The effective-date minefield

Congress and the President have made many changes, both large and small, in the Uniform Code of Military Justice and the Manual for Courts-Martial in recent years. Service regulations and rules of court also change over time. Naturally, in this era in which "we are all textualists," the careful lawyer's, law clerk's and judge's first stop is the official text of the document at issue. But what is the second stop?

Given the Niagara of changes in the governing documents, it is now more essential than ever to make a habit of also checking the effective date prescribed in the Public Law, Executive Order, service regulation or court rule change. There is no other way to be certain that you are applying the proper version.

Effective dates for statutory changes are conveniently set out in the Notes that follow each section of the U.S. Code, including the Uniform Code of Military Justice. For Manual changes, service regulations and rules of court, the task typically takes a bit more time, as it will be necessary to consult the pertinent Executive Order, promulgating letter or court order, some of which may not be as handy as the U.S. Code. 

Drafters typically take pains to avoid ex post facto issues by prescribing future effective dates or defining triggering events in ways that avoid the unfair or unconstitutional application of new rules. Changes may also have delayed effectiveness baked in in recognition of the time that may be required to draft and obtain approval for implementing regulations or to stand up new offices or organizations (a recent example being the Special Trial Counsel offices that this month assume responsibility for the disposition of a host of "covered," "related" and "known" offenses). The "Statutory Notes and Related Subsidiaries" for art. 24a, UCMJ, states:

Effective Date of 2022 Amendment

Pub. L. 117–263, div. A, title V, §542(b), Dec. 23, 2022, 136 Stat. 2581 , provided that: "The amendments made by subsection (a) [amending this section] shall take effect immediately after the coming into effect of the amendments made by section 531 of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 135 Stat. 1692) [enacting this section] as provided in section 539C of that Act (10 U.S.C. 801 note)."

Effective Date

Section effective on the date that is two years after Dec. 27, 2021, and applicable with respect to offenses that occur after that date, with provisions for delayed effect and applicability if regulations are not prescribed by the President before the date that is two years after Dec. 27, 2021, see section 539C of Pub. L. 117–81, set out as an Effective Date of 2021 Amendment note under section 801 of this title.

Residual Prosecutorial Duties and Other Judicial Functions of Convening Authorities in Covered Cases

Pub. L. 117–263, div. A, title V, §541(c), Dec. 23, 2022, 136 Stat. 2580 , provided that: "The President shall prescribe regulations to ensure that residual prosecutorial duties and other judicial functions of convening authorities, including granting immunity, ordering depositions, and hiring experts, with respect to charges and specifications over which a special trial counsel exercises authority pursuant to section 824a of title 10, United States Code (article 24a of the Uniform Code of Military Justice) (as added by section 531 of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 135 Stat. 1692)), are transferred to the military judge, the special trial counsel, or other authority as appropriate in such cases by no later than the effective date established in section 539C of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 10 U.S.C. 801 note), in consideration of due process for all parties involved in such a case."

The recently-signed National Defense Authorization Act for Fiscal Year 2024, Pub. L. No. 118-31, 137 Stat. 136 (2023), illustrates the challenges of fixing effective dates for legislation with many moving parts. Section 531(c) provides:

(c) AUTHORITY OF SPECIAL TRIAL COUNSEL WITH RESPECT TO CERTAIN OFFENSES OCCURRING BEFORE EFFECTIVE DATE OF MILITARY JUSTICE REFORMS ENACTED IN THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2022.—

                (1) AUTHORITY.—Section 824a of title 10, United States Code (article 24a of the Uniform Code of Military Justice), as added by section 531 of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 135 Stat. 1692), is amended by adding at the end the following new subsection:

                ‘‘(d) SPECIAL TRIAL COUNSEL AUTHORITY OVER CERTAIN OTHER OFFENSES.—

                                ‘‘(1) OFFENSES OCCURRING BEFORE EFFECTIVE DATE.—A special trial counsel may, at the sole and exclusive discretion of the special trial counsel, exercise authority over the following offenses:

                                                ‘‘(A) An offense under section 917a (article 117a), 918 (article 118), section 919 (article 119), section 920 (article 120), section 920b (article 120b), section 920c (article 120c), section 928b (article 128b), or the standalone offense of child pornography punishable under section 934 (article 134) of this title that occurred on or before December 27, 2023.

                                                ‘‘(B) An offense under section 925 (article 125), section 930 (article 130), or section 932 (article 132) of this title that occurred on or after January 1, 2019, and before December 28, 2023.

                                                ‘‘(C) An offense under section 920a (article 120a) of this title, an offense under section 925 (article 125) of this title alleging an act of nonconsensual sodomy, or the standalone offense of kidnapping punishable under section 934 (article 134) of this title that occurred before January 1, 2019.

                                                ‘‘(D) A conspiracy to commit an offense specified in subparagraph (A), (B), or (C) as punishable under section 881 of this title (article 81).

                                                ‘‘(E) A solicitation to commit an offense specified in subparagraph (A), (B), or (C) as punishable under section 882 of this title (article 82).

                                                ‘‘(F) An attempt to commit an offense specified in subparagraph (A), (B), (C), (D), or (E) as punishable under section 880 of this title (article 80).

                                ‘‘(2) EFFECT OF EXERCISE OF AUTHORITY.—

                                                ‘‘(A) TREATMENT AS COVERED OFFENSE.—If a special trial counsel exercises authority over an offense pursuant to paragraph (1), the offense over which the special trial counsel exercises authority shall be considered a covered offense for purposes of this chapter.

                                                ‘‘(B) KNOWN OR RELATED OFFENSES.—If a special trial counsel exercises authority over an offense pursuant to paragraph (1), the special trial counsel may exercise the authority of the special trial counsel under subparagraph (B) of subsection (c)(2) with respect to other offenses described in that subparagraph without regard to the date on which the other offenses occur.’’.

                (2) CONFORMING AMENDMENT TO EFFECTIVE DATE.—Section 539C(a) of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 10 U.S.C. 801 note) is amended by striking ‘‘and shall’’ and inserting ‘‘and, except as provided in section 824a(d) of title 10, United States Code (article 24a(d) of the Uniform Code of Military Justice), shall’’.

Working through a provision like this is not for the faint of heart. 

Because of the growing complexity of the military justice system and the cascading changes in recent years, Congress, the President, and other authorities have turned to a diverse range of starting points for the application of new or amended legal provisions. Some of these are familiar; others are more bespoke. The chosen effective date may be, for example, the date of the—

• enactment or promulgation of the change or some later date calculated from the date of enactment or fixed by the President, service secretary or court
• offense
• imposition of nonjudicial punishment
• action that is said to constitute command influence in violation of art. 37, UCMJ
• preliminary hearing or advice
• referral of charges for trial
• arraignment
• conviction
• action by the U.S. Court of Appeals for the Armed Forces on a petition for grant of review, a petition for an extraordinary writ, or a writ-appeal

When military justice was simpler and changes less frequent, the danger of applying the wrong version was slight. In the current fast-changing world of American military justice, lawyers can no longer rely on personal or institutional memory or casual consultation with colleagues. Getting it wrong can be wasteful as well as embarrassing. See, e.g., United States v. Brubaker-Escobar, 81 M.J. 471, 473 n.7 (C.A.A.F. 2021) (on reconsideration) (per curiam). Those responsible for training new judge advocates, staff judge advocates and military judges will want to stress this, if they don't already do so. Vexing issues of construction will inevitably still arise, but at least there should be attention to and agreement on which version governs where there has been a change.