Military Justice Improvement and Increasing Prevention Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1520 To reform the disposition of charges and convening of courts-martial for certain offenses under the Uniform Code of Military Justice and increase the prevention of sexual assaults and other crimes in the military. IN THE SENATE OF THE UNITED STATES APRIL 29, 2021 Mrs. GILLIBRAND (for herself, Mr. GRASSLEY, Ms. ERNST, Mr. BLUMENTHAL, Mr. CRUZ, Mrs. SHAHEEN, Ms. BALDWIN, Mr. VAN HOL- LEN, Mr. KING, Mr. BRAUN, Mr. DURBIN, Ms. DUCKWORTH, Mr. BEN- NET, Mr. PAUL, Mr. COONS, Mr. KELLY, Mrs. FEINSTEIN, Ms. HIRONO, Ms. KLOBUCHAR, Mr. LEAHY, Ms. WARREN, Mr. WYDEN, Mr. PADILLA, Mr. MENENDEZ, Ms. HASSAN, Ms. LUMMIS, Mr. PETERS, Mr. CASEY, Mrs. CAPITO, Mr. WARNOCK, Mr. KAINE, Mr. TUBERVILLE, Ms. SMITH, Mr. HEINRICH, Ms. CORTEZ MASTO, Mr. BROWN, Mr. HICKENLOOPER, Mr. WARNER, Ms. COLLINS, Mr. BOOKER, Mr. TESTER, Mr. MERKLEY, and Mr. OSSOFF) introduced the following bill; which was read twice and referred to the Committee on Armed Services A BILL To reform the disposition of charges and convening of courts- martial for certain offenses under the Uniform Code of Military Justice and increase the prevention of sexual assaults and other crimes in the military. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 01:40 May 25, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1520.IS S1520 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1520 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Military Justice Im- 2 provement and Increasing Prevention Act of 2021’’. 3 SEC. 2. IMPROVEMENT OF DETERMINATIONS ON DISPOSI- 4 TION OF CHARGES FOR CERTAIN OFFENSES 5 UNDER UCMJ WITH AUTHORIZED MAXIMUM 6 SENTENCE OF CONFINEMENT OF MORE THAN 7 ONE YEAR. 8 (a) IMPROVEMENT OF DETERMINATIONS.— 9 (1) MILITARY DEPARTMENTS.—With respect to 10 charges under chapter 47 of title 10, United States 11 Code (the Uniform Code of Military Justice), that 12 allege an offense specified in subsection (b) and not 13 excluded under subsection (c), the Secretary of De- 14 fense shall require the Secretaries of the military de- 15 partments to provide as described in subsection (d) 16 for the determinations as follows: 17 (A) Determinations under section 830 of 18 such chapter (article 30 of the Uniform Code of 19 Military Justice) on the preferral of charges. 20 (B) Determinations under section 830 of 21 such chapter (article 30 of the Uniform Code of 22 Military Justice) on the disposition of charges. 23 (C) Determinations under section 834 of 24 such chapter (article 34 of the Uniform Code of 25 Military Justice) on the referral of charges. 26 VerDate Sep 11 2014 01:40 May 25, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1520.IS S1520 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1520 IS (2) HOMELAND SECURITY.—With respect to 1 charges under chapter 47 of title 10, United States 2 Code (the Uniform Code of Military Justice), that 3 allege an offense specified in subsection (b) and not 4 excluded under subsection (c) against a member of 5 the Coast Guard (when it is not operating as a serv- 6 ice in the Navy), the Secretary of Homeland Secu- 7 rity shall provide as described in subsection (d) for 8 the determinations as follows: 9 (A) Determinations under section 830 of 10 such chapter (article 30 of the Uniform Code of 11 Military Justice) on the preferral of charges. 12 (B) Determinations under section 830 of 13 such chapter (article 30 of the Uniform Code of 14 Military Justice) on the disposition of charges. 15 (C) Determinations under section 834 of 16 such chapter (article 34 of the Uniform Code of 17 Military Justice) on the referral of charges. 18 (3) RULE OF CONSTRUCTION.—This section 19 shall not be construed to terminate or otherwise 20 alter the authorities enumerated in any articles of 21 the Uniform Code of Military Justice other than ar- 22 ticles 30 and 34 (10 U.S.C. 830, 834). 23 (b) COVERED OFFENSES.—An offense specified in 24 this subsection is an offense as follows: 25 VerDate Sep 11 2014 01:40 May 25, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1520.IS S1520 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1520 IS (1)(A) Offenses under the following sections of 1 chapter 47 of title 10, United States Code (the Uni- 2 form Code of Military Justice), for which the max- 3 imum punishment authorized under that chapter in- 4 cludes confinement for more than one year: sections 5 893a, 917a, 918, 919, 919a, 919b, 920, 920a, 920b, 6 920c, 921, 921a, 921b, 922, 924, 924a, 924b, 925, 7 926, 927, 928(b) and (c), 928a, 928b, 930, 931, 8 931a, 931b, 931c, 931d, 931e, 931f, 931g, and 932 9 (articles 93a, 117a, 118, 119, 119a, 119b, 120, 10 120a, 120b, 120c, 121, 121a, 121b, 122, 124, 124a, 11 124b, 125, 126, 127, 128(b) and (c), 128a, 128b, 12 1230, 131, 131a, 131b, 131c, 131d, 131e, 131f, 13 131g, and 132, respectively, of the Uniform Code of 14 Military Justice). 