By Sgt. LaShic Patterson, 2nd Cavalry Regiment, Public Affairs
VILSECK, Germany – On Jan. 1, 2019, the military will see one of the most comprehensive changes created in decades to the Uniform Code of Military Justice through the Military Justice Act of 2016.
The MJA 16 was signed by former President Barack Obama on May 20, 2016. In order to implement the changes, President Donald Trump signed an executive order on March 1, 2018, amending portions of the Manual for Courts-Martial. Both executive orders can be found on the Joint Service Committee on Military Justice website.
Discussing the changes to the UCMJ via the MJA 16 and how they will affect the Soldiers of 2d Cavalry Regiment is U.S. Army Maj. John P. Policastro, the regimental judge advocate for the Rose Barracks Law Center, 2CR in Vilseck, Germany.
“The act came out of a 2013 recommendation from the Joint Chiefs of Staff to take a comprehensive and holistic review of the Uniform Code of Military Justice to ensure the military justice system most effectively and efficiently does justice consistent with due process, good order and discipline,” said Policastro.
“The Secretary of Defense took that recommendation, and he directed the DoD General Council to establish the Military Justice Review Group. They carried out this comprehensive review of the UCMJ.”
The act updated several items acknowledged by the UCMJ to include the below.
The Expansion of Victim’s Rights
“Alleged victims of any UCMJ offense, not just sexual offenses, may elect to have a government council, victim advocate or victim witness liaison present during an interview by the [legal] defense counsel,” said Policastro.
“The accused has the right to submit what we call supplementary matters at the Article 32 preliminary hearing. It’s the due process step that we use to ensure that we are only bringing things to trial that an impartial party has looked at to determine if there is probable cause to go to trial.”
Victims who wish to submit supplementary information will have 24 hours after the completion of the Article 32 hearing to do so and may also request a copy of the trial record upon conclusion of the court-martial.
With the addition of Article 93a, it is now a crime for those serving in training roles with special trust (i.e. drill sergeants, recruiters and advance individual training instructors) to engage in sexual relations and other prohibited activities, regardless of consent, with their trainees and recruits.
Article 93a, which was previously only governed by regulation, is mainly targeted towards new recruits and initial entry trainees in basic training, AIT and the training and doctrine command environment.
“We have the NCO [Non-Commissioned Officer] Academy at the Grafenwoehr Training Area,” said Policastro, adding that Article 93a is based on duty status and not just location. “It could apply there; it could apply to your folks that are going off to courses as trainees.”
The General Article
According to Policastro, updates to Article 134, also known as the General Article, include expanding prohibited activities and changing the term, adultery, to extramarital sexual conduct.
Additionally, many offenses previously categorized under Article 134 have now moved to their own articles or have been integrated into other articles. This change helps to streamline Article 134, allowing it both to reflect the Military Extraterritorial Jurisdiction Act and to apply Title 18, the main criminal code of the federal government, worldwide.
Updates to Article 134 also include that a court-ordered legal separation is an affirmative defense to extramarital sexual conduct. While sexual behavior considered criminal has expanded, the crime still requires proof that a Soldier’s conduct goes against good order and discipline or is service discrediting.
Any retaliation against reporters or witnesses of crimes, gross mismanagement, gross waste of funds, abuse of authority or substantial and specific dangers to public health and safety is now a crime under Article 132.
“Not every instance of being mean to someone who reports a sexual assault or other crime is retaliation,” said Policastro. “Retaliation is, by definition, taking adverse personnel actions against someone.”
Credit Card, Debit Card and Access-Device Theft
Theft and fraudulent use of banking information accomplished via credit cards (including government travel cards), debit cards and other access devices will fall under Article 121a, no longer falling under larceny. Unauthorized access and use of government computer systems for classified or protected information is now a crime under Article 123.
Stalking and cyber-stalking are now crimes under Article 130.
“Definitions of aggravated assault have changed; the definition of stalking has changed,” said Policastro. “Law is catching up to technology with modern policy.”
Driving under the Influence
Under the previous UCMJ, the blood alcohol content level to be considered a DUI was 0.1 while most states in the U.S. have a limit of .08. Now, the BAC is .08, matching stateside laws.
Court-Martial Rulings and Additions
Updates to court-martial rulings will now require a 3/4 majority to agree on both conviction and sentence as opposed to 2/3. The MJA 16 also adds the military-judge-alone court-martial.
