DAC-IPAD Recommendations 

Report on Reforming Pretrial Procedures and Establishing Uniform Prosecution Standards, June 2023

Recommendation 48a: Amend Article 32 to provide that a preliminary hearing officer’s determination of no probable cause precludes referral of the affected specification(s) to a general court-martial—subject to reconsideration as described in Recommendation 48b—without prejudice to the government to prefer new charges.

Recommendation 48b: Amend Article 32 and Rule for Courts-Martial 405 to permit reconsideration of a preliminary hearing officer’s no-probable-cause determination upon the presentation of newly discovered evidence, or evidence that, in the exercise of due diligence, could not reasonably have been obtained before the original hearing, subject to the following:

  1. Trial counsel, within 10 days of receiving the preliminary hearing officer’s report, petitions the preliminary hearing officer to reopen the Article 32 preliminary hearing stating the nature of the newly discovered evidence and the reason it was not previously presented. After 10 days, a petition may be made only for good cause shown.
  2. The preliminary hearing officer shall reconsider their previous no-probable-cause determination one time upon reopening the Article 32 preliminary hearing to receive the evidence as described above. After reconsideration, the preliminary hearing officer’s determination as to whether probable cause exists is final but is without prejudice to the government to prefer new charges.

Recommendation 49: The Secretary of Defense revise Appendix 2.1, Manual for Courts-Martial, to align with the prosecution principles contained in official guidance of the United States Attorney General with respect to disposition of federal criminal cases. These revisions should provide that special trial counsel refer charges to a court-martial, and judge advocates recommend that a convening authority refer charges to a courtmartial, only if they believe that the Service member’s conduct constitutes an offense under the Uniform Code of Military Justice (UCMJ), and that the admissible evidence will probably be sufficient to obtain and sustain a conviction when viewed objectively by an unbiased factfinder.

Recommendation 50: The Secretary of Defense require all special trial counsel and judge advocates who advise convening authorities to receive training on the newly established prosecution standards in Appendix 2.1 of the Manual for Courts-Martial. The training shall emphasize the principle that referral is appropriate only if these special trial counsel and advisors believe that the Service member’s conduct constitutes an offense under the UCMJ, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction when viewed objectively by an unbiased factfinder.

DAC-IPAD Biennial Victim Collateral Misconduct Assessment, September 2023

Recommendation 51: The DAC-IPAD recommends that Congress amend section 547 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232, to require the Military Services to report the number of incidents of collateral misconduct by type of offense and adverse action taken, if any, in future victim collateral misconduct reports.

Recommendation 52: The DAC-IPAD recommends that Congress require the Department of Defense (DoD) to provide the Service-specific data collected pursuant to its Safe-to-Report policy in accordance with section 539A of the FY21 NDAA, to the DAC-IPAD at the same time and covering the same time periods that it currently collects and submits victim collateral misconduct data to the DAC-IPAD pursuant to FY19 NDAA section 547 biennial collateral misconduct reports.

Randomizing Court-Martial Panel Member Selection: A Report on Improving an Outdated System, December 2023

Recommendation 53: Congress should amend Article 25(e) to remove the requirement for the convening authority to detail members who “in his opinion, are best qualified” based on “age, education, training, experience, length of service, and judicial temperament.”

Finding 1: At the time that the Article 25(e) “best qualified” criteria were established in the UCMJ in 1950, military judges did not preside over courts-martial and panel members also served as the sentencing authority. Changes in the law have resulted in the establishment of a trial judiciary with military judges presiding at every court-martial. In addition, military judges will soon serve as sentencing authority in all but capital cases, reducing the panel’s role to determining the guilt or innocence of the accused, as is the case in federal and most state courts. This tailoring of the panel’s role to fact-finding eliminates the rationale for the “best qualified” criteria in Article 25(e).

Finding 2: The Article 25(e) criteria and “best qualified” mandate result in courts-martial panels composed primarily of officers and senior enlisted Service members. There is no longer a military justification to support this composition. Seniority relative to the accused sufficiently accounts for the military’s hierarchical rank structure.

Recommendation 54: Congress should retain the Article 25(e)(4) requirement for the convening authority to detail members randomly selected under regulations prescribed by the President. The qualifying words “to the maximum extent practicable” should be removed.

Finding 3: Removal of the subjective “best qualified” criteria, along with implementation of a process to randomize member selection, will help eliminate the perception that the convening authority is selecting those members most likely to reach a certain result and thus will increase trust and confidence in the military justice system.

Finding 4: Randomizing the court-martial member selection process is not compatible with the Article 25(d) requirement for the convening authority to select members who are “best qualified” according to existing criteria.

Finding 5: Officers and enlisted members of all grades are qualified to serve on courts-martial panels.

Recommendation 55: The Joint Service Committee on Military Justice should draft an amendment to the Rules for Courts-Martial, pursuant to the requirement in Article 25(e)(4), to provide for a randomized courtmartial panel member selection process utilizing the Military Services’ personnel and pay systems to select the members. This process should preclude the convening authority or other members of command or the judge advocate office from hand selecting members. In addition to the statutory qualification requirements, the randomized selection process should provide for diversity of members based on grade.

 Finding 6: The Military Services have the capability to use their personnel and pay systems to generate a randomized pool of Service members for court-martial duty based on objective criteria. This technology will enable increased efficiency, fairness, and objectivity in the panel selection process.

