II 115th CONGRESS 1st Session S. 1543 IN THE SENATE OF THE UNITED STATES July 12, 2017 Mr. Blumenthal 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 improve protections for a member of the Armed Forces who is a survivor of a sexual assault during military service regarding the separation, or the characterization of any separation, of the member from the Armed Forces, to make additional changes to the authorities and procedures of boards for the correction of military records and discharge review boards, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the Protecting Military Honor Act . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Confidential review of characterization of terms of discharge of members who are survivors of sexual assault. Sec. 3. Authority for discharge review boards to refer certain applications for relief to the Physical Disability Board of Review. Sec. 4. Public availability of information related to disposition of claims regarding discharge or release of members of the Armed Forces when the claims involve sexual assault. Sec. 5. Training requirements. Sec. 6. Other improvements to authorities and procedures for the correction of military records. Sec. 7. Burdens of proof applicable to investigations and reviews related to protected communications of members of the Armed Forces and prohibited retaliatory actions. Sec. 8. Administrative separation protections for members of the Armed Forces who are survivors of sexual assault. Sec. 9. Department of Defense working group on administrative review boards. 2. Confidential review of characterization of terms of discharge of members who are survivors of sexual assault (a) Codification of current confidential process (1) Codification Chapter 79 of title 10, United States Code, is amended by inserting after section 1554a a new section 1554b consisting of— (A) a heading as follows: 1554b. Confidential review of characterization of terms of discharge of members of the armed forces who are survivors of sexual assault ; and (B) a text consisting of the text of section 547 of the Carl Levin and Howard P. Buck McKeon National Defense Authorization Act for Fiscal Year 2015 ( Public Law 113–291 ; 128 Stat. 3375; 10 U.S.C. 1553 note). (2) Clerical amendment The table of sections at the beginning of chapter 79 of such title is amended by inserting after the item relating to section 1554a the following new item: 1554b. Confidential review of characterization of terms of discharge of members of the armed forces who are survivors of sexual assault. . (3) Conforming repeal Section 547 of the Carl Levin and Howard P. Buck McKeon National Defense Authorization Act for Fiscal Year 2015 is repealed. (b) Terminology Section 1554b of title 10, United States Code, as added by subsection (a) of this section, is amended— (1) in subsection (a), by striking victim each place it appears and inserting survivor ; and (2) by striking sex-related each place it appears and inserting sexual assault . (c) Clarification of applicability to individuals who allege they were a survivor of sexual assault during military service Subsection (a) of such section 1554b, as so added, is further amended by inserting after sexual assault offense the following: , or alleges that the individual was the survivor of a sexual assault offense, . (d) Additional requirements for consideration of evidence Subsection (b) of such section 1554b, as so added, is amended— (1) by striking and at the end of paragraph (1); (2) by striking the period at the end of paragraph (2) and inserting ; and ; and (3) by adding at the end the following new paragraph: (3) to give liberal consideration to all available evidence that a sexual assault occurred, including evidence from sources other than records of the armed force concerned that may corroborate the individual’s account of the sexual assault (including evidence of changes in the individual’s behavior after the offense and other circumstantial evidence that may corroborate the individual’s account of the sexual assault). . (e) Medical advisory opinions in connection with survivors of sexual assault Such section 1554b, as so added, is further amended— (1) by redesignating subsection (d) as subsection (e); and (2) by inserting after subsection (c) the following new subsection (d): (d) Medical advisory opinions Any medical advisory opinion issued to a board established in accordance with this chapter in the case of a review carried out in accordance with the process established under this section shall include the opinion of a psychiatrist or psychologist with training in sexual trauma cases. . (f) Conforming amendments Such section 1554b, as so added, is further amended— (1) by striking Armed Forces each place it appears in subsections (a) and (b) and inserting armed forces ; (2) in subsection (a)— (A) by striking boards for the correction of military records of the military department concerned and inserting boards of the military department concerned established in accordance with this chapter ; and (B) by striking such an offense and inserting a sexual-assault offense ; (3) in subsection (b), by striking boards for the correction of military records and inserting boards of the military department concerned established in accordance with this chapter ; and (4) in subsection (e), as redesignated by subsection (e)(1) of this section— (A) in the subsection heading, by striking Sex-related and inserting Sexual assault ; (B) in paragraph (1), by striking title 10, United States Code and inserting this title ; and (C) in paragraphs (2) and (3), by striking such title and inserting this title . 