15 (B) The offenses of child pornography, neg- 16 ligent homicide, indecent conduct, indecent language 17 communicated to any child under the age of 16 18 years, and pandering and prostitution, as punishable 19 under the general punitive article in 934 of such 20 title (article 134 of the Uniform Code of Military 21 Justice). 22 (2) A conspiracy to commit an offense specified 23 in paragraph (1) as punishable under section 881 of 24 VerDate Sep 11 2014 01:40 May 25, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1520.IS S1520 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1520 IS title 10, United States Code (article 81 of the Uni- 1 form Code of Military Justice). 2 (3) A solicitation to commit an offense specified 3 in paragraph (1) as punishable under section 882 of 4 title 10, United States Code (article 82 of the Uni- 5 form Code of Military Justice). 6 (4) An attempt to commit an offense specified 7 in paragraph (1) as punishable under section 880 of 8 title 10, United States Code (article 80 of the Uni- 9 form Code of Military Justice). 10 (c) EXCLUDED OFFENSES.—Subsection (a) does not 11 apply to an offense as follows: 12 (1) An offense under sections 883 through 917 13 of title 10, United States Code (articles 83 through 14 117 of the Uniform Code of Military Justice), but 15 not an offense under section 893a of such title (arti- 16 cle 93a of the Uniform Code of Military Justice). 17 (2) An offense under section 922a, 923, 923a, 18 or 928(a) of title 10, United States Code (articles 19 122a, 123, 123a, and 128(a) of the Uniform Code 20 of Military Justice). 21 (3) An offense under section 933 or 934 of title 22 10, United States Code (articles 133 and 134 of the 23 Uniform Code of Military Justice), but not the of- 24 fense of child pornography, negligent homicide, inde- 25 VerDate Sep 11 2014 01:40 May 25, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1520.IS S1520 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1520 IS cent conduct, indecent language communicated to 1 any child under the age of 16 years, or pandering 2 and prostitution as punishable under the general pu- 3 nitive article in section 934 of such title (article 134 4 of the Uniform Code of Military Justice). 5 (4) A conspiracy to commit an offense specified 6 in paragraphs (1) through (3) as punishable under 7 section 881 of title 10, United States Code (article 8 81 of the Uniform Code of Military Justice). 9 (5) A solicitation to commit an offense specified 10 in paragraphs (1) through (3) as punishable under 11 section 882 of title 10, United States Code (article 12 82 of the Uniform Code of Military Justice). 13 (6) An attempt to commit an offense specified 14 in paragraphs (1) through (3) as punishable under 15 section 880 of title 10, United States Code (article 16 80 of the Uniform Code of Military Justice). 17 (d) REQUIREMENTS AND LIMITATIONS.—The dis- 18 position of charges covered by subsection (a) shall be sub- 19 ject to the following: 20 (1) The determination whether to cause charges 21 to be preferred or refer such charges to a court-mar- 22 tial for trial, as applicable, shall be made by a com- 23 missioned officer of the Armed Forces designated as 24 a court-martial convening authority in accordance 25 VerDate Sep 11 2014 01:40 May 25, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1520.IS S1520 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1520 IS with regulations prescribed for purposes of this sub- 1 section from among commissioned officers of the 2 Armed Forces in grade O–6 or higher who— 3 (A) are available for detail as trial counsel 4 under section 827 of title 10, United States 5 Code (article 27 of the Uniform Code of Mili- 6 tary Justice); 7 (B) have significant experience in trials by 8 general or special court-martial; and 9 (C) are outside the chain of command of 10 the member subject to such charges. 11 (2) Upon a determination under paragraph (1) 12 to refer charges to a court-martial for trial, the offi- 13 cer making that determination shall determine 14 whether to refer such charges for trial by a general 15 court-martial convened under section 822 of title 10, 16 United States Code (article 22 of the Uniform Code 17 of Military Justice), or a special court-martial con- 18 vened under section 823 of title 10, United States 19 Code (article 23 of the Uniform Code of Military 20 Justice). 21 (3) A determination under paragraph (1) to 22 cause charges to be preferred or refer charges to a 23 court-martial for trial, as applicable, shall cover all 24 known offenses, including lesser included offenses. 25 VerDate Sep 11 2014 01:40 May 25, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1520.IS S1520 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1520 IS (4) The determination to cause charges to be 1 preferred or refer charges to a court-martial for 2 trial, as applicable, under paragraph (1), and the 3 type of court-martial to which to refer under para- 4 graph (2), shall be binding on any applicable con- 5 vening authority for the referral of such charges. 