Historic Changes to the Manual for Courts-Martial and Military Justice

On 28 July 2023, President Biden signed Executive Order (EO) 14103 implementing significant amendments to the Manual for Courts-Martial (MCM).[1] These changes include the creation of a new Office of Special Trial Counsel (OSTC) and reforms to the court-martial sentencing system to promote uniformity and fairness in sentencing across the military.

MJA has a proven track record of success and is committed to providing the highest quality legal representation to its clients. Given recent changes to the UCMJ, service members facing criminal prosecution need, more than ever, to be represented by an experienced attorney. If you or a loved one is under investigation or facing court-martial, contact us today for a free consultation.

Historic Changes to the Manual for Courts-Martial

On 28 July 2023, President Biden signed Executive Order (EO) 14103 implementing significant amendments to the Manual for Courts-Martial (MCM). These changes, described by the White House as representing the “most significant transformation of the military justice system since the UCMJ was established in 1950,” are extensive.

The amendments reflect updates to the MCM regarding the Office of Special Trial Counsel (OSTC), randomization of member panels, military judge alone sentencing, sentencing parameters and criteria, and modification of the appellate review process. This article addresses some of the most important changes that service members should be aware of.

Establishing the Offices of Special Trial Counsel (OSTC)

Established by the FY22 National Defense Authorization Act (NDAA), the OSTC is composed of specially trained military lawyers responsible for the expert and independent prosecution of serious criminal offenses under the UCMJ. The OSTC is independent from the military chain of command of the accused and has the exclusive authority to determine whether a “covered” offense should be prosecuted. “Covered offenses” include:

• Article 117a, Wrongful Broadcast or Distribution of Intimate Visual Images
• Article 118, Murder
• Article 119, Manslaughter
• Article 119a, Death or Injury of an Unborn Child*
• Article 120, Rape and Sexual Assault
• Article 120a, Mail, Deposit of Obscene Matter*
• Article 120b, Rape and Sexual Assault of a Child
• Article 120c, Other Sexual Misconduct
• Article 125, Kidnapping
• Article 128b, Domestic Violence
• Article 130, Stalking
• Article 132, Retaliation
• Article 134, Child Pornography
• A conspiracy, solicitation, or attempt to commit a covered offense is also a covered offense.

Creation of the OSTC is the most historic and significant change to the MCM in decades because it essentially replaces the role of the commanding officer with that of an independent prosecutor. Historically, a service member’s commanding officer alone had the authority to dispose of allegations of misconduct and “convene” a court-martial. Under the new system, it is the OSTC—not the commanding officer—who has the “exclusive authority” to determine whether a reported offense is a covered offense and whether it will be prosecuted.

In addition prosecuting covered offenses, the OSTC may also exercise authority over: (1) any offense the OSTC determines to be related to a covered offense (related offense); (2) any other offense alleged to have been committed by the same person accused of committing a covered offense (known offense); and (3) any covered offense committed before 28 December 2023 except those noted by an asterisk below. The OSTC took effect on 27 December 2023 and now has jurisdiction with respect to covered offenses that occur after that date.

The Affect on Service Members Facing Court-Martial

Creation of the OSTC is both good and bad for service members facing criminal prosecution. On one hand, creation of the OSTC is good because it should mean that weak and spurious allegations are not referred to court-martial. All too often in the past, service members find themselves at court-martial for allegations that are obviously not supported by convincing evidence and where there is low likelihood of conviction. The OSTC will hopefully exercise its discretion for good to prevent unnecessary criminal prosecutions.

The downside for service members, however, is that courts-martial that do take place will be based on solid evidence and will be prosecuted by the most experienced military attorneys, thereby increasing the likelihood of convictions. Additionally, since the commander is not the person deciding whether or not to refer charges, a service members’ reputation and career will not really be considered by charging authorities. Given these changes, it is absolutely essential for service members facing court-martial to have the very best legal defense representation.

MJA has a proven track record of success and is committed to providing the highest quality legal representation to its clients. Given recent changes to the UCMJ, service members facing criminal prosecution need, more than ever, to be represented by an experienced attorney. If you or a loved one is under investigation or facing court-martial, contact us today for a free consultation.

Sentencing by Military Judge Alone

The Manual for Courts-Martial was also amended to include significant sentencing reforms that will directly impact service members convicted at court-martial. One of the most important of these changes requires sentencing by military judge alone for all non-capital offenses.

Section 539E of the FY22 NDAA provides that, except for capital offenses, if an accused is convicted of an offense in a trial by general or special court-martial, “the military judge shall sentence the accused.” This is a massive change to military sentencing and will most certainly hurt service members who are convicted at court-martial.

Historically, one of the most important rights at court-martial for an accused was the right to elect sentencing by members. Jurors are selected to be fair and impartial, come from diverse backgrounds, and are allowed to debate and vote on the most appropriate sentence for an accused based on the convictions, the totality of the facts and circumstances surrounding the case, and the evidence in extenuation and mitigations. Consequently, members (juries) are generally best situated to issue an appropriate sentence.

Military judges, on the other hand, offer a less fair option. Many military judges are known for being overly friendly to the prosecution and see it as their responsibility to “max out” service members convicted under the UCMJ. Even the most fair and honest military judge receives an evaluation report from his or her boss and will most certainly feel pressure to award certain types of sentences. Additionally, unlike a jury where there are multiple opinions and perspectives, a military judge will be awarding sentences based on his or her individual notions of fairness.

Sentencing by military judge alone applies to cases in which all findings of guilty are for offenses that occurred after 27 December 2023.

Creation of Sentencing Parameters for Confinement

Section 539E of the FY22 NDAA also created “sentencing parameters” or ranges within which a military judge must sentence a convicted service member. Under the new law, the military judge “shall sentence the accused . . . within the applicable parameters,” unless an exception applies. A military judge may impose a sentence outside of the sentencing parameters only upon finding specific facts that warrant a deviation from the predetermined guidelines.

The MCM created multiple new charts classifying all UCMJ punitive articles into offense categories (1-6) and creating recommended ranges of confinement for each category.