FORT LEONARD WOOD, Mo. — A presidential executive order is changing how some crimes are handled within the military justice system, by modifying parts of the Manual for Courts-Martial — the changes will go into effect Dec. 27, and will apply to offenses committed after that date.
“The Manual for Courts-Martial contains military law applicable across the Department of Defense,” said Capt. Matt Fine, judge advocate for the Special Trial Counsel and officer in charge of the Fort Leonard Wood Field Office.
One of the most notable changes to the Manual for Courts-Martial will move responsibility for the handling of covered offenses away from military commanders to independent military prosecutors from the Office of Special Trial Counsel.
“Covered offenses include murder, manslaughter, rape and sexual assault, rape of a child, sexual assault of a child, other sexual misconduct, kidnapping, domestic violence, stalking, retaliation, child pornography and wrongful broadcast,” Fine said. “Traditionally, the decision of whether to court-martial a (service member) for the commission of an offense rested with the chain of command. Special Trial Counsel will instead make the decision of whether to prosecute (service members) alleged to have committed a covered offense at a court-martial.”
According to Fine, the Special Trial Counsel is made up of prosecutors individually selected from within the Judge Advocate General's Corps, “who receive additional specialized training in advanced military justice topics and trial advocacy, and who have been certified by the Judge Advocate General to serve in the role.”
Fine said the executive order also, “makes various changes to how panels, such as juries, are comprised, implements sentencing guidelines at courts-martial, and revises the imposition of non-judicial punishment.”
Nonjudicial punishment, often referred to as Article 15 or NJP, provides commanders with a prompt means of maintaining good order and discipline while promoting positive behavior changes in service members, he explained.
“Commanders impose NJP outside of the court-martial process. The executive order implements a preponderance of the evidence standard for imposing NJP. NJP does not result in a criminal conviction, confinement or punitive discharge,” Fine said. “Alternatively, courts-martial are overseen by a military judge and may result in criminal convictions, confinement and punitive discharges.”
According to the U.S. Department of Justice, preponderance of evidence is the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely true than not true.
“The previous standard was beyond a reasonable doubt for Article 15s in the Army. The change to the burden of proof occurred with the signing of the executive order,” Fine said. “The process/mechanics remain the same — commanders notify a (service member) of their consideration of an Article 15, (service members) have an opportunity to meet with an attorney, and then (service members) either elect to proceed with the Article 15 process or turn down the Article 15 process and request trial by court-martial.”
Many of the changes listed in the executive order are related to recommendations made by the Independent Review Commission on Sexual Assault in the Military, which was created in early 2021, at the direction of Secretary of Defense Lloyd Austin, according to an article on the DOD’s website. The commission submitted its final recommendations to the president in June 2021.
To read the entire executive order, visit The White House’s presidential actions website.
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