Back in August, the Secretary of the Navy (then Richard Spencer, who was fired in November for lack of candor) ordered a comprehensive review of the Navy and Marine Corps legal communities.
That review is complete and a 274-page report is available here.
The report makes 99 recommendations, which are reproduced after the jump.
7.1 SUMMARY OF NAVY RECOMMENDATIONS
1. Issue governing principles for the JAG Corps that establish and emphasize the judge advocate’s status as both Naval Officer and attorney. Reinforce these principles through accessions training, each career education and training opportunity, prior to milestone assignments and promotions and generally throughout a judge advocate’s career.
2. Expand the portion of JAG officer accessions from the Law Education Program (LEP) and In-Service Procurement Program (IPP) to both expand the size of the JAG Corps as required and develop an expanded cadre of judge advocates with Fleet perspective.
3. Determine resources necessary to provide in-residence professional military education, in addition to advanced legal education, and deliver a plan to execute accordingly.
4. Leverage modern training techniques to include practical application through simulations and exercises for the purpose of developing skills, maintaining proficiency, as well as team building for both generalist and litigation personnel.
5. Sustain efforts in national security law, command advice, administrative law, legal assistance and claims that support naval operations and Sailors. Effectively communicate the need for, and value of, these missions to the entire JAG Corps organization.
6. Develop a formal, repeatable and continuous process to assess the effectiveness of all aspects of the Navy JAG Corps’ legal practice, to include OJAG headquarters, staff judge advocates, Naval Justice School and the judiciary, and codify that process in a formal instruction. This self-assessment program must be founded on clear identification of Navy requirements, determination of whether the JAG Corps is meeting those requirements, identification of standards used to measure success, and employment of effective processes to share lessons across the legal community.
Coordinate with the Navy Inspector General to review the Commanding General Inspection Program (CGIP) administered by the Inspector General of the Marine Corps (IGMC) for the functional area of Legal Administration and apply it to the Navy JAG Corps.
7. Improve the JAG Corps Professional Responsibility program to provide regular and proactive dissemination of lessons learned, including the use of case studies of recent and selected past disciplinary actions and “near misses.” Consistent with the Privacy Act, provide information on matters leading to corrective actions and the publication of JAG and Rules Counsel ethics opinions. Coordinate with Naval Education and Training Command to incorporate lessons into judge advocate pipeline training as well as annual Professional Responsibility training for the JAG Corps.
8. Collaborate with the American Bar Association, State Bars, and the Armed Services to identify best practices for professional responsibility rules and processes.
9. Establish a formal process to consult recipients of OJAG support, to include external agencies such as those sections of the Department of Justice that represent the DON in litigation for matters under the cognizance of JAG, to ensure continuous evaluation of OJAG performance.
10. Provide the Secretary and Service Chiefs clear guidance regarding appropriate roles and responsibilities of JAG and DJAG in providing information and advice to DON principal officials.
11. Provide the results of the Center for Naval Analyses (CNA) study to the Secretary and Service Chiefs along with a detailed recommendation on organizational changes to improve lines of authority, responsibility and accountability.
12. Pending completion of the CNA report, consider creating and resourcing an active duty Navy Flag billet to independently serve as CNLSC.
13. Review Navy AJAG billets to determine whether the breadth and scope of these senior JAG Corps leadership positions warrant assignment of active duty RDMLs (O-7). If warranted, develop a legislative proposal to amend 10 U.S.C. § 8089 and
create permanent active Flag AJAG billets. In the alternative, support reinstatement of retired pay authority for AJAGs who retire at the rank of Rear Admiral (Lower Half) or Brigadier General.
14. Review the existing relationships between Chief of Staff-RLSO and TCAP, as well as Chief of Staff-DSO and DCAP, to ensure that they are properly aligned and focused on delivering efficient and effective legal services to the Fleet through their RLSO and DSO organizations.
15. Request CNA evaluate how judge advocates assigned to the SECNAV and CNO personal staffs, and the legal opinions and advice they provide, are overseen to ensure that the JAG, the SJA to CMC, and General Counsel remain the final approval authorities on advice provided to the DON’s most senior leaders.
