II 115th CONGRESS 1st Session S. 2141 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.

1. Short title This Act may be cited as the Military Justice Improvement Act of 2017 . 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. 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. 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. 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) . 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).