Justice for Warriors Act

I 117TH CONGRESS 1ST SESSION H. R. 3647 To improve the military justice system, and for other purposes. 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 deter- mined 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Justice for Warriors Act’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 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. VerDate Sep 11 2014 20:50 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\H3647.IH H3647 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 3647 IH 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. SEC. 2. PRETRIAL CONFINEMENT. 1 (a) STANDARD FOR PRETRIAL CONFINEMENT.—Sec- 2 tion 809(d) of title 10, United States Code (article 9(d) 3 of the Uniform Code of Military Justice), is amended to 4 read as follows: 5 ‘‘(d)(1) No person may be ordered into arrest except 6 for probable cause. 7 ‘‘(2)(A) Except as provided in subparagraph (B), no 8 person may be ordered into confinement for more than 9 seven days unless it is beyond a reasonable doubt that the 10 person committed the offense for which confinement is or- 11 dered. 12 ‘‘(B) In the event that a determination with respect 13 to reasonable doubt has not been made by the expiration 14 of the seven day period described in the subparagraph (A), 15 a person may be placed under in-home confinement pend- 16 ing such determination.’’. 17 (b) STANDARD OF PROOF FOR REVIEWS OF PRE- 18 TRIAL CONFINEMENT.—Not later than 180 days after the 19 date of the enactment of this Act, the President shall issue 20 VerDate Sep 11 2014 20:50 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3647.IH H3647 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 3647 IH regulations revising subsection (i)(2)(A)(iii) of Rule For 1 Courts-Martial 305 (as set forth in the Manual for Courts- 2 Martial, 2019 edition, or any successor to such rule) to 3 provide that the requirements for confinement under sub- 4 section (h)(2)(B) of such rule must be proved beyond a 5 reasonable doubt. 6 (c) SENTENCING CREDIT FOR PRETRIAL CONFINE- 7 MENT.—Not later than 180 days after the date of the en- 8 actment of this Act, the President shall issue regulations 9 revising subsection (k) of Rule for Courts-Martial 305 (as 10 set forth in the Manual for Courts-Martial, 2019 edition, 11 or any successor to such rule) to provide that— 12 (1) the remedy for noncompliance with sub- 13 section (f), (h), (i), or (j) of such rule shall be an 14 administrative credit against the sentence adjudged 15 for any confinement served as the result of such 16 noncompliance; and 17 (2) such credit shall be computed at the rate of 18 20 days credit for each day of confinement served as 19 a result of such noncompliance. 20 SEC. 3. QUALIFICATIONS AND SELECTION OF MEMBERS 21 FOR COURTS-MARTIAL. 22 (a) MEMBER QUALIFICATIONS.—Section 825 of title 23 10, United States Code (article 25 of the Uniform Code 24 VerDate Sep 11 2014 20:50 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3647.IH H3647 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 3647 IH of Military Justice), is amended by striking ‘‘on active 1 duty’’ each place it appears. 2 (b) SELECTION PROCESS.—Section 825(e) of title 10, 3 United States Code (article 25 of the Uniform Code of 4 Military Justice), is amended— 5 (1) by amending paragraph (2) to read as fol- 6 lows: 7 ‘‘(2)(A) When convening a court-martial, the 8 convening authority shall notify the Judge Advocate 9 General of the armed force of which the convening 10 authority is a member who shall select the members 11 of the court-martial in accordance with subpara- 12 graph (B). 13 ‘‘(B)(i) After receiving a notification under sub- 14 paragraph (A), the Judge Advocate General shall de- 15 tail members of the armed forces at random to serve 16 as members of the court-martial. The selection of 17 members shall be made from a randomized list of 18 potential members generated using a computer data- 19 base that includes all members of the armed forces 20 (including members serving on active duty and mem- 21 bers of the reserve components) who are eligible to 22 serve as members of the court martial. 23 ‘‘(ii) The Judge Advocate General shall detail 24 not less than the number of members necessary to 25 VerDate Sep 11 2014 20:50 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3647.IH H3647 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 3647 IH impanel the court-martial under section 829 of this 1 title (article 29). 