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.

Exploring the Race, Ethnicity, and Gender of Military Panels at Courts-Martial, July 2024

Finding 1 (on conviction rates): In contested courts-martial tried before a military panel during FY21 and FY22, the vast majority of sexual assault offense cases resulted in an acquittal on the sexual assault offense.

Recommendation 66 (on continuing to measure conviction rates): As required by the DoD Performance Measures and Data Collection Categories published pursuant to Section 547(c) of the FY22 National Defense Authorization Act, the Department of Defense should measure and report the prosecution and conviction rates for sexual assault offenses for both contested and uncontested cases (disaggregated by judge-alone and panel cases) to determine the effects of recent changes in law and policy on case adjudication outcomes. The Department of Defense should compare the prosecution and conviction rates for sexual assault offenses with those for other offenses.

Finding 2 (on enlisted accused and forum selection): During FY21 and FY22, nearly all contested courts-martial for sexual assault offenses tried before a military panel involved an enlisted accused. Enlisted accused rarely selected an all-officer panel.

Finding 3 (on data limitations): The DAC-IPAD faced challenges in obtaining standardized and complete racial and ethnic data from the Services. The DAC-IPAD concurs with the Government Accountability Office’s recent finding that data limitations hinder the Department of Defense’s ability to understand potential racial and ethnic disparities in the military justice system.

Recommendation 67 (on data collection): The DAC-IPAD reiterates its previous recommendations that the Secretary of Defense direct the Military Departments to record, using standardized categories, the race and ethnicity of the accused, victim, military police and criminal investigators, trial counsel, defense counsel, victims’ counsel, staff judge advocates, special and general court-martial convening authorities, preliminary hearing officers, military court-martial panels, military magistrates, and military trial and appellate court judges involved in every case investigated by military law enforcement in which a Service member is the subject of an allegation of a contact or penetrative sexual offense.

Finding 4 (on representation of minorities on details): In sexual assault offense cases, the representation of racial and/or ethnic minorities among those Service members detailed to courts-martial in the Army was similar to their representation in the Army as a whole. The representation of racial and/or ethnic minorities among those Service members detailed to courts-martial in the Air Force and Marine Corps was lower than their representation in their respective Services. The representation of racial and/or ethnic minorities among those Service members detailed to courts-martial in the Navy was lower than their overall representation in the Navy. For the Navy, this difference is statistically significant.

In the Army, racial and/or ethnic minorities constituted 45.3% of Service members detailed to courts-martial panels, while their overall representation in the Army was similar at 46.0%. This difference is not statistically significant.

• In the Navy, racial and/or ethnic minorities constituted 43.3% of Service members detailed to panels, lower than their overall representation in the Navy (53.4%). This difference is statistically significant.
• In the Marine Corps, racial and/or ethnic minorities constituted 40.2% of Service members detailed to panels, a lower percentage than their overall representation in the Marine Corps (43.1%). This difference is not statistically significant.
• In the Air Force, racial and/or ethnic minorities constituted 37.1% of Service members detailed to panels, a lower percentage than their overall representation in the Air Force (39.4%). This difference is not statistically significant.

Finding 5 (on rate of impanelment for minorities): For sexual assault offense cases in the Air Force and Navy, racial and/or ethnic minority Service members on details were more likely to be impaneled than white, not Hispanic Service members. In the Army, racial and/or ethnic minority Service members on details were as likely to be impaneled as white, not Hispanic Service members. In the Marine Corps, racial and/or ethnic minority Service members on details were less likely to be impaneled than white, not Hispanic Service members.

• In the Army, the rate at which white, not Hispanic Service members were impaneled (48.7%) was nearly identical to the rate at which minority Service members were impaneled (48.6%). This difference is not statistically significant.
• In the Navy, minority members were impaneled at a higher rate (45.3%) than white, not Hispanic Service members (43.6%). This difference is not statistically significant.
• In the Marine Corps, minority members were impaneled at a lower rate (43.8%) than white, not Hispanic Service members (46.4%). This difference is not statistically significant.
• For the Air Force, the rate at which white, not Hispanic members were impaneled (41.4%) was less than the rate at which minority members were impaneled (47.2%). This difference is not statistically significant.

