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The Honorable John McCain

Chairman
United States Senate
Committee on Armed Services
Washington, DC 205 10-65 10

0 6 JUti 20t6

Dear Senator McCain,

This letter respectfully expresses our opposition to and concerns with the proposed legislation
entitled the Military Justice Improvement Act of 2016 ("Improvement Act"). We have chosen
to write in unison our concerns about the legislative proposal that are shared across the
Services.
The military justice system exists to promote justice, in order to maintain good order and
discipline in the Armed Forces, and thereby strengthen national security. It is separate and
distinct from any other American criminal justice system. The Uniform Code of Military
Justice (UCMJ) is a composite of interconnected statutes and the foundation of our military
justice system. Fundamental changes to the system's frameworl such as those
proposed by the Improvement Act, cannot be undertaken without a comprehensive
assessment of the broader effects those changes may have on the system as a whole.
Without careful study of the proposal's effects, enactment and implementation of the
Improvement Act poses considerable risk to the stability of the military justice system.
Removing the commander as convening authority in serious cases, and without accounting
for that change throughout the rest of the UCMJ, would separate command authority from
authority to discipline Servicemembers and hold them accountable and would render the
military justice system at best inefficient, and at worst, ineffective.

In contrast to this piecemeal approach, the Military Justice Act of 2016 (MJA '16), as
partially incorporated in the House of Representatives version and fully supported by the Senate
Armed Services Committee markup of the FYlT NDAA, is the product of a comprehensive
assessment and careful study. Indeed, the MJA '16 proposes the most comprehensive and
sweeping changes to the UCMJ in over 30 years and is premised on the foundational principle of
the commander as convening authority. Although there are a few provisions in the MJA '16 that
cause individualized concerns, we support the MJA '16 overall with its sweeping, but
interconnected, reform of the UCMJ and remain confident that harmony will be achieved in the
upcoming conference discussions. We note, however, the MJA '16 and the Improvement Act
are mutually exclusive: both cannot be enacted and implemented, and implementation of the
Improvement Act would require extensive amendments of the UCMJ and Manual for CourtsMartial that the proposed legislation does not contemplate.

The Improvement Act fails to account for the vital and integral role of the judge advocate.
Commanders do not and cannot make their decisions in a legal vacuum. Instead, every

convening authority is informed and advised by judge advocates throughout the life of a case,
from report and investigation to disposition and adjudication. In particular, before deciding to
refer a sexual assault case to trial, the General Court-Martial Convening Authority hears from
three separatejudge advocates: the detailed trial counsel, thejudge advocate who serves as an
Article 32, UCMJ preliminary hearing officer, and the staffjudge advocate who provides pretrial
advice pursuant to Article 34, UCMJ. Creating a separate office ofjudge advocates,
disconnected from the chain of command, unit discipline, and operational mission, to handle the
disposition of only certain types of crimes would damage the integrity of the military justice
system and critically diminish the essential premise of command authority - the ability to
effectively maintain good order and discipline.
The Department of Defense, the Joint Chiefs of Staff, and the Services have all strongly
opposed the same or similar legislative proposals in previous years. There is no empirical
support for the underlying proposition of the Improvement Act that removing the commander
from the decision chain will promote the effective and just disposition or prosecution of cases.
In fact, a Congressionally formed and independent panel, the Response Systems to Adult
Sexual Assault Crimes Panel (RSP), studied this very question and concluded in June 2014
that commanders, advised by judge advocates, are best positioned to handle disposition
decisions. The RSP found no data to support the claim that removing the commander from the
role of decision maker would reduce the number of sexual assaults or increase the number of
reports of sexual assaults, the number of sexual assault prosecutions, or the sexual assault
conviction rate. By a7-2 vote, after holding 19 days of hearings involving more than 240
witnesses and after having received more than 15,000 pages of information, the RSP
recommended that Congress not remove the commander as decision maker.