3. Authority for discharge review boards to refer certain applications for relief to the Physical Disability Board of Review (a) Authority for discharge review boards To refer for disability review (1) Authority Subsection (b) of section 1553 of title 10, United States Code, is amended to read as follows: (b) (1) To reflect its findings, a board established under this section may— (A) change a discharge or dismissal; (B) issue a new discharge; or (C) in the case of a former member whose application for relief is based in whole or in part on matters relating to a sexual assault, post-traumatic stress disorder, or traumatic brain injury, refer the application for relief to the Physical Disability Board of Review established under section 1554a of this title for review under such section. (2) Any action of the board under this subsection is subject to review by the Secretary concerned. . (b) Treatment of referral Section 1554a of title 10, United States Code, is amended— (1) by redesignating subsection (f) as subsection (g); and (2) by inserting after subsection (e) the following new subsection (f): (f) Referrals from discharge review board (1) Except as provided in paragraph (2), a referral for review pursuant to section 1553(b)(1)(C) of this title shall be treated as a request for review by a covered individual for purposes of this section. (2) In the case of a referral for review pursuant to section 1553(b)(1)(C) of this title— (A) a previous disability determination by a Physical Evaluation Board shall not be required; and (B) subsection (c)(4) shall not apply. . 4. Public availability of information related to disposition of claims regarding discharge or release of members of the Armed Forces when the claims involve sexual assault (a) Boards for the correction of military records Section 1552(h) of title 10, United States Code, as added by section 533(a) of the National Defense Authorization Act for Fiscal Year 2017 ( Public Law 114–328 ), is amended by adding at the end the following new paragraph: (4) The number and disposition of claims decided during the calendar quarter preceding the calendar quarter in which such information is made available in which sexual assault is alleged to have contributed, whether in whole or in part, to the original characterization of the discharge or release of the claimant. . (b) Discharge review Boards Section 1553(f) of title 10, United States Code, as added by section 533(b) of the National Defense Authorization Act for Fiscal Year 2017, is amended by adding at the end the following new paragraph: (4) The number and disposition of claims decided during the calendar quarter preceding the calendar quarter in which such information is made available in which sexual assault is alleged to have contributed, whether in whole or in part, to the original characterization of the discharge or release of the claimant. . 5. Training requirements (a) Members of boards for the correction of military records Section 534(c)(1) of the National Defense Authorization Act for Fiscal Year 2017 ( Public Law 114–328 ; 10 U.S.C. 1552 note) is amended by adding at the end the following new sentence: This curriculum shall also address the proper handling of claims in which sexual assault is alleged to have contributed to the original characterization of the discharge or release of the claimant, including guidelines for the consideration of evidence substantiating such allegations in accordance with the requirements of section 1554b(b)(3) of title 10, United States Code. . (b) Department of Defense personnel who investigate claims of retaliation Section 546(a) of the National Defense Authorization Act for Fiscal Year 2017 is amended by striking section. and inserting section, including guidelines for the consideration of evidence substantiating such allegations in accordance with the requirements of section 1554b(b)(3) of title 10, United States Code. . 6. Other improvements to authorities and procedures for the correction of military records (a) Boards for the correction of military records (1) Use of secretarial authority to correct military records Section 1552(a)(1) of title 10, United States Code, is amended by striking may both places it appears and inserting shall . (2) Indexing of published decisions Paragraph (5) of section 1552(a) of title 10, United States Code, is amended to read as follows: (5) Each final decision of a board under this subsection shall be made available to the public in electronic form on a centralized Internet website. The information provided shall include a summary of each decision, to be indexed by subject matter, except that the Secretary shall protect the privacy of claimants by redacting all personally identifiable information. . (b) Discharge Review Boards (1) Repeal of 15-year statute of limitations on motions or requests for review Section 1553(a) of title 10, United States Code, is amended by striking the second sentence. (2) Telephonic presentation of evidence Section 1553(c) of title 10, United States Code, is amended in the second sentence by striking or by affidavit and inserting , by affidavit, or by telephone or video conference . (c) Effective date The amendments made by this section shall take effect on October 1, 2018. 