16. Evaluate the Marine Corps Judge Advocate Board process (MCJAB) and propose a similar Navy organization.
17. Assess overall NLSC alignment with Navy and Fleet priorities and issue a NLSC strategy document that redirects and reorients NLSC commands in line with governing principles established by recommendation 4.2.1.a.
18. Consider an organizational change to reestablish Trial Service Offices (TSOs) in order to achieve the single mission focus of providing court-martial prosecution services. In the planning process, address the resulting organizational and resourcing effects on ashore SJA offices, legal services to Sailors and their families, Victims’ Legal Counsel, the First Tour Judge Advocate program, and impact to command opportunities.
19. Coordinate the reestablishment of TSOs with alignment of Region SJA billets to the applicable Region Commanders, and alignment of other SJA billets to their respective commanders.
20. Develop specific professional qualifications, to include minimum experience, and training requirements for Region SJAs, given their role in the Navy’s general courts- martial practice.
21. Review procedures for evaluating defense counsel support requests to emphasize the need for affording both defense and government counsel adequate access to resources as well as to ensure compliance with the Military Justice Act of 2016.
7.1.3 Education and Training
22. Formalize a relationship between Commander, Naval Education and Training Command and JAG to assess, develop, and deliver an improved career continuum legal training for line officers. Review requirements for career milestone-based legal training for officers and senior enlisted leaders, focused on the legal requirements and challenges associated with incremental leadership responsibilities.
23. Develop and deliver through operational chains of command standardized legal training for commanders at all echelons that provides guidance on use of the military justice system, administrative accountability measures, and compliance with standards of conduct. Commanders serving as Convening Authorities require scenario- based training on military justice, ethics, and UCI, which incorporates lessons learned, and ongoing assessments of implementation of the Military Justice Act of 2016.
24. Develop standardized decision aids for legal matters that provide commanders flow charts of their basic legal options and decision points regarding personnel accountability, disciplinary actions, and investigative procedures. Decision aids should include administrative options, to include Show Cause Proceedings (Boards of Inquiry) and their potential impact on follow-on administrative or military justice proceedings. For example, “if a conviction is obtained at a court-martial and does not include a dismissal, subsequent convening of a board of inquiry has the following advantages and disadvantages…” These aids should be tailored to support commanders at each echelon.
25. Revise the Manual of the Judge Advocate General to clarify, consistent with case disposition guidance, that general court-martial convening authorities are not required to forward cases requiring trial by general court-martial to Navy Region Commanders, but, in their discretion, may convene general courts-martial locally, as required, to maintain good order and discipline within their commands.
26. Align JAG Corps community management practices to meet Navy officer community management practices. This includes developing a strategic plan accounting for current and future Fleet demands and formal definition of career paths, milestones, education, training, and professional development. Navy experience has proven this requires a dedicated, integrated community management team, not a collateral duty responsibility. Establishing formal community management practices is not to interfere with the JAG’s authority under 10 U.S.C. § 806 to direct the assignment (detail) of judge advocates. Rather, it is to establish a Fleet-focused, strategic JAG Corps human resources program.
27. Formally define career and competency expectations by paygrade and communicate those expectations to the JAG Corps in a formal policy document.
28. Review officer subspecialty code structures and review all billets that require or should require a subspecialty code to ensure proper identification of officers’ experience and use of that experience.
29. Ensure to the maximum extent practicable that all judge advocates receive required milestone training prior to or en route to billet assignment, rather than on an ad hoc basis.
30. Explore, in coordination with the Army and Air Force, the feasibility of developing a VLC certification course at NJS to ensure greater flexibility in VLC certification and assignment.
31. Once NLSC organizational structure reviews are complete, conduct a comprehensive JAG Corps assessment of judge advocate and Legalman inventory and billet distribution requirements based on current and anticipated Fleet requirements. This assessment will support definition of career tracks, training, and education requirements, and milestones necessary to inform both numbers and skill sets required.