The military justice system has evolved and will continue to adapt in order to respond to
the needs of the military. Since 2004, Congress has enacted more than 115 NDAA
provisions affecting the military's sexual assault prevention and response capability. In
recent years, the FY13, FYl4, FY15 and FY16 NDAAs and the work of two
Congressionally formed panels, the RSP and the Judicial Proceedings Panel, have prompted
broad and significant changes. Notably, those changes have provided increased support and
protection for victims, greater transparency to the public and Servicemembers, and enhanced
involvement ofjudge advocates in advising commanders on the exercise of their authority.
Those changes, including giving victims access to free counsel, reinforcing their right to
communicate with the convening authority, and providing for elevated review of nonreferral decisions have been effective, and have contributed to Servicemembers' increased
confidence in the military justice system and military leadership. According to the 2014 RAND
Military Workplace Study, 85 % of respondents reported that their leadership promotes a climate
of respect and trust, and 93 0/o reported that their leadership makes clear there is no place for
sexual assault in the military. We have also seen a decrease in the estimated number of incidents
(26,000 in20l2 to 20,300 in20l4) and an increase in the number of unrestricted reports (l in 10
victims reported in20l2;l in 4 reported in 2014).
The Improvement Act effectively establishes two parallel systems ofjustice: the status
quo is purportedly maintained for military-specific and misdemeanor-level offenses, while
for felony-level offenses, the proposal creates a new office headed by an 0-6 judge advocate
to make case disposition decisions. However, the UCMJ is not neatly divided between
2

misdemeanors and felonies as are civilian codes. Of particular note, Article 134, UCMJ
includes both misdemeanor and felony-level offenses, yet the proposed amendment
indiscriminately prescribes the same treatment for all Article 134 offenses, without regard to
the nature of each specified offense. The result is a mismatch between the offense and the
forum and the process to adjudicate the offense. For example, while Article 134 includes an
offense of drinking liquor with a prisoner that carries a maximum punishment of three
months confinement and no punitive discharge, it also covers production of child
pornography, which has a maximum sentence of 30 years confinement and a dishonorable
discharge.
We are also concerned about the effect of the Improvement Act on the Commander's ability
to employ lower-level and nonjudicial disciplinary measures in instances of minor misconduct
involving "included" offenses. A primary disciplinary tool presently available to commanders is
nonjudicial punishment (NJP) under Aticle 15, UCMJ. NJP is the mechanism used by
commanders to hold Servicemembers accountable for misconduct of a nature and degree that
does not warrant a federal criminal prosecution and conviction. Summary courts-martial provide
another disciplinary tool to address minor misconduct. A Servicemember has the right to
demand trial by court-martial in lieu of summary court-martial, and unless attached to or
embarked in a vessel, NJP. The Improvement Act could, in effect, immunize a Servicemember
from adjudication and punishment. Under the Improvement Act, if the 0-6 judge advocate
determines court-martial is not warranted, the case is returned to the commander, and the
commander offers NJP, the Servicemember could refuse NJP and demand trial by court-martial.
Because the 0-6 judge advocate would have already decided that there would be no courtmartial, there would be no remaining option for action under the UCMJ.

Finally, the Improvement Act provides that implementation of the new system will be
cost-neutral. Yet, the Department of Defense Office of Cost Assessment and Program
Evaluation (CAPE) determined that the additional personnel required by this proposal would
cost the government an additional $113 million per year. The requirement for full-time 0-6
judge advocate disposition authorities and the requirement that they be outside the chain of
command exceed the existing personnel inventory of the Services and do not consider the
administrative support required for the creation and maintenance of these new billets. In
addition to the financial costs, the requirement for full-time 0-6 judge advocates to serve as
disposition authorities necessarily would immediately remove officers from critical billets as
military judges, senior prosecutors, defense attorneys, and staffjudge advocates for our
senior commanders, likely hampering response efforts.
In sum, we have grave concerns about the Improvement Act and trust that these comments
helpful. The Department of Defense and the Services have worked with Congress to
achieve great strides in the fight against sexual assault. As leaders of our respective legal
communities, we must continue to ensure the effective administration of military justice. The
proposal puts that important end state in jeopardy. Vy'e are grateful for your continued interest in
ensuring that ourjustice system holds offenders appropriately accountable, protects the due
process rights of the accused, provides justice to victims, and maintains a disciplined force to
accomplish the mission of national security.
have been

Sincerely

WFORD III
U.S. Navy
General of the Navy

FLORA D. DARPINO
Lieutenant General, U.S.
Judge Advocate General

the Army

CHRISTOPHER F. BURNE
Lieutenant General, U.S. Air Force
Judge Advocate General of the Air Force

U.S. Marine Corps


staff Judge Advocate to the
Commandant of the Marine Corps

CALVIN M. LEDERER
Acting Judge Advocate General of the Coast Guard

The Honorable Jack Reed


Ranking Member
United States Senate
Committee on Armed Services
Washington, DC 205 1 0-65 1 0

