OSTC

Congress directed establishment of the Army’s Office of Special Trial Counsel in the FY22 National Defense Authorization Act to create an independent prosecution and referral authority within the Army for 13 UCMJ offenses known as “covered offenses.” The OSTC authority took effect Dec. 28, 2023. Formal complaints of sexual harassment in violation of Art. 134, UCMJ which are substantiated in accordance with Army Regulation will become covered offenses beginning Jan. 1, 2025. The FY22 NDAA military justice reform measures transferred key authorities from commanders to independent judge advocates on all cases involving covered offenses. The special trial counsel has exclusive authority to 1) determine if a reported offense is a covered offense, 2) make a binding determination to refer charges and specifications to trial by general or special court-martial, 3) enter into plea agreements on behalf of the government, and 4) withdraw or dismiss any charges or specifications. Additionally, a certified special trial counsel must serve as government counsel on any case where charges were referred by a special trial counsel.

Special trial counsel exercise authority over serious offenses, called covered offenses, which include murder, manslaughter, kidnapping, domestic violence, stalking, child pornography offenses, and most sexual assault and sexual misconduct offenses. In accordance with the FY23 NDAA, formal complaints of sexual harassment in violation of Art. 134, UCMJ which are substantiated in accordance with Army Regulation will become covered offenses beginning Jan. 1, 2025.

For offenses committed on or after Dec. 28, 2023, special trial counsel have exclusive authority to make certain case disposition decisions regarding covered offenses. In accordance with the FY24 NDAA, special trial counsel may exercise authority over certain offenses committed before Dec. 28, 2023, but are not required to do so.

The Lead Special Trial Counsel reports directly to the Secretary of the Army. All special trial counsel report to and are supervised by the Lead Special Trial Counsel. They are independent of the military chains of command of the victim and the accused.

There is no change in how other offenses are handled by the military justice system. Examples include drug use or distribution, unauthorized absence, desertion, disobedience of a lawful order, and disrespect to a superior commissioned officer.

Each special trial counsel has been individually certified to prosecute covered offense cases. To be certified, each prosecutor must meet standards in education, training, experience, and temperament to ensure they are fully qualified to serve in the OSTC. Specifically, military attorneys must have prior training in the handling of covered offense cases, along with significant criminal litigation experience, in order to be certified.

If the reported offense alleges a covered offense occurring after Dec. 28, 2023, then it will be referred to special trial counsel who will exercise exclusive disposition authority. Where special trial counsel decide not to refer charges and specifications to trial by general or special court-martial, Commanders may still pursue nonjudicial punishment or take adverse administrative action against the accused. There is no change in how non-covered offenses are handled by the military justice system. These offenses will be referred to Commanders for appropriate disposition, after consultation with their servicing judge advocate.

It depends. If there is insufficient evidence of any crime to prosecute, no further action is typically taken. However, in cases returned to the command, the command may choose to subject the alleged offender to non-judicial punishment, administrative discipline, or a discharge action.

Yes, prosecutorial decisions made by the special trial counsel are binding and are fully independent from the military chains of command of the victim and the accused.

Sexual assault response coordinators and victim advocates continue to provide the same services to victims, including ensuring they receive the care they deserve through efforts such as addressing safety needs, explaining reporting options, ensuring they receive the appropriate medical and non-medical care and support, and advocating for the victim throughout the process. While it is important for SARCs and VAs to be aware of the changes to the legal process and how they impact the decision of a victim to file an unrestricted or restricted report, SARCs and VAs support victims regardless of how they choose to report.

Sexual harassment will not be considered a “covered offense” until Jan. 1, 2025. Until then, sexual harassment will continue to be handled under the previous system. Commanders, with advice from judge advocates, determine what to do in those cases. Sexual harassment allegations will be covered offenses if the date of the incident is after Jan. 1, 2025, a formal complaint is made, and the complaint is substantiated.