6 (5) The actions of an officer described in para- 7 graph (1) in determining under that paragraph 8 whether or not to cause charges to be preferred or 9 refer charges to a court-martial for trial, as applica- 10 ble, shall be free of unlawful or unauthorized influ- 11 ence or coercion. 12 (6) The determination under paragraph (1) not 13 to refer charges to a general or special court-martial 14 for trial shall not operate to terminate or otherwise 15 alter the authority of commanding officers to refer 16 charges for trial by special court-martial under sec- 17 tion 823 of title 10, United States Code (article 23 18 of the Uniform Code of Military Justice) or sum- 19 mary court-martial convened under section 824 of 20 title 10, United States Code (article 24 of the Uni- 21 form Code of Military Justice), or to impose non-ju- 22 dicial punishment in connection with the conduct 23 covered by such charges as authorized by section 24 VerDate Sep 11 2014 01:40 May 25, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1520.IS S1520 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1520 IS 815 of title 10, United States Code (article 15 of the 1 Uniform Code of Military Justice). 2 (7) The determination under paragraph (1) to 3 refer charges to a general or special court-martial 4 shall not be subject to section 834 of title 10, United 5 States Code (article 34 of the Uniform Code of Mili- 6 tary Justice), provided that the officer making the 7 determination determines that— 8 (A) the specification alleges an offense 9 under the Uniform Code of Military Justice; 10 (B) there is probable cause to believe that 11 the accused committed the offense charged; and 12 (C) a court-martial would have jurisdiction 13 over the accused and the offense. 14 (e) CONSTRUCTION WITH CHARGES ON OTHER OF- 15 FENSES.—Nothing in this section shall be construed to 16 alter or affect the preferral, disposition, or referral author- 17 ity of charges under chapter 47 of title 10, United States 18 Code (the Uniform Code of Military Justice), that allege 19 an offense for which the maximum punishment authorized 20 under that chapter includes confinement for one year or 21 less, except for the offenses of child pornography, neg- 22 ligent homicide, indecent conduct, indecent language com- 23 municated to any child under the age of 16 years, and 24 pandering and prostitution as punishable under the gen- 25 VerDate Sep 11 2014 01:40 May 25, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1520.IS S1520 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1520 IS eral punitive article in section 934 of such title (article 1 134 of the Uniform Code of Military Justice). 2 (f) POLICIES AND PROCEDURES.— 3 (1) IN GENERAL.—The Secretaries of the mili- 4 tary departments and the Secretary of Homeland 5 Security (with respect to the Coast Guard when it 6 is not operating as a service in the Navy) shall re- 7 vise policies and procedures as necessary to comply 8 with this section. 9 (2) UNIFORMITY.—The General Counsel of the 10 Department of Defense and the General Counsel of 11 the Department of Homeland Security shall jointly 12 review the policies and procedures revised under this 13 subsection in order to ensure that any lack of uni- 14 formity in policies and procedures, as so revised, 15 among the military departments and the Depart- 16 ment of Homeland Security does not render uncon- 17 stitutional any policy or procedure, as so revised. 18 (g) MANUAL FOR COURTS-MARTIAL.—The Secretary 19 of Defense shall recommend such changes to the Manual 20 for Courts-Martial as are necessary to ensure compliance 21 with this section. 22 (h) IMPROVED SPECIALIZATION OF CRIMINAL INVES- 23 TIGATORS.—The Secretary of Defense shall revise policies 24 and procedures as necessary to improve specialization of 25 VerDate Sep 11 2014 01:40 May 25, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1520.IS S1520 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1520 IS criminal investigators to help increase the efficiency and 1 effectiveness of sexual assault and domestic violence inves- 2 tigations. 3 SEC. 3. MODIFICATION OF OFFICERS AUTHORIZED TO CON- 4 VENE GENERAL AND SPECIAL COURTS-MAR- 5 TIAL FOR CERTAIN OFFENSES UNDER UCMJ 6 WITH AUTHORIZED MAXIMUM SENTENCE OF 7 CONFINEMENT OF MORE THAN ONE YEAR. 8 (a) IN GENERAL.—Subsection (a) of section 822 of 9 title 10, United States Code (article 22 of the Uniform 10 Code of Military Justice), is amended— 11 (1) by redesignating paragraphs (8) and (9) as 12 paragraphs (9) and (10), respectively; and 13 (2) by inserting after paragraph (7) the fol- 14 lowing new paragraph (8): 15 ‘‘(8) [Text truncated for display. Full text available on Congress.gov.]