“Previously, we had a summary court-martial, which does not count as a conviction outside of the military,” said Policastro. “They’re honestly a lot more like an Article 15 than they are like an actual criminal trial. That still exists. We had a special court-martial, which is presided over by a judge or a jury, depending on how it was referred, with the authority to issue a punitive discharge [and/or] confinement of up to 12 months.”
“Then, for the more serious types of crimes, we have a general court-martial, which did not have any limit on the amount of confinement and can issue the most serious punitive discharge, which is a dishonorable discharge,” said Policastro. “Now, a new version of a court-martial has been added to that, which is a military-judge-alone trial.”
“Previously, even if you got sent to a special court-martial, you got the option of whether to demand trial by a panel or jury or have your case presided over by a judge alone. Now, the government has the option to send you to a court-martial for certain types of offenses, which would only be presided over by a judge. You would not get the option for a jury to hear that trial.”
Crimes that fall under the military-judge-alone court-martial include many with a confinement of six months or less, such as missing movement, disrespecting a noncommissioned officer or being drunk on duty.
“Only certain types of offenses can be sent to that new type of court-martial; if the maximum punishment is over two years or requires sex offender registration, it would not go to that,” said Policastro.
“Your more serious crimes are not going to this new more expedient type of court-martial. You cannot receive a punitive discharge under that type of court-martial, and the confinement is maxed out at six months.”
It is also important for Soldiers if accused of a crime under the UCMJ to understand that they not only are entitled to a JAG attorney at no cost to them but also may hire civilian legal counsel at personal cost.
In spite of the changes, punishment under the UCMJ will continue to be based on two limits. One limit is the maximum punishment chart giving a maximum amount of time for confinement, which can be found under Appendix 12 in the updated Manual for Courts-Martial 2019.
“The other limit is depending on how the crime is disposed of, in other words, Article 15, summary court-martial, the new judge-alone court-martial, special court-martial or general-court martial because each of those forums have their own limitations,” said Policastro.
“For instance, a special court-martial can under no circumstances adjudge more than 12 months confinement. [For an Article 15], the amount of punishment available is based on your rank and on the rank of the person administering the Article 15.”
2CR Soldiers should note the differences in local law versus U.S. and UCMJ law. German law enforcement handles charges, such as DUIs, differently than stateside.
“The Germans usually hand over jurisdiction to the Army, so you do see a lot of UCMJ actions for DUIs here, Article 15’s, et cetera,” said Policastro. “Usually, in stateside duty locations, the civilian court will handle the criminal action for the DUI.”
Appeals and Pre-Trial Agreements
Changes to the UCMJ also include updates to appeals; the U.S. government can now appeal a ruling on behalf of the U.S. Army. Pre-trial agreements, also known as plea deals, have also been updated.
“Now, the convening authority [or the government] and the accused can enter into an agreement that includes a minimum sentence,” said Policastro. “We used to only cover the maximum, but now, pre-trial agreements can cover a maximum and minimum sentence.”
Article 137 within the Manual for Courts-Martial requires periodic training for officers with authority to convene general or special courts-martial, or to administer non-judicial punishment. Officers like Policastro and civilian JAG attorneys attended this 15-hour training not only to learn the purpose and administration of the changes to the UCMJ but also to train others.
Article 137 also prescribes training required for new officers and enlisted members to ensure they are aware of their rights and the punitive articles of the UCMJ.
On Jan. 10, 2019, the 7th Army Training Command is slated to conduct a training on the changes to the UCMJ via the MJA 16 for commanders, first sergeants and command sergeant majors. Policastro will conduct a make-up training for anyone who is unable to attend the training on that date.
For officers and non-commissioned officers not a part of command teams, the Rose Barracks Law Center will also support training to spread the message on the changes, as well.
The Military Justice Review Group hopes to address issues and concerns expressed by Congress and news media with the changes to the UCMJ.
“This was a way for the leadership to respond to those questions and say we are not ignoring people’s concerns; the Army is not ignoring people’s concerns,” said Policastro.
“We have taken this seriously and looked at what we’re doing very closely and determining how do we protect due process, how do we protect the rights of both the accused and the victim and how do we ensure justice.”
For more information on the changes to the UCMJ, 2CR Soldiers can request legal assistance at the Rose Barracks Law Center, in building 245, or they can review the updated Manual for Courts-Martial 2019 or the flyer based on the daily tasking order created by Policastro, which has recently been posted to 2CR’s Facebook page.
The 7th Army Training Command legal office is located on Tower Barracks, Bldg. 214, DSN 569-0521, CIV 09641-70-569-0521.