President Trump signed the National Defense Authorization Act for FY18, Pub. L. No. 115-91, last week. The legislation includes nine sections with military justice provisions.
A bookmarked PDF of the military justice provisions is available here.
Here are the most significant provisions (based on my initial review), in the order in which they appear in the legislation:
Section 531(a) amends Article 6b(e)(3) to add a reference to CAAF review of an alleged victim’s Article 6b petition, giving CAAF jurisdiction over such petitions and thereby reversing the court’s decision in Randolph v. HV and United States, 76 M.J. 27 (C.A.A.F. Feb. 2, 2017) (CAAFlog case page).
Section 531(n)(1) allows the President to prescribe regulations applying the changes in the Military Justice Act of 2016 to offenses alleged to have been committed before the effective date of the changes. Section 531(o), however, provides that sentencing in cases involving pre- and post-MJA cases will use the pre-MJA sentencing rules unless the accused requests post-MJA sentencing (and presumably this could occur as part of a plea agreement).
Section 531(n)(2) makes the new 10-year statute of limitations of child abuse offenses in Section 5225 of the MJA (amending Article 43(b)(2)(A)) retroactive to the date of enactment of the MJA (December 22, 2016), regardless of the effective date of the rest of the MJA.
Section 532 authorizes the use of “civilian employees . . . experienced in the prosecution or defense of complex criminal cases to provide assistance to, and consult with, less experienced judge advocates throughout the court-martial process,” thereby allowing the services to outsource a core competency of the judge advocate communities.
Section 533 creates a new Article 117a prohibiting the wrongful broadcast or distribution of intimate visual images. The new Article is similar to the provision enacted by the House in May (discussed here), avoids the serious flaws in Article 1168, U.S. Navy Regulations (analyzed here), and includes as an element of the offense that the accused’s “conduct, under the circumstances, had a reasonably direct and palpable connection to a military mission or military environment.”
Section 1081(c) makes technical and clerical corrections to the MJA. Among these, Section 1081(c)(1)(H) corrects the new Article 53a(d) to make plea agreements binding on members (an error I noted in my public comment on the proposed MCM changes implementing the Military Justice Act of 2016).