It would add dozens of new crimes to the Uniform Code of Military Justice.
It would make court-martialing troops on deployment far easier.
It would give military judges more power.
And it would end "bread and water" in the brig — a Navy punishment still on the books after more than 200 years.
Those are among the long list of changes the Pentagon has endorsed in a proposal to rewrite the UCMJ for the modern era.
After a two-year review, the Defense Department is asking Congress to change dozens of articles governing how troops are tried and punished for misconduct. If approved, it would mark the most far-reaching changes to the UCMJ since its inception in 1950.
In a line-by-line review of military laws, top Pentagon lawyers sought to make the military justice system more closely resemble the civilian judicial system.
"They are trying to modernize the system," said one defense official familiar with the review. "They looked at the military justice system by comparing it to best practices in the civilian sector and adapting those practices to the military justice system where it's practical to do so."
The UCMJ review began under former Defense Secretary Chuck Hagel amid concerns about misconduct in the force.
New articles
Among the proposal's biggest changes would be the addition of 37 new articles. Many of them explicitly identify criminal acts that for years have been handled more indirectly under the catch-all Article 134, known as the General Article, which requires proving that the act was harmful to good order and discipline or brought discredit upon the service.
Several of those new articles are designed to protect the integrity of criminal investigations and include for the first time articles that explicitly prohibit:
- Retaliation against a service member for reporting a crime
- Subordination of perjury
- Obstruction of justice
- Alteration or destruction public records
- Deliberate concealment of one's knowledge of a serious offense
- Wrongful refusal to testify
- Wrongful interference with adverse administrative proceeding
- Noncompliance with procedural rules
- Prevention of authorized seizure of property
Other new articles are intended to update the UCMJ to reflect modern technology, including explicit restrictions on unauthorized use of government computers or credit cards. The review says Article 130, or "Stalking," should be updated to include the use of emails, text messages, social media posts and other electronic communications.
Article 120, which covers rape and sexual assault, should be rewritten to match the definition used in federal civilian courts, under another of the recommendations.
Deployments
One key change will make it easier for commanders of deployed units to punish lower-level misconduct.
Specifically, a new law would allow commanders to convene a judge-only special court-martial in which punishment would be capped at six months of confinement and there would be no punitive discharge. That would end the current practice of sometimes gathering numerous troops on a court-martial panel to decide whether and how to punish misconduct.
Courts-martial in forward-deployed environments often are difficult because they can require taking as many as 10 troops off routine duties to participate as "jurors." In some cases, commanders opt to send the accused home for court-martial rather than mount a time-consuming and logistically challenging legal process downrange.
The new law would let commanders put military judges in charge of those courts-martial, eliminating the need for a panel.
It "is the kind of forum that will be especially useful in deployed areas. The more military justice actions that you can do in a deployed area, the better, because you don't want misconduct to become a ticket home," said Charlie Dunlap, a retired Air Force major general and judge advocate who teaches law at Duke University.
The Pentagon has made no decision about potentially changing the Navy's longstanding rule that strips sailors of their right to a court-martial while at sea and gives ship captains of embarked vessels the authority to impose punishment at a "captain's mast." That remains under review, the defense official said.
Judges
The new proposals would empower military judges in several ways, including one recommendation that calls for giving judges control over the sentencing phase of trials.
Under the current system, panels made up of service members render a verdict on guilt and then participate in the sentencing phases of a trial and offer the judge recommendations on specific disciplinary measures.
The Pentagon is calling on Congress to change that and adopt a system in which panel members are dismissed after delivering a guilty verdict, leaving the judge to handle the entire sentencing process.
Another recommendation would give military judges more involvement in the plea-bargaining process.
Under the current system, plea bargains are handled entirely in secret between accused service member and commanding officer. During a trial, military judges have no knowledge of any deal that the convening authority strikes with defense attorneys.
And convening authorities — typically a top general or admiral in a chain of command — have the power to disregard a judge's or jury panel's sentence if it exceeds the caps outlined in the secret plea bargain deal.
The new recommendation would give judges routine knowledge and visibility of any plea-bargain agreements.
"It's a lot more transparent," the defense official said, creating a legal process "where the judge knows what the cap is, and the judge either adjudges the sentence with that cap or says, 'No, that's unjust, I'm not going to do it.' "
Transparency
Another potentially far-reaching recommendation targets how the military court system discloses information.
Today, there are almost no hard requirements for military commanders to release any documents related to a court-martial until long after its end. And accessing information about trials — for lawyers, journalists or the public — can be difficult, costly and time-consuming.
A key piece of the Pentagon's new recommendations calls for making most documents — charge sheets, motions, judge's rulings — available online, similar to the civilian federal court system.
"Traditionally, military courts-martial have been conducted at an installation, within that installation and without much outside interest except for very high-profile cases," the defense official said.
"We are now going to have system in which every case, just as in a federal civilian trial, the motions that are filed and the judicial rulings on the motions and the outcome ... that is all going to be available on the Web. That is a major change in the way the military justice system relates to the world outside the military."
Bread and water
The Pentagon proposal also beseeches Congress to strip Navy captains of their authority to send sailors to the brig on a diet of bread and water, a punishment dating back hundreds of years and still on the books.
The Navy does not keep servicewide data on how often this punishment is used, but current law restricts its use to sailors and Marines in paygrades E-3 and below, and only when a ship is at sea. The diminished rations can be imposed for no longer than three days.
It's time to end this tradition, according to the Pentagon review.
"This proposal reflects confidence in the ability of commanders in a modern era to administer effective discipline through the utilization of the wide range of punishments otherwise available," officials said.
Andrew Tilghman is the executive editor for Military Times. He is a former Military Times Pentagon reporter and served as a Middle East correspondent for the Stars and Stripes. Before covering the military, he worked as a reporter for the Houston Chronicle in Texas, the Albany Times Union in New York and The Associated Press in Milwaukee.
