2017 NDAA revamps UCMJ

by R. Peter Masterton
21st Theater Sustainment Command Office of the Staff Judge Advocate

Hidden in the back of the 2017 National Defense Authorization Act were a number of major changes in military justice. The last division of the Authorization Act, entitled the Military Justice Act of 2016, contained the most comprehensive changes in recent history to the Uniform Code of Military Justice, the statutory criminal code applicable to all U.S. military personnel.

The Act became law when it was signed by the President on December 23, 2016. However, the changes will not take effect immediately; the Act states that they will become effective on a future date “designated by the President,” but in no event later than January 1, 2019. The Act also requires the President to “prescribe regulations implementing” the changes no later than December 23, 2017: these changes will appear in the Manual for Courts-Martial, the official guide to military justice procedure that is promulgated by the President through Executive Orders. The delayed effective date of the changes will hopefully allow the President time to create a new Manual for Courts-Martial before the changes in the Uniform Code of Military Justice take effect.

Nearly every article of the Uniform Code of Military Justice has been affected by the changes in some way. Many of the changes are minor technical amendments that will only affect lawyers and paralegals that work in military justice. However, other changes are so major that they will affect all service members.

The Act creates a number of new offenses. One of these new offenses, entitled “prohibited activities with military recruit or trainee by person in position of special trust,” prohibits drill sergeants and recruiters from engaging in sexual conduct with trainees and recruits. The Act also lowers the alcohol concentration required for drunk driving from .10 to .08 grams of alcohol per 100 milliliters of blood.

The Act moves many of the offenses currently defined in the “catch-all” provisions of Article 134 to specific punitive articles. Article 134 prohibits all conduct by service members that is prejudicial to “good order and discipline” or brings “discredit upon the service.” For example, kidnapping is currently defined as an offense under Article 134. The changes will move kidnapping to a separate article of the Uniform Code of Military Justice (Article 125) and eliminate the requirement that it be prejudicial to good order and discipline or service discrediting. The Act also renumbers many of the punitive articles.

The Act also contains a number of changes to court-martial procedure. The number of members (jurors) in a general court-martial (the highest level of court-martial) will be changed from a minimum of five to a fixed number of eight members — although the number required in a capital case will remain at twelve. The number of members at a special court-martial (a lower level of court-martial that can adjudge up to a year confinement) will be changed from a minimum of three to a fixed number of four members. The Act also allows for a judge-alone special court-martial where the accused does not have the right to request trial by members; the maximum punishment at this new forum will be limited to six months confinement and no discharge will be authorized.  In addition, the Act permits the accused at a court-martial to ask the judge to conduct sentencing proceedings, even if the accused elected trial by members. The percentage vote required for conviction and sentencing in non-capital cases will be increased from two-thirds to three quarters of the members. In addition, the government will have a new right to appeal the sentence if it “violates the law” or is “plainly unreasonable.”

The changes will bring the military justice system into closer conformity with civilian criminal justice systems in the United States. While the changes will have the most dramatic impact on military justice practitioners, all service members will be affected by them.