32. Review current judge advocate accession sources and identify where direct recruitment and use of new “DOPMA relief” authority to commission experienced attorneys with specific skills needed by the Navy might be more effective and efficient.
33. Evaluate execution of the first tour judge advocate program, and the associated professional development officer and professional development standards programs, based on formal measures of effectiveness, balancing Fleet requirements for legal services and JAG Corps professional development requirements.
34. After determining the appropriate future structure of NLSC, determine the necessary manning construct for NLSC field offices, to include paralegal, information technology, administrative, security, and other support billets required to optimize delivery of Fleet legal services.
35. Prioritize any future review of NLSC field offices, consistent with Fleet requirements.
36. Review the development, distribution, and enforcement of institutional standards regarding Legalmen training. Publish clear expectations on division of attorney and paralegal roles and responsibilities. Drive cultural change to require effective judge advocate and Legalman teamwork in accordance with published standards.
37. Review retention incentives, to include Judge Advocate Continuation Pay, to ensure that necessary incentives are in place, of sufficient financial value and properly structured to specifically address student loan debt and senior officer retention challenges, ensuring retention of the officers best qualified. Consider payment of licensing and associated continuing education fees and adoption of a law school education debt subsidy program, similar to Marine Corps efforts.
38. Review the issue of direct accessions of civilian paralegals to the Legalman rating, as well as targeted incentives to address current recruiting and retention challenges. Examine options to open the years of service window for rating conversion of prior serving Sailors to the Legalman rating.
39. Fund Disability Evaluation System Counsel Program attorney billets to ensure continued support of Sailors and Marines in the disability evaluation process.
40. Optimize the inventory and assignment of Military Justice Litigation Career Track practitioners to meet Fleet court-martial requirements, carefully considering the imperative of maintaining a fully capable military justice litigation community and efficiencies to be gained through proper military and civilian paralegal utilization.
41. Identify career paths that return senior officer MJLCT litigators to the courtroom as trial and defense counsel, and detail them accordingly to mentor and lead junior counsel from the front.
42. Consider making command eligibility or equivalent assignment a milestone requirement for all qualified MJLCT litigators to ensure an adequate cadre of senior officers are available for leadership roles within NLSC and other equivalent military justice positions.
43. Consider detailing only senior MJLCT qualified officers to NLSC command, OIC and executive officer billets.
44. Forward reports prepared in compliance with 10 U.S.C. § 946a to the Secretary and Service Chiefs to ensure senior leaders are informed of measures implemented to ensure the ability of judge advocates to participate competently as trial and defense counsel, to preside as military judges, and to perform the duties of victims’ legal counsel.
45. In coordination with Marine Corps, assess the feasibility of longer or more repeat tours for military judges.
46. Explore offering qualified retired Commanders (O-5) and Captains (O-6) the opportunity to serve as military judges under an “out and back” or “up and stay” program.
47. Assess requirements to assign law clerks within Navy-Marine Corps Trial Judiciary Circuits in support of trial-level military judges. Report the results of this assessment to JAG for resourcing consideration, consistent with overall Fleet requirements.
48. Resource the expedited acquisition of a modern, secure military justice data collection and case management system that is compliant with statutory and DoD requirements. This is essential to improve the efficiency of the DON military justice system, mitigate the risks of legal error caused by poor case management, facilitate more accurate and informative responses to internal and external requests for data, and enable effective trend analysis.
49. Expedite appropriate waivers from NMCI and other government networks (such as ONE-NET) policies, or develop alternatives to the same, to implement modern court-reporting technologies and software to include identification and resourcing of the court reporters and IT support personnel necessary to maintain these systems. Establish commercial “white lines” (i.e., non-secure) in courtrooms to facilitate the use of artificial intelligence assisted transcription. Provide an assessment of any resource challenges or delays as part of the annual military justice report submitted to the Secretary and Service Chiefs.