Finding 6 (on representation of minorities on panels): For sexual assault offense cases, the representation of racial and/or ethnic minorities on panels in the Army and Air Force was similar to their representation in their respective Services. In the Navy and the Marine Corps, the representation of racial/and or ethnic members on panels was lower than their representation in their respective Services. For the Navy, this difference is statistically significant.

• In the Army, the representation of racial and/or ethnic minorities on panels (45.2%) was similar to their representation in the Service (46.0%). This difference is not statistically significant.
• In the Navy, the representation of minority members on panels was 44.3%, lower than their representation in the Service (53.4%). This difference is statistically significant.
• In the Marine Corps, the representation of minority members on panels was 38.8%, also lower than their overall representation in the Service (43.1%). This difference is not statistically significant.
• In the Air Force, the representation of minority members on panels was 40.2%, higher than their representation in the Service (39.4%). This difference is not statistically significant.

Finding 7 (on use of peremptory challenges for members not impaneled): For contested courts-martial involving sexual assault offenses, peremptory challenges were not used disproportionately to exclude minority members; in three of the four Services, white, not Hispanic Service members were excused because of peremptory challenges at higher rates than minority Service members.

• In the Army, 18.3% of white, not Hispanic Service members were excused because of peremptory challenges, compared with 16.0% of racial and/or ethnic minority Service members. This difference is not statistically significant.
• In the Navy, 18.2% of white, not Hispanic Service members were excused because of peremptory challenges, higher than the rate for racial and/or ethnic minority groups (12.9%). This difference is not statistically significant.
• In the Marine Corps, 15.6% of white, not Hispanic Service members were excused because of peremptory challenges, compared with 16.5% of Service members from racial and/or ethnic minority groups. This difference is not statistically significant.
• In the Air Force, 17.5% of white, not Hispanic members were excused because of peremptory challenges, compared with 16.5% of Service members from racial and/or ethnic minority groups. This difference is not statistically significant.

Finding 8 (on representation of minorities on panels when accused was a minority): In sexual assault cases in the Army and Air Force, panels had a greater representation of racial and/or ethnic minority Service members when the accused was a minority than when the accused was a white, not Hispanic Service member. In the Navy, panels had a similar representation of racial and/or ethnic minority Service members when the accused was a minority and when the accused was a white, not Hispanic Service member. Finally, in the Marine Corps, panels had a lower representation of racial and/or ethnic minority Service members when the accused was a racial and/or ethnic minority Service member than when the accused was a white, not Hispanic Service member. Except for the Army, these differences are not statistically significant.

• In the Army, in cases in which the accused was a white, not Hispanic Service member, the typical panel was composed of 59.6% white, not Hispanic members and 40.4% racial and/or ethnic minority members. In cases in which the accused was a racial and/or ethnic minority, the typical panel was composed of 51.0% white, not Hispanic members and 49.0% racial and/or ethnic minority members. This difference in average percentages across race and/or ethnicity of the accused Service member is statistically significant.
• In the Navy, in cases with a white, not Hispanic accused, the typical panel was composed of 52.2% white, not Hispanic members and 47.8% racial and/or ethnic minority members. In cases with a racial and/ or ethnic minority accused, the typical panel was composed of 52.7% white, not Hispanic members and 47.3% racial and/or ethnic minority members. This difference is not statistically significant.
• In the Marine Corps, in cases with a white, not Hispanic accused, the typical panel was composed of 54.1% white, not Hispanic members and 45.9% racial and/or ethnic minority members. In cases with a racial and/ or ethnic minority accused, the typical panel was composed of 65.7% white, not Hispanic members and 34.3% racial and/or ethnic minority members. This difference is not statistically significant.
• In the Air Force, in cases with a white, not Hispanic accused, the typical panel was composed of 64.2% white, not Hispanic members and 35.8% racial and/or ethnic minority members. In cases with a racial and/ or ethnic minority accused, the typical panel was composed of 55.3% white, not Hispanic members and 44.7% racial and/or ethnic minority members. This difference is not statistically significant.

Finding 9 (on patterns of results): In sexual assault offense cases in all the Services, the patterns of results are the same (1) when the analysis grouped all individuals together, and (2) when the analysis examined the specific details and panels to which individuals were assigned.

