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Congressional changes to UCMJ to come

7 Feb 2014 | Cpl. Ali Azimi Marine Corps Air Ground Combat Center Twentynine Palms

Congress made the biggest changes to the Uniform Code of Military Justice in the past decade, Dec. 26, 2013, under the National Defense Authorization Act. These changes are scheduled to be implemented in throughout 2014 and the Marine Corps will begin to see some of the major changes that were made to Articles 32, 60, 120 and 125 in the coming months.

The Marine Corps is governed by the UCMJ, which is reviewed and modified by Congress every year under the NDAA. While some of the changes made to the UCMJ in December came into effect immediately. Others, such as the listed articles, are set to take effect 120 to 180 days after the date it was approved by President Barack Obama.

Upon implementation of these modifications, questions may arise. What are these changes and how will they affect the average Marine in a court case?

To find that out, it is best to talk to someone with proper education and experience in military law.

Marine Corps judge advocates undergo additional schooling at the Naval Justice School after passing their bar exams to adjust themselves to serve as lawyers in the Marine Corps. They understand both civil and military law, making them the best qualified representation in a military court case.

The changes being made to the articles largely influence cases of sexual assault, according to Maj. Nathan Bastar, deputy Staff Judge Advocate, office of the Staff Judge Advocate, Combat Center.

“Procedural wise, this is the most they’ve changed it in a while,” Bastar said.

The changes affect the rights of victims of sexual assault in court, the rights of convening authorities, sentencing and the investigations leading to trial.

Article 32 relates to a preliminary investigation to determine reasonable grounds to go forward in a General Court-Martial. Rules of evidence do not apply and in some cases this is the first time that the victim would testify in court.

It is the constitutional right of the accused to face the witnesses against them and this is where the first change to the article comes into play.

“At the hearing, the accused had the right to have the victim who was accusing him of the sexual assault present and to be cross-examined by his defense attorney,” Bastar said. “Now they have taken that away. They have granted the victim the right to refuse to testify at an Article 32 hearing.”

This does not violate the alleged assailant’s constitutional rights because an Article 32 is a preliminary hearing and not officially a trial determining guilt, only evidence to move forward. This change significantly reduces the defense’s ability to cross-examine witnesses during an investigation and prepare for a possible trial. If the investigation moves on to a court-martial, the victim can then be called for cross-examination.

These hearings, prior to the court-martial, are investigated by a commissioned officer. Before the changes made to Article 32, it was not a requirement for these officers to have any legal training. Any officer, such as a commanding officer or battalion executive officer, could have served as an investigator. The new changes now require the investigating officer to be judge advocates.

The Combat Center has more than 20 judge advocates, approximately half of which are eligible to serve in an Article 32 under its new terms.

“There are other qualifications to be an Article 32 [investigating officer] that are Marine Corps-specific,” Bastar said. “In the Marine Corps, you must be a JA, O-4 or above, or had to have tried a sexual assault case, either as a prosecutor or defense attorney.”

In the rare occasion that there are not enough judge advocates at the Combat Center to adequately cover the number of Article 32 investigations pertaining to sexual assault, judge advocates from Marine Corps Base Camp Pendleton, Calif., can be brought here for the investigation.

“A lot of the driving factors in these changes is sexual assault,” Bastar said. “They’re trying to increase the victim’s rights and limit the rights of a commanding officer to not go forward on sexual assault cases.”

Article 60 involves the sentencing of the accused and rights of convening authorities.

The changes under Article 60 have put new limits on what a convening authority can do after a sentence has been issued, especially when it has to do with sexual assault cases. It was within the right of the convening authority, commanding officers for Special Courts-Martial and commanding generals for General Courts-martial, to provide clemency for the accused, by approving or disapproving a sentence.

“They’ve been trying to take [the clemency right] away for some time now,” Bastar said.

Article 60 no longer allows the convening authorities to dismiss a sentencing after the accused has been found guilty. These limitations extend to pre-trial agreements made to reduce sentences before the accused can be found guilty.

“In civilian court, it’s a deal between you and the prosecutor that says, ‘Hey, if you plead guilty to this, we’ll support sentence,’” Bastar said. “It’s basically a contract between the accused and the convening authority. So say the agreement is to only approve two years [in prison] and the sentence comes back for five years in prison, based on the agreement with the [convening authority], only two years will be served.”

The limitations on pre-trial agreements will prevent the convening authorities ability to reduce any sentence.

Articles 120 and 125 have simple but impactful changes to laws regarding sexual assault. The former, which had a five-year statute of limitations for all sexual assaults, has been lifted, allowing the conviction of Marines within any time period.

“So if on Jan. 20, 2009, somebody sexually assaulted somebody, then today that statute of limitation would have run and you would not have been able to prosecute them,” Bastar said. “But now, it eliminates that.”

Article 125, consensual sodomy, was a crime under the UCMJ. This is a correction in the UCMJ because of a Supreme Court decision of Lawrence vs Texas in 2003, which declared that prosecuting consensual sodomy was unconstitutional.

“It infringes on someone’s privacy rights,” Bastar said. “That was a Supreme Court decision but it has been around the military for quite a while.”

The changes to the articles on Dec. 23 have also made it a requirement to hold General Courts-Martial for certain sexual offenses and mandates a dishonorable discharge if convicted of certain sexual assault offenses.

All changes of the listed articles are scheduled to go into effect this year, but are subject to change. Any questions regarding these changes can be directed to the Victim Legal Counsel.
Marine Corps Air Ground Combat Center Twentynine Palms