In the final portion of my three-part series, I will address the JSC role in amending the UCMJ, or other relevant statutes. The process is similar to preparing an Executive Order (EO) except that there is no public notice requirement. I presume this is because the JSC product is merely a proposal, vetted by the Services and DoD, and forwarded to the House and Senate Armed Services Committees (HASC and SASC), where the proposal will receive its full public notice. I will talk about the UCMJ process, and at the end about the new 2012 MCM that will be shipped TOMORROW to most locations.
In January each year, the JSC solicits proposals to update the MCM, as discussed above. Some of those proposals require amendment of the UCMJ. It is safe to say that proposals to amend the UCMJ are submitted by various people throughout any given year, and each proposal is vetted by the JSC, as explained in part two of this article. Once the JSC has researched and voted to approve a statutory amendment, the JSC provides the proposal to DoD General Counsel.
JSC proposals to amend the UCMJ are generally requested in January or February each year, to be incorporated in that year’s National Defense Authorization Act (NDAA). After the proposal has been submitted, the JSC has little role in the Congressional process of hammering out the final NDAA. In fact, many changes occur during “conference” when the HASC and SASC sit together to finalize the NDAA, and it is during these times when some minor edits are sometimes made to JSC proposed language. There is a rumor (un-researched by me) that it was one of these conferences that resulted in the 2007 Article 120 burden-shift.
Sometimes the HASC or SASC will propose a UCMJ amendment on their own. This happened last year when there was a proposal to create a statutory “victim advocate-victim privilege.” It appeared as though the statutory rule of evidence had legs and was going to be added the FY12 NDAA, which would have created an anomaly in our rules. All rules of evidence would be promulgated by the President, except for the victim advocate privilege. Updating a statutorily created rule of evidence would be exceptionally difficult – it would take an act of Congress, literally. In an effort to demonstrate to Congress DoD’s resolve to better protect victims, and to prevent the first ever statutorily created rule of evidence, MRE 514 was quickly added to the pending 2011 EO (without public comment, a topic we can discuss more in depth later when Spilman brings it up again…[thx for delaying your question last time].
This happened again this year when there was a proposal to amend the UCMJ to withhold all sexual offenses to the GCMCA level. You can imagine the repercussions from such an amendment, which is why DoD stepped in and created a withholding policy to the SPCMCA level.
As a procedural matter, UCMJ amendments can come from any person or entity at any time, and it is up to the HASC and SASC to decide whether to add the proposed amendment to the NDAA. Like any other bill, amendments are added, dropped, and shaped along the way.
Finally, the JSC plays a minor role in shaping UCMJ amendments by responding to Congressional members and staffers, either directly or through legislative liaisons. The JSC has appeared twice before members of the HASC in the last year, and individual JSC members have responded to queries from the Hill for various reasons, but mostly related to sexual assault initiatives.
I have written about the JSC’s purpose and how it updates the MCM and the UCMJ. My comments are my own and are based on my understanding of DODD 5500.17. I am happy to write more about the JSC, and I encourage questions, and even snarky comments – speaking of which…
The 2012 MCM will be shipped tomorrow to most locations. There are subsequent ship dates, but all will be sent by the end of July. Many of you will have MCMs in your hands by the end of the month. For the Army, the bulk of the MCMs go to a warehouse in St. Louis and are subsequently shipped to the various installations (so it may take a little longer to arrive). I am already beginning the 2013 update; so I request your comments and feedback. Those of you who get the spiral, what do you think? What about the paper, and the material used for the cover (it’s plastic). Also, please send any corrections. My email address is: c.kennebeck at AKO. Thanks. C