Justice for Warriors Act
This bill modifies various policies and procedures related to the military justice system, including by amending the Uniform Code of Military Justice (UCMJ).
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3647 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 3647
To improve the military justice system, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 1, 2021
Mr. Gohmert (for himself and Mr. Gosar) introduced the following bill;
which was referred to the Committee on Armed Services, and in addition
to the Committee on the Judiciary, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To improve the military justice system, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Justice for
Warriors Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Pretrial confinement.
Sec. 3. Qualifications and selection of members for courts-martial.
Sec. 4. Preliminary hearings and investigations.
Sec. 5. Role of convening authority.
Sec. 6. Prohibition on certain communications regarding courts-martial.
Sec. 7. Adequate representation of defendants.
Sec. 8. Votes required for conviction, sentencing, and other matters.
Sec. 9. Electronic records of trial.
Sec. 10. Petition for new trial.
Sec. 11. Defense investigators for individuals accused of offenses
under the Uniform Code of Military Justice.
Sec. 12. Prohibition on involuntary separation as nonjudicial
punishment for a charge brought under the
Uniform Code of Military Justice.
Sec. 13. Certiorari to the United States Court of Appeals for the Armed
Forces.
Sec. 14. Treatment of certain records of criminal investigations.
SEC. 2. PRETRIAL CONFINEMENT.
(a) Standard for Pretrial Confinement.--Section 809(d) of title 10,
United States Code (article 9(d) of the Uniform Code of Military
Justice), is amended to read as follows:
``(d)(1) No person may be ordered into arrest except for probable
cause.
``(2)(A) Except as provided in subparagraph (B), no person may be
ordered into confinement for more than seven days unless it is beyond a
reasonable doubt that the person committed the offense for which
confinement is ordered.
``(B) In the event that a determination with respect to reasonable
doubt has not been made by the expiration of the seven day period
described in the subparagraph (A), a person may be placed under in-home
confinement pending such determination.''.
(b) Standard of Proof for Reviews of Pretrial Confinement.--Not
later than 180 days after the date of the enactment of this Act, the
President shall issue regulations revising subsection (i)(2)(A)(iii) of
Rule For Courts-Martial 305 (as set forth in the Manual for Courts-
Martial, 2019 edition, or any successor to such rule) to provide that
the requirements for confinement under subsection (h)(2)(B) of such
rule must be proved beyond a reasonable doubt.
(c) Sentencing Credit for Pretrial Confinement.--Not later than 180
days after the date of the enactment of this Act, the President shall
issue regulations revising subsection (k) of Rule for Courts-Martial
305 (as set forth in the Manual for Courts-Martial, 2019 edition, or
any successor to such rule) to provide that--
(1) the remedy for noncompliance with subsection (f), (h),
(i), or (j) of such rule shall be an administrative credit
against the sentence adjudged for any confinement served as the
result of such noncompliance; and
(2) such credit shall be computed at the rate of 20 days
credit for each day of confinement served as a result of such
noncompliance.
SEC. 3. QUALIFICATIONS AND SELECTION OF MEMBERS FOR COURTS-MARTIAL.
(a) Member Qualifications.--Section 825 of title 10, United States
Code (article 25 of the Uniform Code of Military Justice), is amended
by striking ``on active duty'' each place it appears.
(b) Selection Process.--Section 825(e) of title 10, United States
Code (article 25 of the Uniform Code of Military Justice), is amended--
(1) by amending paragraph (2) to read as follows:
``(2)(A) When convening a court-martial, the convening
authority shall notify the Judge Advocate General of the armed
force of which the convening authority is a member who shall
select the members of the court-martial in accordance with
subparagraph (B).
``(B)(i) After receiving a notification under subparagraph
(A), the Judge Advocate General shall detail members of the
armed forces at random to serve as members of the court-
martial. The selection of members shall be made from a
randomized list of potential members generated using a computer
database that includes all members of the armed forces
(including members serving on active duty and members of the
reserve components) who are eligible to serve as members of the
court martial.
``(ii) The Judge Advocate General shall detail not less
than the number of members necessary to impanel the court-
martial under section 829 of this title (article 29).
``(iii) When convening a court-martial in which the accused
is a member of the reserve components, the Judge Advocate
General shall ensure that not less than half of the panel
members selected to serve on the court-martial are members of
the reserve components.
``(C) No member of an armed force is eligible to serve as a
member of a general or special court-martial in a case in which
that member--
``(i) is the accuser or a witness for the
prosecution;
``(ii) has acted as preliminary hearing officer or
as counsel in the same case; or
``(iii) is assigned to the same unit as the
accused.''; and
(2) by striking paragraph (3).