2 ‘‘(iii) When convening a court-martial in which 3 the accused is a member of the reserve components, 4 the Judge Advocate General shall ensure that not 5 less than half of the panel members selected to serve 6 on the court-martial are members of the reserve 7 components. 8 ‘‘(C) No member of an armed force is eligible 9 to serve as a member of a general or special court- 10 martial in a case in which that member— 11 ‘‘(i) is the accuser or a witness for the 12 prosecution; 13 ‘‘(ii) has acted as preliminary hearing offi- 14 cer or as counsel in the same case; or 15 ‘‘(iii) is assigned to the same unit as the 16 accused.’’; and 17 (2) by striking paragraph (3). 18 SEC. 4. PRELIMINARY HEARINGS AND INVESTIGATIONS. 19 (a) PRELIMINARY HEARING AND INVESTIGATION.— 20 (1) IN GENERAL.—Section 832 of title 10, 21 United States Code (article 32 of the Uniform Code 22 of Military Justice) is amended— 23 VerDate Sep 11 2014 20:50 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3647.IH H3647 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 3647 IH (A) in the section heading by inserting 1 ‘‘and investigation’’ after ‘‘Preliminary 2 hearing’’; 3 (B) in subsection (a)— 4 (i) in paragraph (1)(B)— 5 (I) by striking ‘‘Under regula- 6 tions’’ and inserting ‘‘(i) Under regu- 7 lations’’; and 8 (II) by adding at the end the fol- 9 lowing: 10 ‘‘(ii) In a case in which an a preliminary 11 hearing is waived under clause (i), the con- 12 vening authority shall make a determination as 13 to the disposition which shall be made of the 14 case in the interest of justice and discipline, in- 15 cluding whether the case should be referred for 16 trial by general court-martial in accordance 17 with section 834(b) of this title (article 18 34(B)).’’. 19 (ii) by striking paragraph (2) and in- 20 serting the following new paragraphs: 21 ‘‘(2) A preliminary hearing shall include— 22 ‘‘(A) a thorough and impartial investiga- 23 tion of all the matters set forth in the charges 24 and specifications, including inquiry as to the 25 VerDate Sep 11 2014 20:50 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3647.IH H3647 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 3647 IH truth of the matter set forth in the charges and 1 specifications; 2 ‘‘(B) a determination, which shall be bind- 3 ing on the convening authority as described in 4 section 834 of this title (article 34), as to— 5 ‘‘(i) whether or not the specification 6 alleges an offense under this chapter; 7 ‘‘(ii) whether or not it is beyond a 8 reasonable doubt that the accused com- 9 mitted the offense charged; 10 ‘‘(iii) whether or not the convening 11 authority has court-martial jurisdiction 12 over the accused and over the offense; and 13 ‘‘(iv) whether or not the case shall be 14 referred for trial by general court-martial; 15 and 16 ‘‘(C) if the case shall not be referred for 17 trial by general court-martial, a recommenda- 18 tion as to the disposition which shall be made 19 of the case in the interest of justice and dis- 20 cipline. 21 ‘‘(3) The standards for the admissibility of evi- 22 dence in a preliminary hearing shall be the same as 23 the standards for the admissibility of evidence in a 24 court-martial.’’; 25 VerDate Sep 11 2014 20:50 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3647.IH H3647 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 3647 IH (C) in subsection (b), by striking ‘‘con- 1 ducted by’’ and inserting ‘‘presided over by’’; 2 (D) by redesignating subsections (c) 3 through (h) as subsections (d) through (i), re- 4 spectively; 5 (E) by inserting after subsection (b) the 6 following new subsection: 7 ‘‘(c) PANEL.— 8 ‘‘(1) IN GENERAL.—The determinations under 9 subsection (a)(2)(B) shall be made by an impartial 10 panel composed of three members of the armed 11 forces who— 12 ‘‘(A) are eligible to serve on a court-mar- 13 tial under section 825 of this title (article 25); 14 and 15 ‘‘(B) may not be in a rank that is— 16 ‘‘(i) more than three ranks higher 17 than the accused; or 18 ‘‘(ii) more than two ranks lower than 19 the accused. 20 ‘‘(2) DETAIL OF PANEL MEMBERS.— 21 ‘‘(A) The preliminary hearing officer shall 22 detail members to serve on the panel. 23 ‘‘(B) In addition to the members detailed 24 under subparagraph (A), the preliminary hear- 25 VerDate Sep 11 2014 20:50 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3647.IH H3647 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 3647 IH ing officer shall detail alternate members who 1 may serve on the panel in the event that a 2 panel member cannot fulfill the member’s du- 3 ties. 4 ‘‘(3) LEVEL OF CONCURRENCE REQUIRED.