Will the National Defense Authorization Act for FY 2022 Impact Your Case?

President Biden signed the National Defense Authorization Act (NDAA) for Fiscal Year 2022 into law in December. What does the new Defense Authorization Act provide? How will it affect your case and the work of your military defense attorney? Keep reading for some answers.

The military justice sections of the NDAA for FY 2022 establish ground-breaking reforms that depart considerably from two centuries of military justice practices. The NDAA for FY 2022 will alter the Uniform Code of Military Justice (UCMJ) in several important new ways.

What Is the Office of the Special Trial Counsel?

The NDAA creates an independent new Office of the Special Trial Counsel (STC) for each branch of the Armed Forces except for the Coast Guard. The STC will report to the civilian secretary of the service rather than the chief of staff or judge advocate general. The STC will now have the authority to:

1.  decide which offenses are UCMJ “covered offenses” subject to his or her own discretion
2.  dismiss or withdraw charges for covered offenses
3.  refer a covered offense charge for court-martial
4.  negotiate plea deals with defendants

The Special Trial Counsel will have full authority over covered offenses, “related” offenses, and “any other offense” allegedly committed by a defendant. That represents a substantial change in the way covered offenses are handled.

The FY22 NDAA makes historic policy changes that are designed to benefit service members and their families, including reforms that have been created to deliver accountability and results that bring more justice to the survivors of sexual assault in the U.S. military.

For instance, the STC will have the authority to prosecute a service member who is accused of a sexual assault and extramarital sexual conduct linked to the same incident, as well as any related alleged offenses, such as the dereliction of duty or willful disobedience to a superior commissioned officer.

The provisions of the NDAA for FY 2022 that create the new Special Trial Counsels are scheduled to take effect two years from the bill’s December 27, 2021 signing date and will deal with offenses allegedly committed after that date.

How Will the STC Affect the Authority of Commanding Officers?

It’s probably wrong to conclude that the NDAA reduces the ability of commanders to foster good order and discipline and enhance the job performance reliability of those in the Armed Forces. The language of the NDAA actually does little to change the current abilities of commanders at various levels.

And at all levels, the creation of the Office of the Special Trial Counsel does not alter the ability and right of commanders to investigate relatively minor misconduct, especially misconduct of a “martial” nature. For commanders at all levels, the NDAA does not limit their ability to:

1.  authorize searches or seizures for potential evidence, on the basis of a neutral and independent determination, without obtaining authorization from a military magistrate
2.  make recommendations regarding criminal cases to a higher-ranking commander

How Are Commanders With the Authority to Convene Court-Martials Affected?

Commanders who have the authority to convene court-martials retain their authority to:

1.  hold soldiers in confinement or restraint prior to trial
2.  deal with allegations of “non-covered” offenses
3.  dismiss and withdraw charges for non-covered offenses for any reason
4.  modify or approve findings (not guilty or guilty) and sentences in some scenarios
5.  suspend or defer portions of sentences for some offenses
6.  approve limited clemency after some convictions and sentencings

There are almost one hundred non-covered offenses, ranging from “malingering” to serious felonies like robbery and assault. If you are accused of any of these offenses – covered or non-covered – you must seek advice and representation from a military defense lawyer at once.

What Other Reforms Are Established by the NDAA for FY 2022?

Both commanders and UCMJ-designated civilian officials who have the authority to convene court-martials retain the right and ability to:

1.  decide who serves on court-martial panels
2.  offer immunity for testimony in prosecutions for non-covered offenses
3.  approve plea bargains for non-covered offenses
4.  order pretrial investigations into a defendant’s mental capacity and responsibility

Some of the other reforms established by the National Defense Authorization Act for FY 2022 include:

1.  The NDAA classifies sexual harassment as a UCMJ offense under Article 134. It requires independent investigations of complaints of sexual harassment with specified timelines.
2.  The NDAA further protects survivors of sexual assault or sexual harassment by requiring the Department of Defense to track retaliation allegations made by these survivors.
3.  Military judges rather than panels will make the sentencing determinations for all noncapital convictions at general and special courts-martial.
4.  Sentences for convicted offenders will be determined within particular new “sentencing parameters.” Judges may depart from these parameters only if they include the factual reason and basis for the departure in writing in the trial record.
5.  Article 133’s offense of “conduct unbecoming an officer and a gentleman” has been revised to read “conduct unbecoming an officer.”
6.  To address the challenges of racial and ethnic inequity in the military justice system, the NDAA now requires the inclusion of race and ethnicity in annual reports on sexual assaults.

What Else Should You Know?

It’s too early to know if these reforms to military justice will be, as President Biden has suggested, the “most significant reforms to our military undertaken in recent history.”

The UCMJ is a complicated set of laws. If you are serving in the Armed Forces, a conviction for a violation of the UCMJ could ruin your future or even send you to prison. If you’re accused of a UCMJ violation on active duty, you must contact the right military defense attorney at once.

When someone is accused of a crime under the Uniform Code of Military Justice, that person may face a court-martial. When a court-martial is conducted, if the defendant is convicted, he or she may face harsh penalties including:

1.  loss of benefits and pay
2.  dishonorable discharge or reduction of rank
3.  loss of the right to own a firearm
4. sex offender registration (for sex crime convictions)
5.  incarceration

A conviction for sexual assault will be harshly penalized. A conviction for rape in a military court may be penalized with life in prison. If you are charged with any UCMJ violation, you must be advised and represented by an up-to-date and experienced military defense lawyer.