2023 National Defense Authorization Act – Military Justice Legislative Updates

On December 23, 2022, President Biden signed the National Defense Authorization Act (NDAA) for the 2023 fiscal year (FY23). This military spending bill includes many military justice updates that will affect servicemembers in 2023 and beyond. Understanding what’s changing for military courts martial could help you make wiser choices when faced with disciplinary proceedings or separation.

What is the NDAA?

The National Defense Authorization Act is a bill passed by the federal government each year to authorize military funding, set defense priorities, and regulate training, equipment, compensation, and benefits available to servicemembers and veterans. This year’s military spending bill included everything from a 4.6% pay increase for servicemembers and DOD workers to authorizing research into hypersonic weapons, quantum computing, and artificial intelligence.

2023 to See Military Justice Updates

The National Defense Authorization Act for FY23 also made significant changes to the military justice system. The Uniform Code of Military Justice (UCMJ) lays out the rules and regulations that control military justice. The changes the NDAA has made will go a long way to improving servicemembers’ access to justice and ensuring they receive due process when charged with misconduct. Since those charges can result in fines, imprisonment, and military separation, it is important that soldiers have access to a fair process.

Random Jury Selection

The current UCMJ allows the Convening Authority – often a servicemember’s commanding officer – to select who would serve on the jury for that person’s court martial. While it is not supposed to, this creates the opportunity for the Convening Authority to choose people most likely to agree with the Government’s case, putting servicemembers at a disadvantage. In civilian courts, criminal juries are randomly selected, usually from a pool of registered voters in the area. This ensures that neither side has an advantage when presenting their case. Starting in 2025, newly convened courts-martial will have randomly selected jurors, just like in civilian courts, “to the maximum extent practicable.” These random jurors will hear the charges and decide whether the alleged misconduct has occurred. However, unlike civilian criminal juries, there is no constitutional requirement for military jurors to reach unanimous decisions.

Judicial Appeals of Court-Martial Convictions

Another section of the National Defense Administration Act expands servicemembers’ right to appeal court-martial convictions. Historically, the military Courts of Criminal Appeals (one for each branch of service) were only authorized to review certain courts-martial where the sentence upon conviction involved:

  • Death

  • Dismissal of a commissioned officer, cadet, or midshipman

  • Dishonorable discharge or bad-conduct discharge

  • 2 years’ imprisonment or more

Other convictions resulting in less than 2 years imprisonment, or other disciplinary actions, could not be appealed. The NDAA for FY23 amends this section of the UCMJ to ensure all servicemembers have access to an appeal of their convictions. However, this appeal is still limited to processes within the military courts. Military personnel still cannot appeal their convictions to the U.S. Supreme Court.

Special Trial Counsel Gain Authority Over New Charges

Remember that, for most offenses, the person making the prosecutorial decision in military courts-martial are generally the non-lawyer commanding officers acting as “Convening Authorities.” However, the UCMJ also includes the authorization of “Special Trial Counsel” for each branch of service, who determine whether to refer certain types of military misconduct charges to trial. These are licensed attorneys and officers who are certified as qualified by Judge Advocate Generals or the Marines’ Staff Judge Advocate to the Commandant of the Marine Corps, so they have a better handle on the law than most commanding officers.

The NDAA for FY23 adds three new offenses to the list of “covered offenses” referred to Special Trial Counsels:

  • Causing death or injury to an unborn child (Article 119a)

  • Mailing obscene matter (Article 120a)

  • Sexual Harassment (Article 134)

The Special Trial Counsel’s authority over the first two offenses will start December 27, 2023. However, sexual harassment will not fall under their authority until 2025.

NDAA Ends Military COVID-19 Vaccination Mandate and Separations

In addition to these military justice legislative updates, the NDAA is also putting an end to one specific charge for military misconduct. On August 24, 2021, Secretary of Defense, Lloyd J. Austin, III, mandated COVID-19 vaccinations for almost every member of the armed forces. Those who failed to be vaccinated faced the loss of reenlistment opportunities and promotions, and even administrative separation. While there were religious, administrative, and medical exemptions available, receiving one was difficult.

The National Defense Authorization Act rescinded that mandate for all active-duty and reserve servicemembers and ended all pending separations for failure to take the COVID-19 vaccine. In addition, the Secretary of Defense has been encouraged to ensure those separated for violating the policy will receive retroactive full veterans benefits, and to standardize the process of seeking religious and administrative vaccine exemptions across military branches. This means that anyone currently facing disciplinary action for their “anti-vaxx” position may see those charges dismissed.

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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