' JUN

2016

Dear Senator Reed,

This letter respectfully expresses our opposition to and concerns with the proposed legislation
entitled the Military Justice Improvement Act of 2016 ("lmprovement Act"). We have chosen
to write in unison our concerns about the legislative proposal that are shared across the
Services.
The military justice system exists to promote justice, in order to maintain good order and
discipline in the Armed Forces, and thereby strengthen national security. It is separate and
distinct from any other American criminal justice system. The Uniform Code of Military
Justice (UCMJ) is a composite of interconnected statutes and the foundation of our military
justice system. Fundamental changes to the system's framework, such as those
proposed by the Improvement Act, cannot be undertaken without a comprehensive
assessment of the broader effects those changes may have on the system as a whole.
Without careful study of the proposal's effects, enactment and implementation of the
Improvement Act poses considerable risk to the stability of the military justice system.
Removing the commander as convening authority in serious cases, and without accounting
for that change throughout the rest of the UCMJ, would separate command authority from
authority to discipline Servicemembers and hold them accountable and would render the
military justice system at best inefficient, and at worst, ineffective.

In contrast to this piecemeal approach, the Military Justice Act of 2016 (MJA '16), as
partially incorporated in the House of Representatives version and fully supported by the Senate
Armed Services Committee markup of the FY17 NDAA, is the product of a comprehensive
assessment and careful study. Indeed, the MJA '16 proposes the most comprehensive and
sweeping changes to the UCMJ in over 30 years and is premised on the foundational principle of
the commander as convening authority. Although there are a few provisions in the MJA '16 that
cause individualized concerns, we support the MJA '16 overall with its sweeping, but
interconnected, reform of the UCMJ and remain conflrdent that harmony will be achieved in the
upcoming conference discussions. We note, however, the MJA '16 and the Improvement Act
are mutually exclusive: both cannot be enacted and implemented, and implementation of the
Improvement Act would require extensive amendments of the UCMJ and Manual for CourtsMartial that the proposed legislation does not contemplate.

The Improvement Act fails to account for the vital and integral role of the judge advocate
Commanders do not and cannot make their decisions in a legal vacuum. Instead, every

convening authority is informed and advised by judge advocates throughout the life of a case,
from report and investigation to disposition and adjudication. In particular, before deciding to
refer a sexual assault case to trial, the General Court-Martial Convening Authority hears from
three separatejudge advocates: the detailed trial counsel, thejudge advocate who serves as an
Article 32, UCMJ preliminary hearing officer, and the staffjudge advocate who provides pretrial
advice pursuant to Article 34, UCMJ. Creating a separate office ofjudge advocates,
disconnected from the chain of command, unit discipline, and operational mission, to handle the
disposition of only certain types of crimes would damage the integrity of the military justice
system and critically diminish the essential premise of command authority - the ability to
effectively maintain good order and discipline.
The Department of Defense, the Joint Chiefs of Staff, and the Services have all strongly
opposed the same or similar legislative proposals in previous years. There is no empirical
support for the underlying proposition of the Improvement Act that removing the commander
from the decision chain will promote the effective and just disposition or prosecution of cases.
In fact, a Congressionally formed and independent panel, the Response Systems to Adult
Sexual Assault Crimes Panel (RSP), studied ths very question and concluded in June 2014
that commanders, advised by judge advocates, are best positioned to handle disposition
decisions. The RSP found no data to support the claim that removing the commander from the
role of decision maker would reduce the number of sexual assaults or increase the number of
reports of sexual assaults, the number of sexual assault prosecutions, or the sexual assault
conviction rate. By a7-2 vote, after holding 19 days of hearings involving more than 240
witnesses and after having received more than 15,000 pages of information, the RSP
recommended that Congrcss not remove the commander as decision maker.