SEC. 4. PRELIMINARY HEARINGS AND INVESTIGATIONS.
(a) Preliminary Hearing and Investigation.--
(1) In general.--Section 832 of title 10, United States
Code (article 32 of the Uniform Code of Military Justice) is
amended--
(A) in the section heading by inserting ``and
investigation'' after ``Preliminary hearing'';
(B) in subsection (a)--
(i) in paragraph (1)(B)--
(I) by striking ``Under
regulations'' and inserting ``(i) Under
regulations''; and
(II) by adding at the end the
following:
``(ii) In a case in which an a preliminary hearing
is waived under clause (i), the convening authority
shall make a determination as to the disposition which
shall be made of the case in the interest of justice
and discipline, including whether the case should be
referred for trial by general court-martial in
accordance with section 834(b) of this title (article
34(B)).''.
(ii) by striking paragraph (2) and
inserting the following new paragraphs:
``(2) A preliminary hearing shall include--
``(A) a thorough and impartial investigation of all
the matters set forth in the charges and
specifications, including inquiry as to the truth of
the matter set forth in the charges and specifications;
``(B) a determination, which shall be binding on
the convening authority as described in section 834 of
this title (article 34), as to--
``(i) whether or not the specification
alleges an offense under this chapter;
``(ii) whether or not it is beyond a
reasonable doubt that the accused committed the
offense charged;
``(iii) whether or not the convening
authority has court-martial jurisdiction over
the accused and over the offense; and
``(iv) whether or not the case shall be
referred for trial by general court-martial;
and
``(C) if the case shall not be referred for trial
by general court-martial, a recommendation as to the
disposition which shall be made of the case in the
interest of justice and discipline.
``(3) The standards for the admissibility of evidence in a
preliminary hearing shall be the same as the standards for the
admissibility of evidence in a court-martial.'';
(C) in subsection (b), by striking ``conducted by''
and inserting ``presided over by'';
(D) by redesignating subsections (c) through (h) as
subsections (d) through (i), respectively;
(E) by inserting after subsection (b) the following
new subsection:
``(c) Panel.--
``(1) In general.--The determinations under subsection
(a)(2)(B) shall be made by an impartial panel composed of three
members of the armed forces who--
``(A) are eligible to serve on a court-martial
under section 825 of this title (article 25); and
``(B) may not be in a rank that is--
``(i) more than three ranks higher than the
accused; or
``(ii) more than two ranks lower than the
accused.
``(2) Detail of panel members.--
``(A) The preliminary hearing officer shall detail
members to serve on the panel.
``(B) In addition to the members detailed under
subparagraph (A), the preliminary hearing officer shall
detail alternate members who may serve on the panel in
the event that a panel member cannot fulfill the
member's duties.
``(3) Level of concurrence required.--All matters to be
decided by the preliminary hearing panel shall be determined by
the unanimous concurrence of all members present.''; and
(F) in subsection (d), as so redesignated--
(i) in paragraph (1), by striking
``reasoning and conclusions of the hearing
officer with respect to the determinations
under subsection (a)(2)'' and inserting
``reasoning and conclusions of the preliminary
hearing panel with respect to determinations
under subsection (a)(2)''; and
(ii) in paragraph (2), by striking
``Recommendations for'' and inserting ``A
determination with respect to''.
(2) Clerical amendment.--The table of sections at the
beginning of subchapter VI of chapter 47 of title 10, United
States Code (the Uniform Code of Military Justice), is amended
by striking the item relating to section 832 (article 32) and
inserting the following new item:
``832. 32. Preliminary hearing and investigation required before
referral to general court-martial.''.
(b) Investigative Subpoena.--Section 846(d) of title 10, United
States Code (article 46 of the Uniform Code of Military Justice) is
amended--
(1) in paragraph (1)(C), by striking the semicolon and
inserting ``, including an investigation conducted as part of a
preliminary hearing under section 832 of this title (article
32);''; and
(2) by amending paragraph (2) to read as follows:
``(2) Investigative subpoena.--An investigative subpoena
under paragraph (1)(C) may be issued before referral of charges
to a court-martial only if--
``(A) a general court-martial convening authority
has authorized counsel for the Government to issue such
a subpoena;
``(B) a military judge issues such a subpoena
pursuant to section 830a of this title (article 30a);
or
``(C) an officer presiding over a preliminary
hearing under section 832 of this title (article 32)
issues such a subpoena.''.
SEC. 5. ROLE OF CONVENING AUTHORITY.
