I 117th CONGRESS 1st Session H. R. 3647 IN THE HOUSE OF REPRESENTATIVES June 1, 2021 Mr. Gohmert (for himself and Mr. Gosar ) introduced the following bill; which was referred to the Committee on Armed Services , and in addition to the Committee on the Judiciary , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To improve the military justice system, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the Justice for Warriors Act . (b) Table of contents The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Pretrial confinement. Sec. 3. Qualifications and selection of members for courts-martial. Sec. 4. Preliminary hearings and investigations. Sec. 5. Role of convening authority. Sec. 6. Prohibition on certain communications regarding courts-martial. Sec. 7. Adequate representation of defendants. Sec. 8. Votes required for conviction, sentencing, and other matters. Sec. 9. Electronic records of trial. Sec. 10. Petition for new trial. Sec. 11. Defense investigators for individuals accused of offenses under the Uniform Code of Military Justice. Sec. 12. Prohibition on involuntary separation as nonjudicial punishment for a charge brought under the Uniform Code of Military Justice. Sec. 13. Certiorari to the United States Court of Appeals for the Armed Forces. Sec. 14. Treatment of certain records of criminal investigations. 2. Pretrial confinement (a) Standard for pretrial confinement Section 809(d) of title 10, United States Code (article 9(d) of the Uniform Code of Military Justice), is amended to read as follows: (d) (1) No person may be ordered into arrest except for probable cause. (2) (A) Except as provided in subparagraph (B), no person may be ordered into confinement for more than seven days unless it is beyond a reasonable doubt that the person committed the offense for which confinement is ordered. (B) In the event that a determination with respect to reasonable doubt has not been made by the expiration of the seven day period described in the subparagraph (A), a person may be placed under in-home confinement pending such determination. . (b) Standard of proof for reviews of pretrial confinement Not later than 180 days after the date of the enactment of this Act, the President shall issue regulations revising subsection (i)(2)(A)(iii) of Rule For Courts-Martial 305 (as set forth in the Manual for Courts-Martial, 2019 edition, or any successor to such rule) to provide that the requirements for confinement under subsection (h)(2)(B) of such rule must be proved beyond a reasonable doubt. (c) Sentencing credit for pretrial confinement Not later than 180 days after the date of the enactment of this Act, the President shall issue regulations revising subsection (k) of Rule for Courts-Martial 305 (as set forth in the Manual for Courts-Martial, 2019 edition, or any successor to such rule) to provide that— (1) the remedy for noncompliance with subsection (f), (h), (i), or (j) of such rule shall be an administrative credit against the sentence adjudged for any confinement served as the result of such noncompliance; and (2) such credit shall be computed at the rate of 20 days credit for each day of confinement served as a result of such noncompliance. 3. Qualifications and selection of members for courts-martial (a) Member qualifications Section 825 of title 10, United States Code (article 25 of the Uniform Code of Military Justice), is amended by striking on active duty each place it appears. (b) Selection process Section 825(e) of title 10, United States Code (article 25 of the Uniform Code of Military Justice), is amended— (1) by amending paragraph (2) to read as follows: (2) (A) When convening a court-martial, the convening authority shall notify the Judge Advocate General of the armed force of which the convening authority is a member who shall select the members of the court-martial in accordance with subparagraph (B). (B) (i) After receiving a notification under subparagraph (A), the Judge Advocate General shall detail members of the armed forces at random to serve as members of the court-martial. The selection of members shall be made from a randomized list of potential members generated using a computer database that includes all members of the armed forces (including members serving on active duty and members of the reserve components) who are eligible to serve as members of the court martial. (ii) The Judge Advocate General shall detail not less than the number of members necessary to impanel the court-martial under section 829 of this title (article 29). (iii) When convening a court-martial in which the accused is a member of the reserve components, the Judge Advocate General shall ensure that not less than half of the panel members selected to serve on the court-martial are members of the reserve components. (C) No member of an armed force is eligible to serve as a member of a general or special court-martial in a case in which that member— (i) is the accuser or a witness for the prosecution; (ii) has acted as preliminary hearing officer or as counsel in the same case; or (iii) is assigned to the same unit as the accused. ; and (2) by striking paragraph (3). 