National Defense Authorization Act (NDAA) for FY14 – Military Justice Modifications

On 26 December 2013, the President signed the FY14 National Defense Authorization Act (NDAA) into law.  The legislation contains 38 sections addressing military justice issues, including some significant changes to military law, including the following:

• Section 1702(a), completely rewriting Article 32, changing the nature of the hearing from an investigation to a “preliminary hearing,” explicitly granting a victim the right to refuse to testify, and mandating that the hearing be recorded by “a suitable recording device.” These provisions will take effect one year after enactment.
• Section 1702(b), significantly rewriting Article 60(c) to eliminate references to “command prerogative” and “sole discretion of the convening authority,” prohibiting a convening authority from disapproving findings of guilty to all but minor offenses, and significantly restricting a convening authority’s ability to grant sentence relief absent a pretrial agreement or recommendation from the trial counsel. These provisions will take effect 180 days after enactment.
• Section 1703, eliminating the 5-year statute of limitations on the offenses of sexual assault (Art. 120(b)) and sexual assault of a child’ (Art. 120b(b)), effective on the date of enactment.
• Section 1704, requiring, if requested by the alleged victim, the presence of “trial counsel, a counsel for the victim, or a Sexual Assault Victim Advocate” whenever “defense counsel” interviews an alleged victim of sexual assault. The section also states “defense counsel shall make any request to interview the victim through trial counsel.”
• Section 1705, establishing a mandatory minimum sentence of dismissal or dishonorable discharge for the offenses of rape (120(a)) or sexual assault (120(b)), rape of a child (120b(a)) or sexual assault of a child (120b(b)), forcible sodomy (125), or attempts to commit these offenses. The section also limits jurisdiction over these offenses to general courts-martial. These provisions will take effect 180 days after enactment, and apply only to offenses committed on or after that date.
• Section 1706, modifying Article 60 to allow the victim to submit matters for the convening authority’s consideration before action on the results of trial.
• Section 1707, repealing the offense of consensual sodomy.
• Section 1744, requiring creation of Service-level policies for the “review of decisions not to refer charges for trial by court-martial in cases where a sex-related offense has been alleged by a victim of the alleged offense.” This section also requires forwarding of cases in two scenarios: Forwarding to the service secretary for review any case where a staff judge advocate acting under Art. 34 recommends referral of sexual assault offenses and the convening authority refers no charges to trial; and forwarding to the next superior GCMCA for review when the SJA recommends against referral and no charges are referred.

These changes to the military justice system will have a profound effect on the rights of servicemembers accused of crimes, particularly sex offenses. 

If you or a loved one is accused of committing an offense under military law (particularly a sex offense), please call JAG Defense for a free consultation with our experienced Civilian Military Lawyers.

Navy E-7 was charged with Aggravated Sexual Assault following a night of partying with his female Division Officer and other junior Sailors. His Division Officer alleged that he sexually assaulted her while she was substantially incapacitated due to intoxication. At trial, our cross-examination of the alleged victim highlighted the various inconsistencies in her story, as well as a significant motive to fabricate her allegations against our client. Result: The Officer and Enlisted Member Panel found our client NOT GUILTY of Aggravated Sexual Assault.