Recommendation 68 (on future study): To further understand the potential impacts of United States v. Jeter, as well as future randomization practices, the Department of Defense should conduct a comprehensive study within the next five years, using the same methodology as the DAC-IPAD’s, to assess the diversity of panel members detailed and impaneled on all courts-martial. The Services should provide the race and ethnicity for all Service members included in that study. In addition, to understand the potential underrepresentation of specific racial and/or ethnic groups, the Department of Defense should conduct a parallel study in which it does not aggregate racial and/or ethnic minorities into one category.

Finding 10 (on representation of women on details): In sexual assault offense cases in the Army and Air Force, the representation of women detailed to courts-martial was greater than their overall representation in their respective Services. In the Marine Corps, the representation of women detailed to courts-martial was slightly higher than their overall representation in the Service. In the Navy, the representation of women detailed to courts-martial was lower than their representation in the Service. The differences in all Services other than the Marine Corps are statistically significant.

• In the Army, women constituted 21.2% of details, compared with their overall Service representation of 15.6%. This difference is statistically significant.
• In the Navy, women constituted 16.0% of details, which was lower than their overall Service representation of 20.7%. This difference is statistically significant.
• In the Marine Corps, women constituted 10.5% of details, which was greater than their overall Service representation of 9.4%. This difference is not statistically significant.
• In the Air Force, women constituted 31.0% of details, compared with their Service representation of 21.5%. The difference is statistically significant.

Finding 11 (on rate of impanelment for women): In sexual assault offense cases in all the Services, women were impaneled at lower rates than men; these differences are statistically significant in all the Services.

• In the Army, women were impaneled at a rate of 37.8%; men, at 51.6%. This difference is statistically significant.
• In the Navy, women were impaneled at a rate of 26.5%; men, at 49.9%. This difference is statistically significant.
• In the Marine Corps, women were impaneled at a rate of 29.9%; men, at 48.7%. This difference is statistically significant.
• In the Air Force, women were impaneled at a rate of 33.1%; men, at 48.1%. This difference is statistically significant.

Finding 12 (on representation of women on panels): In sexual assault offense cases, the representation of women on panels in the Army and Air Force was greater than their overall Service representation. In both the Navy and the Marine Corps, the representation of women on panels was less than their representation in their respective Services; in the Navy, this difference is statistically significant.

• In the Army, the representation of women on panels was 16.4% while their overall representation was 15.6%. This difference is not statistically significant.
• For the Navy, the representation of women on panels was 9.2% while their overall representation was 20.7%. This difference is statistically significant.
• In the Marine Corps, the representation of women on panels was 6.7% while their overall representation was 9.4%. This difference is not statistically significant.
• In the Air Force, the representation of women on panels was 23.6% while their overall representation was 21.5%. This difference is not statistically significant.

Finding 13 (on use of challenges for members not impaneled): In sexual assault offense cases in the Army, Air Force, and Navy, men and women were excused because of challenges for cause in similar percentages; in the Marine Corps, a higher percentage of women were excused than men because of challenges for cause. Across the Services, men and women were excused because of peremptory challenges in similar percentages.

• In the Army, 65.6% of women were excused because of challenges for cause, the same percentage as men. 17.8% of women were excused because of peremptory challenges, compared with 17.3% of men. These differences are not statistically significant.
• In the Navy, 61.7% of women were excused because of challenges for cause, compared with 61.9% of men. 13.8% of women were excused because of peremptory challenges, compared with 16.7% of men. These differences are not statistically significant.
• In the Marine Corps, 76.6% of women were excused because of challenges for cause, compared with 54.1% of men. 10.6% of women were excused because of peremptory challenges, compared with 17.3% of men. These differences approach but do not reach statistical significance. The small numbers of female Service members means that the tests of statistical significance may not be reliable.
• In the Air Force, 59.4% of women were excused because of challenges for cause, compared with 55.8% of men. 18.8% of women were excused because of peremptory challenges, compared with 16.7% of men. These differences are not statistically significant.

Finding 14 (on patterns of results): In all the Services, the patterns of results are the same for gender (1) when the analysis grouped all individuals together and (2) when the analysis examined the specific details and panels to which individuals were assigned.

Recommendation 69 (on future study): The Department of Defense should conduct a comprehensive study within the next five years, using the same methodology as the DAC-IPAD’s, to assess the gender of panel members detailed and impaneled on all courts-martial. The Services should provide the gender for all Service members included in that study.