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Follow up to more changes in the UCMJ

In a recent blog post, we discussed proposed Congressional changes to the UCMJ, primarily to provide for more transparency in cases involving sexual assault.

This follow-up post will explore what these changes would mean for servicemembers.

Changes from Article 134 rules

Many crimes that were previously tried under Article 134, which is a general Article, will now have individual laws for those specific offenses. Several of these new articles will be aimed at protecting the integrity of criminal investigations while many of the others will be for the purpose of modernizing laws already in place. Under the proposed changes to Article 134, prosecutors will no longer have to prove that the crime itself discredits the military but instead will be required to prove the allegation based on its own specific merits. One of the chief goals of the proposed legislation is to make the military justice system more similar to the civilian justice system in terms of modernization, efficiency, and transparency.

Additional change

Another proposed change is for sentences to be issued only by military judges, based on sentencing guidelines. Further, military judges will be required to take an active role in the plea bargaining process. Rather than allow the plea bargain process to be limited to the accused and the command, military judges will be made aware of plea bargain settlements, the cap agreed to in that settlement and will be given the discretion to disregard that cap if the judge finds it unjust.

The new proposals would also make the appeals process more like the civilian federal process, and make court-martial records more accessible to the public.

Supporters of these proposed changes say they are being made to give more oversight to the military judicial process and protect both the accused and the accuser from outside pressure and backroom politics.

Not everything will change

One thing that will not change even if the latest proposals are passed is the ability of commanders to decide if a charges should be sent to a court martial. Commanders will also be able to decide what type of charges can be filed and what kind of plea agreements can be made.

If these proposed changes are made, the landscape of the military justice system will change significantly. It is more important than ever to make sure you have sound, experienced legal defense counsel if you are facing possible criminal charges by the military.

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David P. Sheldon | International Military Law Attorney

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