(a) Referral for Trial by Convening Authority.--
(1) In general.--Section 834 of title 10, United States
Code (article 33 of the Uniform Code of Military Justice) is
amended--
(A) in the section heading by striking ``Advice to
convening authority before referral for trial'' and
inserting ``Referral for trial by convening
authority'';
(B) by redesignating subsections (a) through (d) as
subsections (b) through (e), respectively;
(C) by inserting before subsection (b) the
following new subsection:
``(a) Referral to General Court-Martial.--
``(1) The convening authority may not refer a specification
under a charge to a general court-martial unless--
``(A) the report of the preliminary hearing under
section 832(d) of this title (article 32(d)) concludes
that--
``(i) the specification alleges an offense
under this chapter;
``(ii) it is beyond a reasonable doubt that
the accused committed the offense charged;
``(iii) a court-martial would have
jurisdiction over the accused and the offense;
and
``(iv) the specification shall be referred
to a general court-martial; or
``(B) the accused has waived a preliminary hearing
under section 832(a)(B) of this title (article 32) and
the convening authority determines, in accordance with
subsection (b) of this section (article), that referral
of the specification to a general court-martial is
appropriate.
``(2)(A) Except as provided in subparagraph (B), if the
report of the preliminary hearing indicates that charges and
specifications shall be referred for trial by general court-
martial, the convening authority shall make such referral.
``(B) The convening authority may elect not to make the
referral required under subparagraph (A) only if the convening
authority becomes aware of new evidence that was not considered
at the preliminary hearing under section 832 of this title
(article 32) and such evidence creates reasonable doubt with
respect to the guilt of the accused.
``(3)(A) Except as provided in subparagraph (B), if the
report of the preliminary hearing indicates that charges and
specifications shall not be referred for trial by general
court-martial, the convening authority shall--
``(i) dismiss the charges; or
``(ii) determine whether to dispose of the charges
and specifications through a special court-martial, a
summary court-martial, or through another authority or
proceeding authorized under this chapter other than a
general court martial.
``(B) In a case in which the convening authority becomes
aware of new evidence that was not considered at the
preliminary hearing under section 832 of this title (article
32), and such evidence indicates the guilt of the accused, the
convening authority may order a new preliminary hearing to
include consideration of such evidence.''; and
(D) in subsection (b), as so redesignated--
(i) in the subsection heading, by striking
``General Court-martial'' and inserting
``Advice Before Referral Without Preliminary
Hearing''; and
(ii) in paragraph (1)--
(I) in the matter preceding
subparagraph (A), by striking ``Before
referral'' and inserting ``In a case in
which the accused has waived a
preliminary hearing under section
832(a)(1)(B) of this title (article
32(a)(1)(B)), before referral''; and
(II) in subparagraph (B), by
striking ``there is probable cause to
believe'' and inserting ``it is beyond
a reasonable doubt''.
(2) Clerical amendment.--The table of sections at the
beginning of subchapter VI of chapter 47 of such title is
amended by striking the item relating to section 834 and
inserting the following new item:
``834. 34. Referral for trial by convening authority.''.
(b) Who May Convene General Courts-Martial.--Section 822(a) of
title 10, United States Code (article 22 of the Uniform Code of
Military Justice), is amended by striking ``General courts-martial''
and inserting ``Subject to section 834 of this title (article 34),
general courts-martial''.
SEC. 6. PROHIBITION ON CERTAIN COMMUNICATIONS REGARDING COURTS-MARTIAL.
Section 837 of title 10, United States Code (article 37 of the
Uniform Code of Military Justice), is amended by adding at the end the
following new subsection:
``(e)(1) No court-martial convening authority, nor any other
commanding officer, may provide a briefing concerning a pending court-
martial, or allegations that may lead to a court-martial, to any
subordinate who may be selected to serve as a member of such court-
martial.
``(2) The prohibition in paragraph (1) shall not apply to a
briefing provided in the course of a court-martial proceeding to a
member of the armed forces who is participating in such proceeding.''.
SEC. 7. ADEQUATE REPRESENTATION OF DEFENDANTS.
(a) Adequate Representation.--Section 838(b) of title 10, United
States Code (article 38(b) of the Uniform Code of Military Justice) is
amended by adding at the end the following new paragraph:
``(8) Each Secretary of a military department shall ensure that--
``(A) an accused who is represented by military or civilian
counsel has access to the investigative, expert, and other
services that defense counsel determines is necessary for
adequate representation under this subsection; and
``(B) the amount of funds and other resources provided to
an accused for investigative, expert, and other services under
subparagraph (A) is proportionate to the amount of funds and
other resources provided to prosecutors for such services,
except that the amount funds provided for such defense services
may not exceed actual expenses.''.
