as paragraphs 
        (9) and (10), respectively; and
            (2) by inserting after paragraph (7) the following new 
        paragraph (8):
            ``(8) with respect to offenses to which section 2(a) of the 
        Military Justice Improvement Act of 2017 applies, the officers 
        in the offices established pursuant to section 3(c) of that Act 
        or officers in the grade of O-6 or higher who are assigned such 
        responsibility by the Chief of Staff of the Army, the Chief of 
        Naval Operations, the Chief of Staff of the Air Force, the 
        Commandant of the Marine Corps, or the Commandant of the Coast 
        Guard;''.
    (b) No Exercise by Officers in Chain of Command of Accused or 
Victim.--Such section (article) is further amended by adding at the end 
the following new subsection:
    ``(c) An officer specified in subsection (a)(8) may not convene a 
court-martial under this section if the officer is in the chain of 
command of the accused or the victim.''.
    (c) Offices of Chiefs of Staff on Courts-Martial.--
            (1) Offices required.--Each Chief of Staff of the Armed 
        Forces or Commandant specified in paragraph (8) of section 
        822(a) of title 10, United States Code (article 22(a) of the 
        Uniform Code of Military Justice), as amended by subsection 
        (a), shall establish an office to do the following:
                    (A) To convene general and special courts-martial 
                under sections 822 and 823 of title 10, United States 
                Code (articles 22 and 23 of the Uniform Code of 
                Military Justice), pursuant to paragraph (8) of section 
                822(a) of title 10, United States Code (article 22(a) 
                of the Uniform Code of Military Justice), as so 
                amended, with respect to offenses to which section 2(a) 
                applies.
                    (B) To detail under section 825 of title 10, United 
                States Code (article 25 of the Uniform Code of Military 
                Justice), members of courts-martial convened as 
                described in subparagraph (A).
            (2) Personnel.--The personnel of each office established 
        under paragraph (1) shall consist of such members of the Armed 
        Forces and civilian personnel of the Department of Defense, or 
        such members of the Coast Guard or civilian personnel of the 
        Department of Homeland Security, as may be detailed or assigned 
        to the office by the Chief of Staff or Commandant concerned. 
        The members and personnel so detailed or assigned, as the case 
        may be, shall be detailed or assigned from personnel billets in 
        existence as of the effective date for this Act specified in 
        section 6.

SEC. 4. DISCHARGE USING OTHERWISE AUTHORIZED PERSONNEL AND RESOURCES.

    (a) In General.--The Secretaries of the military departments and 
the Secretary of Homeland Security (with respect to the Coast Guard 
when it is not operating as a service in the Navy) shall carry out 
sections 2 and 3 using personnel, funds, and resources otherwise 
authorized by law.
    (b) No Authorization of Additional Personnel or Resources.--
Sections 2 and 3 shall not be construed as authorizations for 
personnel, personnel billets, or funds for the discharge of the 
requirements in such sections.

SEC. 5. MONITORING AND ASSESSMENT OF MODIFICATION OF AUTHORITIES BY 
              DEFENSE ADVISORY COMMITTEE ON INVESTIGATION, PROSECUTION, 
              AND DEFENSE OF SEXUAL ASSAULT IN THE ARMED FORCES.

    Section 546(c) 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) in paragraph (1)--
                    (A) by striking ``on the investigation'' and 
                inserting ``on the following:
                    ``(A) The investigation''; and
                    (B) by adding at the end the following new 
                subparagraph:
                    ``(B) The implementation and efficacy of sections 2 
                through 4 of the Military Justice Improvement Act of 
                2017 and the amendments made by such sections.''; and
            (2) in paragraph (2), by striking ``paragraph (1)'' and 
        inserting ``paragraph (1)(A)''.

SEC. 6. EFFECTIVE DATE AND APPLICABILITY.

    (a) Effective Date and Applicability.--This Act and the amendments 
made by this Act shall take effect 180 days after the date of the 
enactment of this Act, and shall apply with respect to any allegation 
of charges of an offense specified in subsection (a) of section 2, and 
not excluded under subsection (c) of section 2, which offense occurs on 
or after such effective date.
    (b) Revisions of Policies and Procedures.--Any revision of policies 
and procedures required of the military departments or the Department 
of Homeland Security as a result of this Act and the amendments made by 
this Act shall be completed so as to come into effect together with the 
coming into effect of this Act and the amendments made by this Act in 
accordance with subsection (a).
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