Legal Update

Changes Ahead for Military Justice

ALLEGATIONS OF SEX CRIMES IN THE ACTIVE-DUTY FORCE AND NATIONAL GUARD will be handled differently in the future. On the federal side, the Uniform Code of Military Justice will change. In addition, regulations impacting both the active and reserve components will be revised to reflect new procedures for how sexual assault and harassment allegations are handled. Secretary of Defense Lloyd Austin recently pledged to work with Congress to modify the Uniform Code of Military Justice to remove sexual assaults, domestic violence, child abuse and retaliation from the military chain of command. Secretary Austin also elevated prosecution of the above crimes to service secretaries which creates specialties for the attorneys assigned to prosecute the aforementioned violent crimes. What does this mean for those accused of crimes in this sensitive area of focus? With an already over-burdened Trial Defense Service, the military services will undoubtedly levy the horsepower required to execute Secretary Austin’s prosecutorial plan in the form of special prosecutor training, forensics, victim and perpetrator psychoanalytics. Conversely, scouring sources revealed almost no mention of how the Trial Defense Service will enhance its specialization to defend those accused, or how Trial Defense Service will undergo any significant resource increases.

While many changes await the lawmaker’s pen, some administrative changes are already taking place. For instance, sexual assault coordinators and victim advocates will no longer report to commanders, and will cease being additional duty billets. To service, their positions will likely require an additional skill identifier. Optimistically, this shift translates that those selected for these billets should generally be considered high performers, and later sought after by commanders who understand culture change needs leaders who have worked in the trenches to do so. Long gone should be the days when historical mediocre candidates are shuffled off to the SARC or SHARP office because onedimensional commanders can only focus on operational expertise, and select their “top block” candidates for numbered staffs. If the services are going to get this right, commanders should be selecting their best to fix what the IRC and the Secretary of Defense have determined is a flawed and outdated culture.

Secretary Austin also accepted the IRC’s recommendation that allegations of sexual harassment be investigated by specially trained investigators; and respondents whose complaints are substantiated be subject to mandatory initiation of involuntary separation proceedings. This modification to administrative process may expose Servicemembers to the most scrutiny because evidentiary standards are low, and harassment is so broadly defined. The National Guard will likely institute the administrative changes in the very near future. Changes to the Texas Code of Military Justice (TCMJ) may follow during the next legislative session. Attorney Doug O’Connell is a retired TXARNG Colonel who focuses on representing military service members, veterans, first responders and their family members. Doug provides free consultations to NGAT members. Call 512-547-7265 or email Ashley@ DougOConnell to get legal help.

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