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FY22 NDAA Removes Commanders From Sexual Assault Prosecutorial Decisions

Members of Congress have long been focused on the issue of sexual assault in the military and the steps taken by military commanders to combat the problem and impartially try those accused. After years of revisions to the UCMJ articles related to sexual assault and the procedures by which prosecutorial decisions are made, Congress has now removed commanders from the prosecutorial process for sexual assault and other major offenses altogether.

In the National Defense Authorization Act for Fiscal Year 2022, passed by the House and the Senate this month, Congress creates an Office of the Special Trial Counsel in each Service, except the Coast Guard. This office reports directly to the Service Secretaries and not to any uniformed member of the Service. The Lead Special Trial Counsel for each Service will be a Judge Advocate from that Service and will fill an O-7 billet.

The Office of the Special Trial Counsel will handle more than just the disposition of sexual assault offenses. The Lead Special Trial Counsel will have the exclusive authority to refer “covered offenses” to special or general courts-martial, to withdraw or dismiss charges of a “covered offense,” and to enter into pretrial agreements with an accused. The Act defines “covered offenses” to include murder, manslaughter, kidnapping, domestic violence, stalking, child pornography offenses, and most sexual assault and sexual misconduct offenses. The Special Trial Counsel will exercise the same authority over any related offenses or other offenses alleged to have been committed by the accused. So, once the office determines that a “covered offense” is involved, the Special Trial Counsel will take over the prosecution of any offenses the accused might be charged with whether they are related to the “covered offense” or not.

The NDAA also changes sentencing procedures in cases no matter the offense charged. Military judges will now determine the sentence in all courts-martial, even when an accused elects to be tried by a members panel on the merits. The only exception to this rule is in death penalty cases, which will still require a sentencing proceeding before a members panel. The military judge will determine the appropriate sentence based upon new sentencing criteria and sentencing parameters. These parameters are intended to mirror federal sentencing guidelines and will be determined by the President based upon a newly created “Military Sentencing Parameters and Review Board” that will report to the Secretary of Defense. Military judges will be permitted to depart from these parameters if they provide the factual basis and reasoning for the departure in writing.

These changes will take effect two years from when the law is enacted. It has passed both houses of Congress and awaits signature by the President. It will then take effect two years after his signature. During those two years, the President must create regulations governing the newly created Office of the Special Trial Counsel as well as the new sentencing parameters.

Military law is constantly changing. If you or your loved one is facing a court-martial or wants to appeal a court-martial conviction, you need someone with experience who understands the changes and knows the law. I have the experience you need. Please call Bill Cassara at (706) 445-2943 for a free consultation.

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