Tuesday, April 29, 2014

Military Justice Review Group

Sr. Judge Andrew S. Effron
Director of the Military
Justice Review Group
Suggestions to the Pentagon's Military Justice Review Group for improvements in the military justice system can now be emailed to OSD.UCMJ@mail.mil. The Office of General Counsel has recommended that comments be submitted by July 1, 2014.

Here are some personal suggestions to kick off the conversation:

Basket 1, Jurisdiction

1.1  Impose a statutory service-connection requirement (less petty offense and overseas exceptions) and overturn the Court of Military Appeals' decision regarding dependent-victim cases in United States v. Solorio, 21 M.J. 251 (C.M.A. 1986), aff'd, 483 U.S. 435 (1987)

1.2  Repeal the Graham Amendment to Art. 2(a), UCMJ, on personal jurisdiction over civilians serving with or accompany an armed force in the field in time of declared war or a contingency operation or, if it is retained, provide for civilian representation on courts-martial of civilians

1.3  Amend the Military Extraterritorial Jurisdiction Act to remove the exemption for host-state nationals

Basket 2, Courts-Martial

2.1  Abolish summary courts-martial

2.2  Create standing special and general courts-martial

Basket 3, Convening Authority and the Prosecution Function

3.1  Abolish convening authorities

3.2  Create an independent Chief Trial Counsel in each branch with disposition power for all offenses other than minor disciplinary offenses

3.3  Require disposition decisions to be made in accordance with Justice Department standards for the prosecution of criminal cases in the district courts

3.4  Create an independent court-martial administrator in each branch to select court members

Basket 4, Military Judges

4.1  Institute nonrenewable 10-year terms for trial and appellate military judges

4.2  Military judge implementation of pretrial agreements

4.3  Judge sentencing (including the power to suspend) except in capital cases

Basket 5, Appellate and Collateral Review

5.1  Abolish the service courts of criminal appeals

5.2  Abolish CAAF and transfer its jurisdiction to the D.C. Circuit (and if not, (a) repeal the political balance requirement, (b) make terms nonrenewable, and (c) repeal the 7-year-cooling-off-period modification of the Joe Baum Act)

5.3  Appeal as of right as to findings and sentence (including sentence appropriateness) for all courts-martial

5.4  Abolish TJAGs' power to certify cases

5.5  Subject all CAAF decisions to potential U.S. Supreme Court review by writ of certiorari, making it clear in the process that all issues are reviewable, not simply those on which CAAF has granted review

5.6  Organic act for collateral review of courts-martial

Basket 6, Nonjudicial Punishment

6.1  Require proof beyond a reasonable doubt

6.2  Make clear that Art. 15, UCMJ, "vessel exception" cannot be enlarged by deeming personnel to continue within its scope even after they have as a practical matter been transferred off vessel

Basket 7, Punitive Articles

7.1  Restrict Art. 134(2), UCMJ, to the original (Articles of War) intent

Basket 8, Transparency

8.1  Mandate prompt public/media access to trial and appellate case documents via the federal courts' PACER system

Basket 9, Rule making

9.1  Transfer the service secretaries' and TJAGs' military justice rule making powers to the President or Secretary of Defense

9.2  Require a single set of uniform rules of trial procedure and professional and judicial conduct

Basket 10, Economy/Austerity Measures

10.1  End Project Outreach

10.2  Abolish the Code Committee

10.3  Consolidate service law schools

What are your suggestions? Use the comment function below. No anonymous comments, please.


  1. Hello Everyone,

    Please share in this comment section of the blog whatever suggestions you send out to OSD.UCMJ@mail.mil. - so that other viewers can track on it as well. Your feedback and comments help students like myself (social workers & therapists) to better understand the legal aspect of the military justice system.


  2. I agree with many of the suggestions made and will make the extent of my agreement known. However before I do I would like to say that many of the problems encountered would be avoided if ordinary criminal law offences committed by members of the Forces were tried by ordinary civilian criminal courts. The military justice system should be confined to disciplinary proceedings for disciplinary offences like conduct prejudicial to discipline, insubordination, away without leave, etc. Criminal offences like assault, theft, arson, criminal negligence, murder, fraud manslaughter, etc. should be prosecuted before criminal courts. It does not matter if the victim is a member of the military or the goods belong to the military. The civilian prosecutions before civilian criminal courts would not preempt disciplinary proceedings before military tribunals.

    I suspect this is asking too much at this time although countries respectful of human rights and an accused's fundamental, substantive and procedural rights have either abolished military tribunals in peacetime or deprived them of their jurisdiction over ordinary criminal law offences and civilians.

    I entirely support:

    1. The requirement of a military nexus

    2. The elimination of the military courts' jurisdiction over civilians

    3. The restructuration of summary trials and the limitation of their jurisdiction to purely disciplinary offences

    4. The creation of a standing court martial as opposed to "ad hoc courts". Canada still has not done that. As the Court Martial Appeal Court of Canada said in one of its decision, the only thing that is standing about the Standing Court Martial is the fact that the Court is not standing.

    5. The creation of an independent court-martial administrator. In Canada, panel members of a General Court Martial are selected at random and the presiding judge is assigned to the case by the Chief Military Judge.

    6. If military judges are appointed on terms, these terms should not be renewable for the reasons given by the CMAC in Leblanc v. Her Majesty The Queen 2011 CMAC 2. Security of tenure is essential to both actual and apparent justice.

    7. Broaden the spectrum of sentences so as to eliminate as far as possible the disparities between the range of sentences available to civilian judges and those available to military judges,

    8. Provide a right of appeal equivalent to the right of appeal available to an accused prosecuted before an ordinary criminal court. Equality of rights, justice and fairness require no less than that.

    9. Finally I agree that, in relation to ordinary criminal law offences, the burden of proof on the prosecution must be one beyond reasonable doubt.

  3. Scrap the Code Committee in its current form, but you need something to replace it since military justice statutes tend to remain stuck.

    Principle No. 20 of Draft Principles Governing the Administration of Justice Through Military Tribunals (UN Human Rights Commission): "Codes of military justice should be subject to periodic systematic review, conducted in an independent and transparent manner, so as to ensure that the authroity of military tribunals corresponds to strict functional necessity, without encroaching on the jurisdiction that can and should belong to ordinary civil courts."

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