4. Preliminary hearings and investigations (a) Preliminary hearing and investigation (1) In general Section 832 of title 10, United States Code (article 32 of the Uniform Code of Military Justice) is amended— (A) in the section heading by inserting and investigation after Preliminary hearing ; (B) in subsection (a)— (i) in paragraph (1)(B)— (I) by striking Under regulations and inserting (i) Under regulations ; and (II) by adding at the end the following: (ii) In a case in which an a preliminary hearing is waived under clause (i), the convening authority shall make a determination as to the disposition which shall be made of the case in the interest of justice and discipline, including whether the case should be referred for trial by general court-martial in accordance with section 834(b) of this title (article 34(B)). . (ii) by striking paragraph (2) and inserting the following new paragraphs: (2) A preliminary hearing shall include— (A) a thorough and impartial investigation of all the matters set forth in the charges and specifications, including inquiry as to the truth of the matter set forth in the charges and specifications; (B) a determination, which shall be binding on the convening authority as described in section 834 of this title (article 34), as to— (i) whether or not the specification alleges an offense under this chapter; (ii) whether or not it is beyond a reasonable doubt that the accused committed the offense charged; (iii) whether or not the convening authority has court-martial jurisdiction over the accused and over the offense; and (iv) whether or not the case shall be referred for trial by general court-martial; and (C) if the case shall not be referred for trial by general court-martial, a recommendation as to the disposition which shall be made of the case in the interest of justice and discipline. (3) The standards for the admissibility of evidence in a preliminary hearing shall be the same as the standards for the admissibility of evidence in a court-martial. ; (C) in subsection (b), by striking conducted by and inserting presided over by ; (D) by redesignating subsections (c) through (h) as subsections (d) through (i), respectively; (E) by inserting after subsection (b) the following new subsection: (c) Panel (1) In general The determinations under subsection (a)(2)(B) shall be made by an impartial panel composed of three members of the armed forces who— (A) are eligible to serve on a court-martial under section 825 of this title (article 25); and (B) may not be in a rank that is— (i) more than three ranks higher than the accused; or (ii) more than two ranks lower than the accused. (2) Detail of panel members (A) The preliminary hearing officer shall detail members to serve on the panel. (B) In addition to the members detailed under subparagraph (A), the preliminary hearing officer shall detail alternate members who may serve on the panel in the event that a panel member cannot fulfill the member’s duties. (3) Level of concurrence required All matters to be decided by the preliminary hearing panel shall be determined by the unanimous concurrence of all members present. ; and (F) in subsection (d), as so redesignated— (i) in paragraph (1), by striking reasoning and conclusions of the hearing officer with respect to the determinations under subsection (a)(2) and inserting reasoning and conclusions of the preliminary hearing panel with respect to determinations under subsection (a)(2) ; and (ii) in paragraph (2), by striking Recommendations for and inserting A determination with respect to . (2) Clerical amendment The table of sections at the beginning of subchapter VI of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), is amended by striking the item relating to section 832 (article 32) and inserting the following new item: 832. 32. Preliminary hearing and investigation required before referral to general court-martial. . (b) Investigative subpoena Section 846(d) of title 10, United States Code (article 46 of the Uniform Code of Military Justice) is amended— (1) in paragraph (1)(C), by striking the semicolon and inserting , including an investigation conducted as part of a preliminary hearing under section 832 of this title (article 32); ; and (2) by amending paragraph (2) to read as follows: (2) Investigative subpoena An investigative subpoena under paragraph (1)(C) may be issued before referral of charges to a court-martial only if— (A) a general court-martial convening authority has authorized counsel for the Government to issue such a subpoena; (B) a military judge issues such a subpoena pursuant to section 830a of this title (article 30a); or (C) an officer presiding over a preliminary hearing under section 832 of this title (article 32) issues such a subpoena. . 