The military justice system has evolved and will continue to adapt in order to respond to
the needs of the military. Since 2004, Congress has enacted more than 115 NDAA
provisions affecting the military's sexual assault prevention and response capability. In
recent years, the FY13, FY14, FY15 and FY16 NDAAs and the work of trro
Congressionally formed panels, the RSP and the Judicial Proceedings Panel, have prompted
broad and significant changes. Notably, those changes have provided increased support and
protection for victims, greater transparency to the public and Servicemembers, and enhanced
involvement ofjudge advocates in advising commanders on the exercise of their authority.
Those changes, including giving victims access to free counsel, reinforcing their right to
communicate with the convening authority, and providing for elevated review of nonreferral decisions have been effective, and have contributed to Servicemembers' increased
confidence in the military justice system and military leadership. According to the2014 RAND
Military Workplace Study, 85 o/o of respondents reported that their leadership promotes a climate
of respect and trust, and 93 o/o reported that their leadership makes clear there is no place for
sexual assault in the military. We have also seen a decrease in the estimated number of incidents
(26,000 in20l2 to 20,300 in20l4) and an increase in the number of unrestricted reports (l in 10
victims reported in2012;l in 4 reported in 2014).
The Improvement Act effectively establishes two parallel systems ofjustice: the status
quo is purportedly maintained for military-specific and misdemeanor-level offenses, while
for felony-level offenses, the proposal creates a new office headed by an 0-6 judge advocate
to make case disposition decisions. However, the UCMJ is not neatly divided between
2

misdemeanors and felonies as are civilian codes. Of particular note, Article 134, UCMJ
includes both misdemeanor and felony-level offenses, yet the proposed amendment
indiscriminately prescribes the same treatment for all Article 134 offenses, without regard to
the nature of each specified offense. The result is a mismatch between the offense and the
forum and the process to adjudicate the offense. For example, while Anicle 134 includes an
offense of drinking liquor with a prisoner that carries a maximum punishment of three
months confinement and no punitive discharge, it also covers production of child
pornography, which has a maximum sentence of 30 years confinement and a dishonorable
discharge.
We are also concerned about the effect of the Improvement Act on the Commander's ability
to employ lower-level and nonjudicial disciplinary measures in instances of minor misconduct
involving o'included" offenses. A primary disciplinary tool presently available to commanders is
nonjudicial punishment (NJP) under Article 15, UCMJ. NJP is the mechanism used by
commanders to hold Servicemembers accountable for misconduct of a nature and degree that
does not wanant a federal criminal prosecution and conviction. Summary courts-martial provide
another disciplinary tool to address minor misconduct. A Servicemember has the right to
demand trial by court-martial in lieu of summary court-martial, and unless attached to or
embarked in a vessel, NJP. The Improvement Act could, in effect, immunize a Servicemember
from adjudication and punishment. Under the Improvement Act, if the 0-6 judge advocate
determines court-martial is not warranted, the case is returned to the commander, and the
commander offers NJP, the Servicemember could refuse NJP and demand trial by court-martial.
Because the 0-6 judge advocate would have already decided that there would be no courtmartial, there would be no remaining option for action under the UCMJ.

Finally, the Improvement Act provides that implementation of the new system will be
cost-neutral. Yet, the Department of Defense Office of Cost Assessment and Program
Evaluation (CAPE) determined that the additional personnel required by this proposal would
coSt the government an additional $113 million per year. The requirement for full-time 0-6
judge advocate disposition authorities and the requirement that they be outside the chain of
command exceed the existing personnel inventory of the Services and do not consider the
administrative support required for the creation and maintenance of these new billets. In
addition to the financial costs, the requirement for full-time 0-6 judge advocates to serve as
disposition authorities necessarily would immediately remove officers from critical billets as
military judges, senior prosecutors, defense attomeys, and staffjudge advocates for our
senior commanders, likely hampering response effons.
In sum, we have grave concerns about the Improvement Act and trust that these comments
have been helpful. The Department of Defense and the Services have worked with Congress to
achieve great strides in the fight against sexual assault. As leaders of our respective legal
communities, we must continue to ensure the effective administration of military justice. The
proposal puts that important end state in jeopardy. Vy'e are grateful for your continued interest in
ensuring that ourjustice system holds offenders appropriately accountable, protects the due
process rights of the accused, provides justice to victims, and maintains a disciplined force to
accomplish the mission of national security.

Sincerely,

FLORA D. DARPINO
Lieutenant General, U. Army
Judge Advocate General of the Army

Vice
Judge

CHRISTOPHER F. BURNE
Lieutenant General, U.S. Air Force
Judge Advocate General of the Air Force

Navy
General of the Navy
.

Corps
Advocate to the
Commandant of the Maine Corps

CALVIN M. LEDERER
Acting Judge Advocate General of the Coast Guard