(b) Equal Access to Services.--Section 846(a) of title 10, United
States Code (article 46a of the Uniform Code of Military Justice), is
amended by striking the period at the end and inserting ``and equal
access to investigative, expert, and other services.''.
SEC. 8. VOTES REQUIRED FOR CONVICTION, SENTENCING, AND OTHER MATTERS.
Section 852 of title 10, United States Code (article 52 of the
Uniform Code of Military Justice), is amended--
(1) in subsection (a)(3), by striking ``by the concurrence
of at least three-fourths of the members present'' and
inserting ``by the unanimous concurrence of all members
present''; and
(2) in subsection (b)(2), by striking ``by the concurrence
of at least three-fourths of the members present'' and
inserting ``by the unanimous concurrence of all members
present''.
SEC. 9. ELECTRONIC RECORDS OF TRIAL.
Section 854 of title 10, United States Code (article 54 of the
Uniform Code of Military Justice), is amended--
(1) by redesignating subsections (d) and (e) as subsections
(e) and (f), respectively;
(2) by inserting after subsection (c) the following new
subsection:
``(c) Form of Record.--The record shall be kept in electronic
format. A hard copy of the record shall not be kept or maintained
except under such circumstances as the President may prescribe by
regulation. The President shall issue regulations establishing a
process by which a court reporter or official described in subsection
(a) may certify the electronic version of the record.'';
(3) in subsection (e), as so redesignated, by striking
``copy'' and inserting ``electronic and hard copy''; and
(4) in subsection (f), as so redesignated, by striking
``copy'' and inserting ``electronic and hard copy''.
SEC. 10. PETITION FOR NEW TRIAL.
Section 873 of title 10, United States Code (article 73 of the
Uniform Code of Military Justice) is amended--
(1) by striking ``At any time within three years after''
and inserting the following:
``(a) In General.--Except as provided in subsection (b), at any
time after''; and
(2) by adding at the end the following new subsection:
``(b) Limitation.--For any offense that is subject to a statute of
limitations, the right of an accused to petition for a new trial under
subsection (a) shall terminate three years after the date of the entry
of judgment on the offense under section 860c of this title (article
60c).''.
SEC. 11. DEFENSE INVESTIGATORS FOR INDIVIDUALS ACCUSED OF OFFENSES
UNDER THE UNIFORM CODE OF MILITARY JUSTICE.
(a) In General.--Chapter 53 of title 10, United States Code, is
amended by inserting after section 1044e the following new section:
``Sec. 1044f. Defense investigators for individuals accused of offenses
under the Uniform Code of Military Justice
``(a) Designation; Purposes.--The Secretary concerned shall
establish, within the department over which the Secretary has
jurisdiction, an organization (to be known as a `Defense Investigator
Unit') for the purpose of providing investigative assistance to
individuals who are accused of offenses under chapter 47 of this title
(the Uniform Code of Military Justice).
``(b) Administrative Independence.--Each Defense Investigator Unit
shall be funded and maintained independently from any military criminal
investigative organization in the department over which the Secretary
concerned has jurisdiction.
``(c) Equitable Support.--The Secretary concerned shall provide to
the Defense Investigator Unit a level of support, including funding,
staffing, and administrative support, that is sufficient to ensure that
an accused has access to the investigative services necessary for
adequate representation, as required under section 838 of this title
(article 38 of the Uniform Code of Military Justice).
``(d) Equitable Access to Investigations.--The Secretary concerned
shall issue guidance under which a member of a Defense Investigator
Unit--
``(1) may access a crime scene in the same manner and to
the same extent that a member of a military criminal
investigative organization may access a crime scene; and
``(2) to the extent practicable, shall be present during
any investigative activities conducted by a military criminal
investigative organization, including the processing of crime
scenes and witness interviews.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by inserting after the item relating to section
1044e the following new item:
``1044f. Defense investigators for individuals accused of offenses
under the Uniform Code of Military
Justice.''.
(c) Authorization of Appropriations.--There are authorized to be
appropriated to carry out section 1044f of title 10, United States
Code, as added by subsection (a), such sums as may be necessary for
each fiscal year.
SEC. 12. PROHIBITION ON INVOLUNTARY SEPARATION AS NONJUDICIAL
PUNISHMENT FOR A CHARGE BROUGHT UNDER THE UNIFORM CODE OF
MILITARY JUSTICE.
