April 01, 2019

Military Corner: Amendments to MJA16

By Lieutenant Patrick Rigney, (United States Navy)

On January 1, 2019, amendments to the Military Justice Act of 2016 (MJA16) went into effect. The changes from the amendments to MJA16 are significant departures from existing procedures that have been in use for decades. Here are some of the most noteworthy changes.

Authority to Obtain Evidence
One of the most significant changes under the amendments to MJA16 is the expansion of authority to obtain evidence. Before, practitioners were unable to obtain warrants, court orders, or subpoenas from military courts until charges had already been filed and referred to a court-martial. Under military law, a servicemember is not officially charged until the execution of a sworn document, called a charge sheet, similar to the federal criminal complaint or information. The process of swearing to the charges is called the “preferral.” After preferral, the charges are “referred” to a court-martial because there are no “standing courts” in the military. Until referral, a military judge had no authority to issue search warrants, court orders, or subpoenas. Similarly, prosecutors did not have the authority to issue subpoenas before referral or preliminary hearings.

Now prosecutors can seek pre-referral subpoenas, and judges now have the authority to issue pre-referral subpoenas, court orders, and search warrants, upon application. The evidentiary burdens for these pre-referral investigatory tools track those in the civilian system, as does the process. The Stored Communications Act was amended to include courts-martial as courts of competent jurisdiction, empowered to issue orders and warrants for information. This will have the effect of ensuring that more information is available to military attorneys who make legal recommendations on case disposition and to the decision makers themselves.

Reorganization of Punitive Articles
Another significant change involves the structure of the punitive articles, the criminal offenses under the UCMJ. Many of these articles, codified at title 10 of the United States Code, are uniquely military in their scope while others contain military analogues of crimes in the civilian systems. For example, Article 134 includes many crimes but adds elements that these crimes are prejudicial to good order and discipline and could be discrediting to the military. The amendments reorganized the punitive articles, grouping similar offenses into similar categories and migrated many of the Article 134 offenses enumerated articles. In doing so, these offenses are now easier to prove because the additional elements—that the conduct was prejudicial to good order and discipline or service discrediting—are no longer required to obtain a conviction.

Special Court Martial Created
The amendments also created a type of judge-only special court-martial (SpCM). The SpCM is generally considered a misdemeanor forum, capped at one year of confinement and a bad-conduct discharge whereas the general court-martial (GCM) is typically considered a felony forum with the full range of punishments prescribed for the offenses available, including dishonorable discharges. Before, an accused tried by a SpCM or GCM could elect to be tried by a members’ panel—the military equivalent of a jury—or by a judge alone. Under the new SpCM type, the accused could be tried by a judge only and cannot elect a members’ panel. The offenses chargeable at this new type of SpCM are very narrow with the range of available punishments capped at six months of confinement with no discharge. This new SpCM mimics a federal petty offense where a defendant does not have the right to a jury trial and confinement is capped at six months.

Composition of Members’ Panel
The final significant change involves the members’ panel. Before, a SpCM consisted of a minimum of three members and a non-capital GCM consisted of a minimum of five members, with no maximum. For both types of courts-martial, an enlisted servicemember could elect to have one-third of the members be enlisted; officers always had all-officer panels. The rules did not allow for alternates. Thus, it was possible to have unusual situations where GCM members panels had fewer members than SpCM panels. Additionally, a guilty verdict only needed a two-thirds majority vote of the members. There is no military analogue of a hung jury, meaning if the conviction threshold is not met, the accused is acquitted. Under the amendments, members’ panel sizes are fixed—four for a SpCM and eight for a GCM, though the GCM is allowed to fall to six to allow for attrition during the trial process. Members’ panels are now authorized to have alternate members, similar to alternate jurors in civilian systems. Additionally, members’ panels now must find the accused guilty by a three-fourths majority of the members.

In sum, amendments to MJA16 added authorities that civilian systems already enjoyed and modernized many of its procedures. These are truly exciting times to be working within the military justice system as we strive to support the accomplishment of our mission to protect the American people.

The positions and opinions expressed in this article are those of the author and do not represent the views of the United States Government, the Department of Defense, or the United States Navy. LT Patrick Rigney is an active duty Navy judge advocate currently detailed as a Trial Counsel at Region Legal Service Office Southeast. He obtained a J.D. from the George Washington Law School and a B.A. from the University of Notre Dame.