5. Role of convening authority (a) Referral for trial by convening authority (1) In general Section 834 of title 10, United States Code (article 33 of the Uniform Code of Military Justice) is amended— (A) in the section heading by striking Advice to convening authority before referral for trial and inserting Referral for trial by convening authority ; (B) by redesignating subsections (a) through (d) as subsections (b) through (e), respectively; (C) by inserting before subsection (b) the following new subsection: (a) Referral to general court-Martial (1) The convening authority may not refer a specification under a charge to a general court-martial unless— (A) the report of the preliminary hearing under section 832(d) of this title (article 32(d)) concludes that— (i) the specification alleges an offense under this chapter; (ii) it is beyond a reasonable doubt that the accused committed the offense charged; (iii) a court-martial would have jurisdiction over the accused and the offense; and (iv) the specification shall be referred to a general court-martial; or (B) the accused has waived a preliminary hearing under section 832(a)(B) of this title (article 32) and the convening authority determines, in accordance with subsection (b) of this section (article), that referral of the specification to a general court-martial is appropriate. (2) (A) Except as provided in subparagraph (B), if the report of the preliminary hearing indicates that charges and specifications shall be referred for trial by general court-martial, the convening authority shall make such referral. (B) The convening authority may elect not to make the referral required under subparagraph (A) only if the convening authority becomes aware of new evidence that was not considered at the preliminary hearing under section 832 of this title (article 32) and such evidence creates reasonable doubt with respect to the guilt of the accused. (3) (A) Except as provided in subparagraph (B), if the report of the preliminary hearing indicates that charges and specifications shall not be referred for trial by general court-martial, the convening authority shall— (i) dismiss the charges; or (ii) determine whether to dispose of the charges and specifications through a special court-martial, a summary court-martial, or through another authority or proceeding authorized under this chapter other than a general court martial. (B) In a case in which the convening authority becomes aware of new evidence that was not considered at the preliminary hearing under section 832 of this title (article 32), and such evidence indicates the guilt of the accused, the convening authority may order a new preliminary hearing to include consideration of such evidence. ; and (D) in subsection (b), as so redesignated— (i) in the subsection heading, by striking General court-martial and inserting Advice before referral without preliminary hearing ; and (ii) in paragraph (1)— (I) in the matter preceding subparagraph (A), by striking Before referral and inserting In a case in which the accused has waived a preliminary hearing under section 832(a)(1)(B) of this title (article 32(a)(1)(B)), before referral ; and (II) in subparagraph (B), by striking there is probable cause to believe and inserting it is beyond a reasonable doubt . (2) Clerical amendment The table of sections at the beginning of subchapter VI of chapter 47 of such title is amended by striking the item relating to section 834 and inserting the following new item: 834. 34. Referral for trial by convening authority. . (b) Who may convene general courts-Martial Section 822(a) of title 10, United States Code (article 22 of the Uniform Code of Military Justice), is amended by striking General courts-martial and inserting Subject to section 834 of this title (article 34), general courts-martial . 6. Prohibition on certain communications regarding courts-martial Section 837 of title 10, United States Code (article 37 of the Uniform Code of Military Justice), is amended by adding at the end the following new subsection: (e) (1) No court-martial convening authority, nor any other commanding officer, may provide a briefing concerning a pending court-martial, or allegations that may lead to a court-martial, to any subordinate who may be selected to serve as a member of such court-martial. (2) The prohibition in paragraph (1) shall not apply to a briefing provided in the course of a court-martial proceeding to a member of the armed forces who is participating in such proceeding. . 7. Adequate representation of defendants (a) Adequate representation Section 838(b) of title 10, United States Code (article 38(b) of the Uniform Code of Military Justice) is amended by adding at the end the following new paragraph: (8) Each Secretary of a military department shall ensure that— (A) an accused who is represented by military or civilian counsel has access to the investigative, expert, and other services that defense counsel determines is necessary for adequate representation under this subsection; and (B) the amount of funds and other resources provided to an accused for investigative, expert, and other services under subparagraph (A) is proportionate to the amount of funds and other resources provided to prosecutors for such services, except that the amount funds provided for such defense services may not exceed actual expenses. . (b) Equal access to services Section 846(a) of title 10, United States Code (article 46a of the Uniform Code of Military Justice), is amended by striking the period at the end and inserting and equal access to investigative, expert, and other services. . 