On December 20, 2024, President Biden issued Executive Order 14130. This Order amended and added to the Manual for Courts-Martial. The majority of the changes became effective on the date the Order was issued, with the remainder going into effect on December 22 and December 23, 2024.
The changes cover several areas of military justice practice. Several of the amendments are intended to eliminate redundancies or clarify language.
The Order does create substantive changes to the preliminary hearing procedures in Rule for Courts-Martial 405. These amendments and additions operate to make the preliminary hearing a more formal and judicial proceeding than it has previously been. The changes include: 1) The preliminary hearing officer must be certified by their Judge Advocate General as having the requisite training and experience to serve in that role. 2) The burden of proof the defense must meet to establish the necessity of requested witnesses is now laid out in the rule. 3) Determinations that military witnesses or evidence are unavailable must be accompanied by written explanations that are to be included in the preliminary hearing officer’s report. 4) The portion of the rule covering the report establishes a requirement for the preliminary hearing officer to provide not only a recommendation as to the disposition of the charges and specifications, but also analysis to support the recommendation.
The Executive Order also amends the process by which a convening authority provides members for a court-martial panel. The new Rule for Court-Martial 503 requires the convening authority to provide at least 24 members for a capital general court-martial, at least 16 members for a non-capital general court-martial, and at least 8 members for a special court-martial. In cases where a convening authority cannot provide the required number of members, the circumstances must be documented.
Rule for Courts-Martial 703, governing the production of witnesses and evidence is also amended through the Order. When the Government denies a defense witness, the defense may, for good cause shown, make an ex parte motion to the military judge to have the witness granted. The rule also expands the protection from subpoenas for personal or confidential information to all victims, not just those named in the specifications.
The Order amends both Rule for Courts-Martial 906 and 1002 on sentencing. Rule 906 now directs military judges who find two offenses to be an unreasonable multiplication of charges for sentencing to order the sentences for the two offenses to run concurrently. Rule 1002 provides guidance for military judges on determining whether segmented sentences for multiple guilty findings should run concurrently or consecutively.
The President’s directed changes also include changes to summary courts-martial. The accused now has a right to be represented by military defense counsel.
The Executive Order also made a few changes to the Uniform Code of Military Justice articles. Both Article 128b, Domestic Violence, and Article 130, Stalking, have been expanded to include “dating partners.” This term encompasses a person who is or has been in a social relationship of a romantic or intimate nature with the accused. The language for the child pornography offenses under Article 134 have been amended to clarify that the minors depicted do not have to be actual identified children.
The law governing military justice is constantly changing. If you or your loved one want to appeal a court-martial, you need someone with experience who stays current with the changes to the UCMJ, knows what arguments to make on your behalf, and when to make them. I have argued numerous issues in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.