(a) In General.--Chapter 59 of title 10, United States Code, is
amended by inserting after section 1167 the following new section:
``Sec. 1167a. Prohibition on involuntary separation as nonjudicial
punishment for a charge brought under the Uniform Code of
Military Justice
``(a) In General.--Except as provided in section 1167, a member
charged with an offense under chapter 47 of this title (the Uniform
Code of Military Justice) may not be involuntarily separated from the
armed forces solely on the basis of such charge unless--
``(1) the member is convicted of the offense by a court-
martial; and
``(2) separation of the member from the armed forces is
prescribed as a sentence by the court martial.
``(b) Rule of Construction.--Nothing in this section shall be
construed to prohibit the involuntary separation of a member from the
armed forces for misconduct that is not subject to a charge brought
under chapter 47 of this title (the Uniform Code of Military
Justice).''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by inserting after the item relating to section
1067 the following new item:
``1067a. Prohibition on involuntary separation as nonjudicial
punishment for a charge brought under the
Uniform Code of Military Justice.''.
SEC. 13. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES.
(a) Court of Appeals for the Armed Forces; Certiorari.--
(1) In general.--Section 1259 of title 28, United States
Code, is amended--
(A) in paragraph (3), by inserting ``or denied''
after ``granted''; and
(B) in paragraph (4), by inserting ``or denied''
after ``granted''.
(2) Technical and conforming amendments.--
(A) Title 10.--Section 867a(a) of title 10, United
States Code (article 67a of the Uniform Code of
Military Justice), is amended by striking ``The Supreme
Court may not review by a writ of certiorari under this
section any action of the United States Court of
Appeals for the Armed Forces in refusing to grant a
petition for review.''.
(B) Time for application for writ of certiorari.--
Section 2101(g) of title 28, United States Code, is
amended to read as follows:
``(g) The time for application for a writ of certiorari to review a
decision of the United States Court of Appeals for the Armed Forces, or
the decision of a Court of Criminal Appeals that the United States
Court of Appeals for the Armed Forces refuses to grant a petition to
review, shall be as prescribed by rules of the Supreme Court.''.
(b) Effective Date.--
(1) In general.--Subject to paragraph (2), the amendments
made by this section shall take effect upon the expiration of
the 180-day period beginning on the date of the enactment of
this Act and shall apply to any petition granted or denied by
the United States Court of Appeals for the Armed Forces on or
after that effective date.
(2) Authority to prescribe rules.--The authority of the
Supreme Court to prescribe rules to carry out section 2101(g)
of title 28, United States Code, as amended by subsection
(a)(2)(B) of this Act, shall take effect on the date of the
enactment of this Act.
SEC. 14. TREATMENT OF CERTAIN RECORDS OF CRIMINAL INVESTIGATIONS.
(a) Guidance Required.--The Secretary of Defense, in consultation
with the Secretaries of the military departments, shall develop and
implement uniform guidance to modify the systems used by Defense
criminal investigative organizations to document records of criminal
investigations (commonly known as ``title systems'') to ensure that a
record identifying a member of the Armed Forces as the subject of a
criminal investigation is removed from such system if that member is
cleared of wrongdoing as described in subsection (d).
(b) Documentation by Judge Advocate.--As soon as practicable after
a member of the Armed forces is cleared of wrongdoing as described in
subsection (d), a judge advocate in the chain of command of the member
shall submit to the Defense criminal investigative organization
concerned a written notice verifying that the member has been cleared
of wrongdoing.
(c) Deadline for Removal.--A record described in subsection (a)
shall be removed from the title system of a Defense criminal
investigative organization not later than 30 days after the date on
which the organization receives the notice described in subsection (b).
(d) Disposition of Investigations.--A member of the Armed Forces
who is the subject of a criminal investigation shall be considered to
have been cleared of wrongdoing for purposes of subsection (a) if--
(1) the member is found not guilty, not responsible, or it
is found that the reasons specified for the proceeding are
unsupported by the evidence of the offense for which the member
was under investigation--
(A) through a court-martial or other proceeding
brought under the chapter 47 of title 10, United States
Code (the Uniform Code of Military Justice);
(B) through an administrative proceeding within the
Department of Defense or the Armed Force concerned; or
(C) by a civilian court; or
(2) the Government makes a final determination not to
prosecute the member for the criminal offense for which the
member was under investigation.
(e) Defense Criminal Investigative Organization Defined.--In this
section, the term ``Defense criminal investigative organization'' means
any organization or element of the Department of Defense or an Armed
Force that is responsible for conducting criminal investigations,
including--
(1) the Army Criminal Investigation Command;
(2) the Naval Criminal Investigative Service;
(3) the Air Force Office of Special Investigations;
(4) the Coast Guard Investigative Service; and
(5) the Defense Criminal Investigative Service.
<all>
Introduced in House
Introduced in House
Referred to the Committee on Armed Services, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Armed Services, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security.
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