8. Votes required for conviction, sentencing, and other matters Section 852 of title 10, United States Code (article 52 of the Uniform Code of Military Justice), is amended— (1) in subsection (a)(3), by striking by the concurrence of at least three-fourths of the members present and inserting by the unanimous concurrence of all members present ; and (2) in subsection (b)(2), by striking by the concurrence of at least three-fourths of the members present and inserting by the unanimous concurrence of all members present . 9. Electronic records of trial Section 854 of title 10, United States Code (article 54 of the Uniform Code of Military Justice), is amended— (1) by redesignating subsections (d) and (e) as subsections (e) and (f), respectively; (2) by inserting after subsection (c) the following new subsection: (c) Form of record The record shall be kept in electronic format. A hard copy of the record shall not be kept or maintained except under such circumstances as the President may prescribe by regulation. The President shall issue regulations establishing a process by which a court reporter or official described in subsection (a) may certify the electronic version of the record. ; (3) in subsection (e), as so redesignated, by striking copy and inserting electronic and hard copy ; and (4) in subsection (f), as so redesignated, by striking copy and inserting electronic and hard copy . 10. Petition for new trial Section 873 of title 10, United States Code (article 73 of the Uniform Code of Military Justice) is amended— (1) by striking At any time within three years after and inserting the following: (a) In general Except as provided in subsection (b), at any time after ; and (2) by adding at the end the following new subsection: (b) Limitation For any offense that is subject to a statute of limitations, the right of an accused to petition for a new trial under subsection (a) shall terminate three years after the date of the entry of judgment on the offense under section 860c of this title (article 60c). . 11. Defense investigators for individuals accused of offenses under the Uniform Code of Military Justice (a) In general Chapter 53 of title 10, United States Code, is amended by inserting after section 1044e the following new section: 1044f. Defense investigators for individuals accused of offenses under the Uniform Code of Military Justice (a) Designation; purposes The Secretary concerned shall establish, within the department over which the Secretary has jurisdiction, an organization (to be known as a Defense Investigator Unit ) for the purpose of providing investigative assistance to individuals who are accused of offenses under chapter 47 of this title (the Uniform Code of Military Justice). (b) Administrative independence Each Defense Investigator Unit shall be funded and maintained independently from any military criminal investigative organization in the department over which the Secretary concerned has jurisdiction. (c) Equitable support The Secretary concerned shall provide to the Defense Investigator Unit a level of support, including funding, staffing, and administrative support, that is sufficient to ensure that an accused has access to the investigative services necessary for adequate representation, as required under section 838 of this title (article 38 of the Uniform Code of Military Justice). (d) Equitable access to investigations The Secretary concerned shall issue guidance under which a member of a Defense Investigator Unit— (1) may access a crime scene in the same manner and to the same extent that a member of a military criminal investigative organization may access a crime scene; and (2) to the extent practicable, shall be present during any investigative activities conducted by a military criminal investigative organization, including the processing of crime scenes and witness interviews. . (b) Clerical amendment The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 1044e the following new item: 1044f. Defense investigators for individuals accused of offenses under the Uniform Code of Military Justice. . (c) Authorization of appropriations There are authorized to be appropriated to carry out section 1044f of title 10, United States Code, as added by subsection (a), such sums as may be necessary for each fiscal year. 12. Prohibition on involuntary separation as nonjudicial punishment for a charge brought under the Uniform Code of Military Justice (a) In general Chapter 59 of title 10, United States Code, is amended by inserting after section 1167 the following new section: 1167a. Prohibition on involuntary separation as nonjudicial punishment for a charge brought under the Uniform Code of Military Justice (a) In general Except as provided in section 1167, a member charged with an offense under chapter 47 of this title (the Uniform Code of Military