The Biggest U.S. Military Justice Overhaul In 70 Years

On December 27, 2021, President Biden signed the National Defense Authorization Act for fiscal year 2022 which contained the biggest overhaul of the U.S. military justice system in 70 years (effective December 27, 2023 assuming that the new regulations mandates by the Act are in place by then). This was driven by Congressional concern that the military has mishandled sex offenses and sex discrimination within its ranks. 

The Lawfare blog explores in detail what has changed. The big points are as follows:

The act creates a novel independent Office of the Special Trial Counsel for each service (Army, Navy, Marine Corps, Air Force and Space Force) except the Coast Guard, reporting directly to the civilian secretary of that service, not to the judge advocate general or chief of staff of that service.

This office has primary jurisdiction over all military justice matters concerning someone alleged to have committed a "covered offense" defined as:

wrongful broadcast or distribution of intimate visual images (Article 117a); murder (Article 118); manslaughter (Article 119); rape and sexual assault, including of children, and certain other types of “sexual misconduct” (Articles 120, 120b, 120c); kidnapping (Article 125); domestic violence (Article 128b); stalking (Article 130); retaliation (Article 132); and producing, processing, receiving, viewing and distributing child pornography (Article 134); as well as conspiring to, attempting or soliciting any of the above (Articles 80, 81, 82).

It creates a new sexual harassment offense: 

but only under Article 134. This means such behavior (also defined by this act) is not criminalizable conduct unless the sexual harassment is, under the case-by-case circumstances, “of a nature to bring discredit upon the armed forces” and/or is “prejudicial to good order and discipline.” Both of these elements are highly fact-dependent and, in the latter case, must have a “direct and palpable” negative effect on something clearly germane to military readiness or mission accomplishment.

Sentencing in court-martial cases is reformed more generally: 

Military judges, not panels, will now make the sentence determination for all noncapital convictions, regardless of type of offense, at special and general courts-martial.

Sentencing determinations are to be made within certain new “sentencing parameters;” a judge may depart from the parameters if he or she includes the factual basis and reason for that departure in writing in the record of trial. The sentencing parameters, as well as “sentencing criteria,” shall be prescribed by the president, based on recommendations devised by a newly established Military Sentencing Parameters and Review Board reporting to the secretary of defense. These parameters, having the same purpose as the federal sentencing guidelines, must be prescribed within two years of this section’s enactment.

"Finally, Article 133’s “conduct unbecoming an officer and a gentleman” offense is revised to strike “and a gentleman.”"

The analysis also explores at length what distinctive features of the military justice system remain unchanged to make the point that these changes are not a wholesale "civilianization" of the military justice system.