7. Burdens of proof applicable to investigations and reviews related to protected communications of members of the Armed Forces and prohibited retaliatory actions (a) In general Section 1034 of title 10, United States Code, is amended— (1) by redesignating subsections (i) and (j) as subsections (j) and (k), respectively; and (2) by inserting after subsection (h) the following new subsection (i): (i) (1) For purposes of this section, there is sufficient basis to conclude that a personnel action prohibited by subsection (b) has occurred if the communication made by the member or former member was a contributing factor in the personnel action that was taken, or is to be taken, against the member or former member unless there is clear and convincing evidence that the same personnel action would have been taken in the absence of the communication. (2) A member or former member may demonstrate that the communication was a contributing factor in the personnel action through circumstantial evidence, such as evidence that— (A) the official taking the personnel action knew of the communication; and (B) the personnel action occurred within a period of time such that a reasonable person could conclude that the communication was a contributing factor in the personnel action. . (b) Effective date The amendments made by subsection (a) shall take effect on the date that is 30 days after the date of the enactment of this Act, and shall apply with respect to allegations pending or submitted under section 1034 of title 10, United States Code, on or after that date. 8. Administrative separation protections for members of the Armed Forces who are survivors of sexual assault (a) Covered member defined In this section, the term covered member means a member of the Armed Forces who is diagnosed with a mental health condition related to a sexual assault that occurred during the member’s service in the Armed Forces. (b) Limitations on separation for a mental disorder not constituting a physical disability (1) Review of diagnosis A covered member shall not be separated on the basis of a personality disorder or other mental disorder not constituting a physical disability, unless the diagnosis of such disorder has been— (A) corroborated by a peer or higher-level mental health professional; and (B) endorsed by the Surgeon General of the military department concerned. (2) Co-morbid PTSD diagnosis Unless found fit for duty by the disability evaluation system, a covered member shall not be separated on the basis of a personality disorder or other mental disorder not constituting a physical disability if service-related post-traumatic stress disorder is also diagnosed. (c) Effective date This section shall take effect 180 days after the date of the enactment of this Act. 9. Department of Defense working group on administrative review boards (a) Establishment and purpose The Secretary of Defense shall establish a Department of Defense working group for the purpose of identifying and making recommendations to the Secretary on best practices and procedures to be used by boards for the correction of military records and discharge review boards in carrying out their responsibilities under chapter 79 of title 10, United States Code, and in granting relief to claimants under that chapter. (b) Consultation In carrying out the responsibilities of the working group, members of the group shall consult, as appropriate, with civilian practitioners of military law and representatives of organizations that have experience in cases before boards for the correction of military records and discharge review boards. (c) Reports (1) Initial report Not later than 180 days after the date of the establishment of the working group, the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report containing the findings and recommendations of the working group. (2) Subsequent report (A) In general Not later than two years after the date of the establishment of the working group, the Secretary shall submit to the committees of Congress referred to in subparagraph (B) a report containing an evaluation conducted by the working group of all the recommendations of the working group that have been or are being implemented by boards for the correction of military records and discharge review boards of the military departments, including the results of the implementation of such recommendations. (B) Committees of Congress The committees of Congress referred to in this subparagraph are— (i) the Committee on Armed Services and the Committee on Veterans' Affairs of the Senate; and (ii) the Committee on Armed Services and the Committee on Veterans' Affairs of the House of Representatives.