50. Evaluate current Navy courtroom facilities and security protocols compared to federal civilian courtroom facilities, security infrastructure, and policies in consultation with the U.S. Marshals Service and Naval Criminal Investigative Service. Ensure sufficient Master-at-Arms or other properly trained Navy security forces are provided for court-martial proceedings.
7.1.5 Unlawful Command Influence
51. Provide all Flag Officers, commanders, and judge advocates clear, current, and consistent guidance and training on what constitutes unlawful command influence. The training must proactively incorporate the important lessons to be learned from recent and selected past case law, particularly emphasizing convening authorities’ independence. At the same time, commanders must be encouraged by this training to exert lawful influence over their commands in the interest of maintaining good order and discipline.
7.2 SUMMARY OF MARINE CORPS RECOMMENDATIONS
1. Ensure members of the Marine Corps uniformed legal community attain legal expertise and simultaneously develop as well-rounded Marine Air-Ground Task Force officers.
2. Submit a legislative proposal to establish a direct statutory relationship between the Staff Judge Advocate to the Commandant of the Marine Corps and the Secretary of the Navy, consistent with current regulation and past recommendations.
3. Ensure, enforce, promulgate, and communicate to Marine Corps stakeholders the regulatory roles and responsibilities of the Staff Judge Advocate to the Commandant of the Marine Corps and the Counsel for the Commandant.
4. Consider renaming the billet “Counsel for the Commandant” to one that more accurately defines the billet roles and responsibilities as an Office of General Counsel attorney who reports to the Department of the Navy General Counsel.
5. Increase accession of Marine judge advocates, until such time as the Captain (O-3) community is appropriately staffed.
6. Fund continuation pay for judge advocates within the Department of the Navy, with amounts and structure designed to stem current negative retention trends.
7. Fund an enduring Law School Education Debt Subsidy program as a recruiting, retention, and talent management tool.
8. Reimburse judge advocates for their continuing annual licensing fee requirements.
9. Ensure continuous communication with the Marine uniformed legal community to facilitate transparency and better understanding of the Marine Corps assignments process.
10. Do not consider Marine judge advocate Captains (O-3) executing their first set of permanent change of station orders for the Commandant’s Career-Level Education Board or B-billet assignment.
11. Develop a reporting mechanism to track when a judge advocate serves outside the military occupational specialty in support of local mission requirements.
12. Evaluate making judge advocate (4402) Colonels ineligible for selection to O- 6 command.
13. Ensure a judge advocate (4402) General Officer participates in every Colonel (O-6) selection board to explain unique legal career paths to help select the best and fully qualified judge advocate Colonels (O-6).
14. Provide precept language for every Colonel (O-6) selection board to explain the unique legal career paths to help select the best and fully qualified judge advocate (4402) Colonels (O-6) when a judge advocate General Officer is not available.
7.2.3 Education and Training
15. Establish annual formalized professional responsibility training for judge advocates, and during Article 6, Uniform Code of Military Justice visits, reinforce the importance of mentorship and supervision.
16. Collaborate with the American Bar Association, State Bars, and the Armed Services to identify best practices for professional responsibility rules and processes.
17. Develop resident or online courses, by billet and grade, to refresh the skills of practitioners returning from assignments outside the Marine Corps uniformed legal community.
18. Leverage modern training techniques to include practical application through simulations and exercises for the purpose of developing skills, maintaining proficiency, as well as team building for both generalist and litigation personnel.
19. Do not assign uniformed judge advocates to Office of General Counsel (Counsel for the Commandant (CL)) offices; transition CL billets formerly held by uniformed judge advocates to civilian positions.
20. Realign judge advocate structure from Office of General Counsel (Counsel for the Commandant) to support Marine Corps uniformed legal requirements.
21. Shift educational resources for advanced law degrees that currently support Office of General Counsel requirements to meet uniformed legal requirements in military justice, cyber, and international law.
22. Determine the feasibility of developing a victims’ legal counsel certification course at Naval Justice School offered at different times than the Army and Air Force courses to ensure greater flexibility in victims’ legal counsel certification and assignment.