Finding 7: A purely random selection of Service members would result in a panel primarily consisting of junior members. Selecting panel members of different grades will lead to a more diverse panel with regard to age and experience.

Recommendation 56: The Secretary of Defense should direct that a pilot project be initiated to create a court administrator position to be responsible for the panel member selection process—rather than the staff judge advocate or command staff.

Finding 8: A randomized method of panel selection that removes from the convening authority or others in the chain of command or judge advocate office the responsibility to administer the selection process will provide more transparency and thereby increase Service members’ and the public’s trust in the court-martial process.

Recommendation 57: Congress should amend Article 25 to explicitly give convening authorities the authority to determine whether randomly selected Service members are available prior to being detailed to a court-martial panel and retain the authority in Article 25 to exempt or excuse individuals for operational requirements or personal reasons after they have been detailed.

Finding 9: In the interest of military readiness, convening authorities must retain availability and excusal determination authority.

Recommendation 58: The Joint Service Committee on Military Justice should draft an amendment to the Rules for Courts-Martial to provide a transparent method for convening authorities to document availability and excusal determinations.

Finding 10: Documentation of the bases for excusal and availability determinations increases transparency and the perception of fairness, and minimizes the risk of abuse of the process. Recommendation 59: Congress should retain the requirement in Article 25(e)(1) that when it can be avoided, no accused Service member may be tried by a court-martial in which any member is junior to the accused in rank or grade.

Finding 11: The Article 25 requirement that court-martial members be senior in rank and grade to the accused serves a specific military purpose to maintain the hierarchical rank structure of the military.

Recommendation 60: Congress should amend Article 25 to add a two-year time-in-service requirement for court-martial panel member eligibility. For Service Academy cadets and midshipman, the calculation of time in service would commence upon commissioning.

Finding 12: A minimum length of service requirement is supported by specific military purposes: to ensure that initial military training is completed and to give Service members a greater understanding of military culture.

Finding 13: A minimum length of service requirement of two years eliminates the need to require a minimum age for serving as a panel member.

Recommendation 61: The Joint Service Committee on Military Justice should draft an amendment to the Rules for Courts-Martial to establish uniform criteria for automatic exemption from serving as a court-martial member. For example, federal courts require jury members to be proficient in English, have no disqualifying mental or physical condition, and not be subject to felony charges or be convicted of a felony. The amendment should delegate authority to each Military Department Secretary to promulgate regulations that establish additional bases for automatic exemption. To ensure maximum transparency, any additional exempting criteria established by the Military Departments should be made public through the Federal Register and by other appropriate means.

Finding 14: Federal courts require jury members to be proficient in English, have no disqualifying mental or physical condition, and not be subject to felony charges or be convicted of a felony. Department of Defense accession regulations ensure that all Service members are proficient in English and have no disqualifying mental or physical condition.

Recommendation 62: Congress should amend Article 25(e)(2) and (3) to remove the requirement that the convening authority detail panel members at the time the court-martial is convened. Instead, it should provide that the convening authority must detail panel members within a reasonable time prior to the swearing in of the detailed members and the assembly of the court-martial.

Finding 15: The requirement to detail members at the time a case is referred to court-martial often results in excusal and replacement of a significant number of the originally and subsequently detailed members, creates an administrative burden, and does not serve a military purpose, given the length of time from referral to empanelment and the low percentage of courts-martial in which the accused elects to be tried by members.

Finding 16: Providing the flexibility to detail members later in the process will enable the convening authority to determine more accurately the appropriate number of qualified members to detail to a specific court-martial.

Recommendations for a Uniform Policy for Sharing Information with Victims and Their Counsel, December 2023

Recommendation 63: The Joint Service Committee on Military Justice should draft an amendment to the Rules for Courts-Martial to establish uniformity with respect to the sharing of the following information with a victim and their counsel, if represented:

  1. All recorded and written statements of the victim to investigators or government counsel.
  2. The record of any forensic examination of the person or property of the victim, including the record of any sexual assault medical forensic exam of the victim that is in the possession of investigators or the government.
  3. Any medical record of the victim that is in the possession of investigators or the government.

The rules should specify the government’s obligation to inform individuals that these three categories of information, including copies of statements, recordings, or documents, shall be made available promptly upon request by a victim or their counsel, subject to the following conditions:

  1. The prosecutor shall disclose the information requested promptly, in consultation with the military criminal investigation organization (MCIO), unless otherwise prohibited by law; or
  2. Unless a military judge or military magistrate finds, upon a written submission by the prosecutor demonstrating good cause, that disclosure of the record of a forensic examination would impede or compromise an ongoing investigation. The prosecutor shall state in writing any reasons for nondisclosure and may do so in camera to a military judge or magistrate.
  3. The rules should ensure that, in any case, the policy must not be construed to interfere with the provision of health care to a victim or with a victim’s access to veterans’ benefits.

Recommendation 64: The Joint Service Committee on Military Justice should draft an amendment to the Rules for Courts-Martial to provide a process for issuance of a protective order by a military judge or military magistrate, upon a showing of good cause, that disclosure of the record of a forensic examination would impede or compromise an ongoing investigation, to accompany disclosures to victims and counsel before referral of charges, in accordance with Article 30a, UCMJ.

Recommendation 65: The Secretary of Defense should modify DoD instructions to align with the new rules for sharing these three categories of information.