Justice) may not be involuntarily separated from the armed forces solely on the basis of such charge unless— (1) the member is convicted of the offense by a court-martial; and (2) separation of the member from the armed forces is prescribed as a sentence by the court martial. (b) Rule of construction Nothing in this section shall be construed to prohibit the involuntary separation of a member from the armed forces for misconduct that is not subject to a charge brought under chapter 47 of this title (the Uniform Code of Military Justice). . (b) Clerical amendment The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 1067 the following new item: 1067a. Prohibition on involuntary separation as nonjudicial punishment for a charge brought under the Uniform Code of Military Justice. . 13. Certiorari to the United States Court of Appeals for the Armed Forces (a) Court of Appeals for the Armed Forces; certiorari (1) In general Section 1259 of title 28, United States Code, is amended— (A) in paragraph (3), by inserting or denied after granted ; and (B) in paragraph (4), by inserting or denied after granted . (2) Technical and conforming amendments (A) Title 10 Section 867a(a) of title 10, United States Code (article 67a of the Uniform Code of Military Justice), is amended by striking The Supreme Court may not review by a writ of certiorari under this section any action of the United States Court of Appeals for the Armed Forces in refusing to grant a petition for review. . (B) Time for application for writ of certiorari Section 2101(g) of title 28, United States Code, is amended to read as follows: (g) The time for application for a writ of certiorari to review a decision of the United States Court of Appeals for the Armed Forces, or the decision of a Court of Criminal Appeals that the United States Court of Appeals for the Armed Forces refuses to grant a petition to review, shall be as prescribed by rules of the Supreme Court. . (b) Effective date (1) In general Subject to paragraph (2), the amendments made by this section shall take effect upon the expiration of the 180-day period beginning on the date of the enactment of this Act and shall apply to any petition granted or denied by the United States Court of Appeals for the Armed Forces on or after that effective date. (2) Authority to prescribe rules The authority of the Supreme Court to prescribe rules to carry out section 2101(g) of title 28, United States Code, as amended by subsection (a)(2)(B) of this Act, shall take effect on the date of the enactment of this Act. 14. Treatment of certain records of criminal investigations (a) Guidance required The Secretary of Defense, in consultation with the Secretaries of the military departments, shall develop and implement uniform guidance to modify the systems used by Defense criminal investigative organizations to document records of criminal investigations (commonly known as title systems ) to ensure that a record identifying a member of the Armed Forces as the subject of a criminal investigation is removed from such system if that member is cleared of wrongdoing as described in subsection (d). (b) Documentation by judge advocate As soon as practicable after a member of the Armed forces is cleared of wrongdoing as described in subsection (d), a judge advocate in the chain of command of the member shall submit to the Defense criminal investigative organization concerned a written notice verifying that the member has been cleared of wrongdoing. (c) Deadline for removal A record described in subsection (a) shall be removed from the title system of a Defense criminal investigative organization not later than 30 days after the date on which the organization receives the notice described in subsection (b). (d) Disposition of investigations A member of the Armed Forces who is the subject of a criminal investigation shall be considered to have been cleared of wrongdoing for purposes of subsection (a) if— (1) the member is found not guilty, not responsible, or it is found that the reasons specified for the proceeding are unsupported by the evidence of the offense for which the member was under investigation— (A) through a court-martial or other proceeding brought under the chapter 47 of title 10, United States Code (the Uniform Code of Military Justice); (B) through an administrative proceeding within the Department of Defense or the Armed Force concerned; or (C) by a civilian court; or (2) the Government makes a final determination not to prosecute the member for the criminal offense for which the member was under investigation. (e) Defense criminal investigative organization defined In this section, the term Defense criminal investigative organization means any organization or element of the Department of Defense or an Armed Force that is responsible for conducting criminal investigations, including— (1) the Army Criminal Investigation Command; (2) the Naval Criminal Investigative Service; (3) the Air Force Office of Special Investigations; (4) the Coast Guard Investigative Service; and (5) the Defense Criminal Investigative Service.