CRS report of interest

Ott & Kamarck, Military Justice Disposition Delimitation Legislation in the 117th Congress. Congressional Research Service, October 18, 2021.

This report provides a framework for Congress to consider the three disposition delimitation proposals in the House and Senate FY2022 National Defense Authorization Act bills. The terms “delimited disposition” and “disposition delimitation” refer to any procedure that requires disposition authority for a specified offense to be transferred from a commanding officer to a judge advocate.

Scope of Report The first section of this report includes a brief overview of the military criminal justice system, followed by a comparative analysis of the House and Senate proposals regarding delimited disposition. The final section of the report describes the legislative considerations for each proposal’s approach to delimiting disposition.

​Historical Context For more than two decades, Congress has sought to address sexual misconduct in the military by enhancing servicemember accountability under the military justice system. Despite these legislative efforts and Department of Defense (DOD) policy initiatives, independent evaluations have pointed to deficiencies in the department’s approach to accountability. In February 2021, Secretary of Defense Lloyd J. Austin directed an Independent Review Commission to assess DOD sexual assault prevention and response programs. On September 22, 2021, the Secretary issued guidance implementing the commission’s recommendations. Specific instructions for the first phase of implementation are to be issued by the Under Secretary of Defense for Personnel and Readiness on October 13, 2021, with full implementation of this phase estimated to be complete by 2027. Throughout the 1940s, Congress received evidence of military justice maladministration. The primary concerns were the system’s lack of due process and independence. Congress responded to these concerns by enacting the Uniform Code of Military Justice (UCMJ) in 1950. Although legislative reforms establishing the UCMJ relied on civilian criminal law and procedure as a model, the reforms also preserved many historical attributes of military justice, such as a commander’s discipline and disposition authority. Preserving certain attributes meant that although the UCMJ replicated a civilian criminal justice system overall, the reforms did not allow judge advocates to make decisions regarding the criminal prosecution of servicemembers. Prosecutorial discretion remained a function of command, and judge advocates continued to serve as advisors to commanders regarding their prosecutorial authority. 

Cheers, Phil Cave