§ 540F

The National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, 133 Stat. 1198, ___ (Dec. 20, 2019), includes the provision reproduced below.

The Conference Report indicates (at 1217) only that it came from the Senate bill and that the House receded. Unless the Defense Department obtains an enlargement, the § 540F report (which will require "a study[] conducted for purposes of the report" rather than one that already exists) can be expected in October. Global Military Justice Reform welcomes comments on § 540F. Real names only, please.

SEC. 540F. REPORT ON MILITARY JUSTICE SYSTEM INVOLVING ALTERNATIVE AUTHORITY FOR DETERMINING WHETHER TO PREFER OR REFER CHANGES FOR FELONY OFFENSES UNDER THE UNIFORM CODE OF MILITARY JUSTICE.

(a) REPORT REQUIRED.—
     (1) IN GENERAL.—Not later than 300 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report setting forth the results of a study, conducted for purposes of the report, on the feasibility and advisability of an alternative military justice system in which determinations as to whether to prefer or refer charges for trial by court-martial for any offense specified in paragraph (2) is made by a judge advocate in grade O-6 or higher who has significant experience in criminal litigation and is outside of the chain of command of the member subject to the charges rather than by a commanding officer of the member who is in the chain of command of the member.
     (2) SPECIFIED OFFENSE.—An offense specified in this paragraph is any offense under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), for which the maximum punishment authorized includes confinement for more than one year.

(b) ELEMENTS.—The study required for purposes of the report under subsection (a) shall address the following:
     (1) Relevant procedural, legal, and policy implications and considerations of the alternative military justice system described in subsection (a).
     (2) An analysis of the following in connection with the implementation and maintenance of the alternative military justice system:
        (A) Legal personnel requirements.
        (B) Changes in force structure.
        (C) Amendments to law.
        (D) Impacts on the timeliness and efficiency of legal processes and court-martial adjudications.
        (E) Potential legal challenges to the system.
        (F) Potential changes in prosecution and conviction rates.
        (G) Potential impacts on the preservation of good order and discipline, including the ability of a commander to carry out nonjudicial punishment and other administrative actions.
        (H) Such other considerations as the Secretary considers appropriate.
     (3) A comparative analysis of the military justice systems of relevant foreign allies with the current military justice system of the United States and the alternative military justice system, including whether or not approaches of the military justice systems of such allies to determinations described in subsection (a) are appropriate for the military justice system of the United States.
     (4) An assessment of the feasibility and advisability of conducting a pilot program to assess the feasibility and advisability of the alternative military justice system, and, if the pilot program is determined to be feasible and advisable—
        (A) an analysis of potential legal issues in connection with the pilot program, including potential issues for appeals; and
        (B) recommendations on the following:
              (i) The populations to be subject to the pilot program.
              (ii) The duration of the pilot program.
              (iii) Metrics to measure the effectiveness of the pilot program.
              (iv) The resources to be used to conduct the pilot program.