—All 5 matters to be decided by the preliminary hearing 6 panel shall be determined by the unanimous concur- 7 rence of all members present.’’; and 8 (F) in subsection (d), as so redesignated— 9 (i) in paragraph (1), by striking ‘‘rea- 10 soning and conclusions of the hearing offi- 11 cer with respect to the determinations 12 under subsection (a)(2)’’ and inserting 13 ‘‘reasoning and conclusions of the prelimi- 14 nary hearing panel with respect to deter- 15 minations under subsection (a)(2)’’; and 16 (ii) in paragraph (2), by striking 17 ‘‘Recommendations for’’ and inserting ‘‘A 18 determination with respect to’’. 19 (2) CLERICAL AMENDMENT.—The table of sec- 20 tions at the beginning of subchapter VI of chapter 21 47 of title 10, United States Code (the Uniform 22 Code of Military Justice), is amended by striking the 23 item relating to section 832 (article 32) and insert- 24 ing the following new item: 25 VerDate Sep 11 2014 20:50 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3647.IH H3647 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 3647 IH ‘‘832. 32. Preliminary hearing and investigation required before referral to gen- eral court-martial.’’. (b) INVESTIGATIVE SUBPOENA.—Section 846(d) of 1 title 10, United States Code (article 46 of the Uniform 2 Code of Military Justice) is amended— 3 (1) in paragraph (1)(C), by striking the semi- 4 colon and inserting ‘‘, including an investigation con- 5 ducted as part of a preliminary hearing under sec- 6 tion 832 of this title (article 32);’’; and 7 (2) by amending paragraph (2) to read as fol- 8 lows: 9 ‘‘(2) INVESTIGATIVE SUBPOENA.—An investiga- 10 tive subpoena under paragraph (1)(C) may be issued 11 before referral of charges to a court-martial only 12 if— 13 ‘‘(A) a general court-martial convening au- 14 thority has authorized counsel for the Govern- 15 ment to issue such a subpoena; 16 ‘‘(B) a military judge issues such a sub- 17 poena pursuant to section 830a of this title (ar- 18 ticle 30a); or 19 ‘‘(C) an officer presiding over a prelimi- 20 nary hearing under section 832 of this title (ar- 21 ticle 32) issues such a subpoena.’’. 22 VerDate Sep 11 2014 20:50 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3647.IH H3647 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 3647 IH SEC. 5. ROLE OF CONVENING AUTHORITY. 1 (a) REFERRAL FOR TRIAL BY CONVENING AUTHOR- 2 ITY.— 3 (1) IN GENERAL.—Section 834 of title 10, 4 United States Code (article 33 of the Uniform Code 5 of Military Justice) is amended— 6 (A) in the section heading by striking 7 ‘‘Advice to convening authority be- 8 fore referral for trial’’ and inserting ‘‘Re- 9 ferral for trial by convening author- 10 ity’’; 11 (B) by redesignating subsections (a) 12 through (d) as subsections (b) through (e), re- 13 spectively; 14 (C) by inserting before subsection (b) the 15 following new subsection: 16 ‘‘(a) REFERRAL TO GENERAL COURT-MARTIAL.— 17 ‘‘(1) The convening authority may not refer a 18 specification under a charge to a general court-mar- 19 tial unless— 20 ‘‘(A) the report of the preliminary hearing 21 under section 832(d) of this title (article 32(d)) 22 concludes that— 23 ‘‘(i) the specification alleges an of- 24 fense under this chapter; 25 VerDate Sep 11 2014 20:50 Jul 09, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3647.IH H3647 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 3647 IH ‘‘(ii) it is beyond a reasonable doubt 1 that the accused committed the offense 2 charged; 3 ‘‘(iii) a court-martial would have juris- 4 diction over the accused and the offense; 5 and 6 ‘‘(iv) the specification shall be referred 7 to a general court-martial; or 8 ‘‘(B) the accused has waived a preliminary 9 hearing under section 832(a)(B) of this title 10 (article 32) and the convening authority deter- 11 mines, in accordance with subsection (b) of this 12 section (article), that referral of the specifica- 13 tion to a general court-martial is appropriate. 14 ‘‘(2)(A) Except as provided in subparagraph 15 (B), if the report of the preliminary hearing indi- 16 cates that charges and specifications shall be re- 17 ferred for trial by general court-martial, the con- [Text truncated for display. 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