23. Develop mechanisms to capture and track legal services specialist proficiency at every pay grade that are specifically linked to Training and Readiness Manual requirements.
24. Reconcile the Legal Services Specialist Roadmap with formal training opportunities and Training and Readiness Manual requirements.
25. Identify root causes for lack of participation in further education, such as the Staff Noncommissioned Officer Degree Completion Program, and update the program to address those issues.
26. Adjust current Marine Corps legal billets to support cyber, intelligence, and information operations, per the Commandant’s Planning Guidance.
27. Review the security clearance requirements for all judge advocate billets, and mandate Master of Criminal Law (4409) candidates apply for Sensitive Compartmented Information security clearance eligibility prior to attending an advanced law degree program, similar to the requirement for Master of International Law (4405) or Master of Cyber, Intelligence, and Information Law (4417) candidates.
28. Subject to Center for Naval Analyses (CNA) refinement, determine the appropriate structure for Headquarters, Marine Corps Judge Advocate Division.
29. Develop manpower and assignment policies to reconcile the need for experienced military judges with the institutional goal of promoting well-rounded Marine Air-Ground Task Force officers.
30. Explore offering Marine Corps Lieutenant Colonels (O-5) and Colonels (O-6) the opportunity to serve as military judges under a retire-retain program.
31. Continue the current policy of not assigning military judges leaving the judiciary to litigation billets in the same geographic location.
32. Resource a pilot program for Defense Services Organization investigators.
33. Assess the Marine Corps inventory of judge advocates with advanced degrees in criminal law (AMOS 4409), subject to validation and refinement by the Center for Naval Analyses (CNA) study.
34. Continue current processes to resource defense expert assistance in courts- martial; ensure convening authority training emphasizes the convening authority’s responsibilities to ensure equal access to evidence and witnesses per Article 46, Uniform Code of Military Justice.
35. Continue the current processes for travel and training funding to the Defense Services Organization and its regional defense services offices.
36. Add the Chief Defense Counsel to the Marine Corps Judge Advocate Board, when appropriate.
37. Further assess the staffing of the Victims’ Legal Counsel Offices at Marine Corps Base Camp Lejeune and Marine Corps Base Camp Pendleton.
38. Authorize a civilian paralegal at Marine Corps Air Station Iwakuni.
39. Hire a civilian litigation attorney advisor at Victims’ Legal Counsel Organization headquarters.
40. Determine if additional victims’ legal counsel are required in anticipation of Congress mandating the provision of victims’ legal counsel services to domestic violence victims.
41. Resource the expedited acquisition of a modern, secure military justice data collection and case management system that is compliant with statute and Department of Defense requirements. This is essential to improve the efficiency of the Department of the Navy military justice system, mitigate the risks of legal error caused by poor case management, facilitate more accurate and informative responses to internal and external requests for data, and enable effective trend analysis.
42. Expedite appropriate waivers from information technology policies, or develop alternatives to the same, to implement modern court-reporting technologies and software to include establishing commercial “white lines” (i.e., non-secure) in courtrooms to facilitate the use of artificial intelligence assisted transcription.
43. Maintain a court reporting system capable of operating forward or in austere environments; consider stenographers.
44. Resource improved courtroom security and associated infrastructure to ensure trial courtrooms meet required physical security standards; regarding state-of- the-art courtroom security requirements, consider coordinating with the U.S. Marshals Service.
7.2.5 Unlawful Command Influence
45. Deliver training on military legal matters (military justice, ethics, etc.) during every formal professional military education course using case studies.
46. Conduct annual military justice refresher training for every court-martial convening authority.
47. Enforce existing mechanisms to ensure commanders are held accountable where appropriate.
48. Provide all General Officers, commanders, and judge advocates clear, current, and consistent guidance and training on what constitutes unlawful command influence. The training must incorporate the important lessons to be learned from recent and selected past case law, particularly emphasizing convening authorities’ independence. At the same time, commanders must be encouraged by this training to exert lawful influence over their commands in the interest of maintaining good order and discipline.