2022 National Defense Authorization Act (NDAA) Brings Changes For Military Prosecutions

On December 27, 2021, President Joe Biden signed the 2022 National Defense Authorization Act (NDAA) into law. The law includes some of the biggest changes for military justice in decades, if the biggest changes to our military justice system since it was created. Find out what the NDAA means for servicemembers, and when it will take effect.

2022 National Defense Authorization Act Responds to Concerns Over Victims’ Rights

On November 10, 2021, the U.S. Department of Defense’s Office of Inspector General released a report showing that the military was failing to meet federal standards for prosecuting military sex crimes. The Independent Review Commission (IRC) on Sexual Assault in the Military said that the military branch units were failing to designate certified investigators and specially trained prosecutors for some sexual assault and domestic violence cases. As a result, the IRC was concerned that commanders were making decisions about prosecutions and courts-martial based on insufficient criminal investigations and poor legal advice.

The IRC’s report came in the midst of ongoing negotiations over the next year’s National Defense Authorization Act (NDAA). Congress has passed an NDAA every year for six decades, addressing military funding, personnel issues, and prioritization. After intense negotiations, the House and Senate approved the bill with bipartisan support, and President Biden signed the law into effect on December 27, 2021.

NDAA 2022 Makes the “Most Significant” Military Reforms in Decades

However, the 2022 NDAA went further than simply military funding. It included substantial military justice reforms. Don Christensen, a former chief prosecutor of the U.S. Air Force, called the new legislation “the most significant military justice reform in our nation’s history.” White House deputy press secretary Karine Jean-Pierre said:

“The President believes that this legislation takes groundbreaking steps to improve the response and … prevention of sexual assault in the military.”

After NDAA Military Courts-Martial Will Change

The most substantial of those reforms address the military justice system’s handling of sexual assault cases. Right now, when a person raises allegations of rape, sexual assault, or domestic violence against an active-duty servicemember, that issue is handled within the chain of command, just like any other offense. Commanders and Fleet Admirals have the authority to investigate offenses and convene court-martial panels to review evidence and decide the disciplinary consequences for that servicemember. In military sex crimes cases, the DOD is supposed to designate a certified investigator and special-victims prosecutors from within JAG, and appoint a victim advocate.

The 2022 NDAA creates a new Office of the Special Trial Counsel (STC) for each Service (Army, Navy, Marine Corps, Air Force, and Space Force, but not Coast Guard). This office reports to the civilian Secretary for the Service, not The Judge Advocate General, though the prosecutors will be Judge Advocate officers. The STC will have “exclusive authority” over many issues previously handled by the commander who would have convened a court martial, including:

  • Determining authority over the reported offenses
  • Withdraw or dismiss charges
  • Refer matters to court-martial
  • Enter plea agreements

Commanders vs STC: Who Is In Charge of Addressing Military Crimes?

The STC’s authority is based on specific “covered offenses”:

  • Wrongful broadcast or distribution of intimate visual images (Article 117a)
  • Murder (Article 118)
  • Manslaughter (Article 119)
  • Rape and sexual assault, and some other sexual misconduct (Articles 120, 120b, 120c)
  • Kidnapping (Article 125)
  • Domestic violence (Article 128b)
  • Stalking (Article 130)
  • Retaliation (Article 132)
  • Producing, processing, receiving, viewing, and distributing child pornography (Article 134)
  • Conspiring to, attempting, or soliciting any of the above (Articles 80, 81, 82)

However, once the STC has authority over a servicemember’s discipline, that authority extends to any “related” offenses and “any other offense” the accused allegedly performed, even if they are unrelated to the covered offenses. Anything that doesn’t fall within the STC’s authority will still be addressed by the servicemembers’ commanders within the chain of command.  Given the types of cases that have been taken to courts-martial over the past decade, the STC will now make prosecutorial decisions over the majority of cases taken to a General Court-Martial.  That is a HUGE change.

New Sexual Harassment Offense

In addition to the covered offenses listed above, the STC will also have authority over a new UCMJ offense, “sexual harassment.” This covers sexual misconduct which is “of a nature to bring discredit upon the armed forces” or is “prejudicial to good order and discipline.” Any claim of sexual harassment must be investigated by an independent investigator outside the chain of command.

New Military Sentencing Parameters

Perhaps even more of a fundamental change than who is making the prosecutorial decision, is the sentencing reforms.  Where in the year 2022 sentencing reforms typically mean modifying a criminal justice system to lighten mandatory minimums and create better opportunities for rehabilitation and reintegration, that is not what the 2022 NDAA seeks to accomplish.

The National Defense Authorization Act of 2022 is transferring sentencing authority from courts-martial panels to military judges. These judges will then be required to make sentencing determinations based on new “sentencing parameters” that will be similar to the federal Sentencing Guidelines.

For the first time in the military justice system, and in a trend opposite from what is happening nationwide in civilian criminal justice systems, the military justice system is moving from a system where there are no mandatory minimum sentences to confinement to a system system that will effectively result in minimum periods of confinement. This will stem from the sentencing parameters that will soon be created.

The stated goal of these sentencing parameters is to increase fairness in disciplinary proceedings by eliminating sentencing disparities.  The result, however, will be greater periods of confinement for those convicted at a court-martial.  A new Military Sentencing Parameters and Review Board under the DOD will make recommendations for parameters and criteria to be put into effect by the President.

When Will the NDAA Military Reforms Take Effect?

The 2022 NDAA was signed in late 2021. However, many of the military justice reforms it included will not take effect for two years. Then they will only apply to new misconduct committed after the effective date. The law lays out significant work for the President and the Department of Defense to do in the meantime, including establishing regulations for the STC, and prescribing the sentencing parameters. If the President doesn’t act quickly enough, the NDAA’s reforms will not be effective until those Executive Orders are entered.

Get Help Defending Against Military Prosecutions

The NDAA’s reforms demonstrate that the Services will be putting military prosecutions in the hands of JAG officers specially trained to investigate serious and sexual crimes. If you find yourself involved in those investigations, you need an attorney just as skilled to act in your defense.

At Aviso Law, LLC, our military attorneys are veterans themselves. We have been handling criminal cases in military and civilian courts for years. We know how to help servicemembers facing court martial. We are here to serve you and will see you through the process to protect your military career. Contact us today to schedule a consultation.

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