New changes to the UCMJ:

Article 60

Like Article 32 changes, modifications to Article 60 are to be phased in over the course of 12 months. Article 60 involves pretrial agreements and actions by the convening authority in modifying or setting aside findings of a case or reducing sentencing. A convening authority could do that in the past, and some did, though rarely.

Changes to Article 60 were influenced last year by a case involving Air Force Lt. Col. James Wilkerson, a former inspector general convicted of aggravated sexual assault, Kiel said. The convening authority, Air Force Lt. Gen. Craig Franklin, overturned the findings of guilt.

"That got Congress stirred up," Kiel said.

In the new law, legislators said the convening authority can no longer adjust any findings of guilt for felony offenses where the sentence is longer than six months or contains a discharge. They cannot change findings for any sex crime, irrespective of sentencing time.

One way a commander still can modify a sentence is, "if the trial counsel comes forward and says, 'This particular accused was very helpful in securing evidence or cooperating with the government in prosecuting someone who was accused of committing an offense under the UCMJ.' That is a trigger for the convening authority to be able to modify a sentence," Kiel said.

The other way a convening authority can modify a sentence, even involving rape and sexual assault, is if a pretrial agreement is in place, he said, meaning that the case could close, but the pretrial agreement would still take effect.

Congress realized that Article 60 was still needed to continue the option for pretrial agreements, Kiel said. Had Article 60 been done away with altogether, he added, that "would have likely meant all courts-martial would have gone to full contest, and that would have bottlenecked the entire process."

Voiding Article 60 also would have meant that all alleged victims of sexual assault likely would have to testify.

"Sometimes, victims supported the pretrial agreement, supported the potential sentence and supported the fact that they didn't have to testify -- when it was in their best individual interest," Kiel said.

Other changes to courts-martial practice were made.

Prior to the new law, the convening authority could consider the military character of the accused in considering how to dispose of a case, Kiel said. Congress decided that should have no bearing on whether or not the accused has committed a sexual assault or other type of felony.

Also, he said, previous to new law, "sometimes the [staff judge advocate] would say, 'Take the case to a general court-martial,' and the convening authority would disagree and say, 'I'm not going forward.'" Now, he said, "if the convening authority disagrees, the case has to go to the secretary of the service concerned, [who] would have to decide whether to go forward or not."

In the case of an alleged rape or sexual assault in which the staff judge advocate and the convening authority decide not to go forward because of a lack of evidence or for any other reason, that case has to go up to the next-highest general court-martial convening authority for an independent review, Kiel said.

So if the case occurred at the division level in the Army, for example, and a decision were made at that level not to go forward, then the division would need to take the victim's statements, its own statements for declining the case, and forward them and the entire investigative file to the next level up -- in this case, the corps.

At the corps level, the staff judge advocate and the corps commander would then review the file, look at the evidence and make a determination whether or not to go forward, Kiel explained.

If it's decided to move forward the case would be referred at the corps level instead of sending it back down to the division, he added. This, he explained, avoids unlawful command influence on the case's outcome.

Articles 120 and 125

The UCMJ's Articles 120 and 125 now have mandatory minimum punishments: dishonorable discharge for enlisted service members and dismissal for officers, Kiel said. Article 120 deals with rape and sexual assault upon adults or children and other sex crimes, and Article 125 deals with forcible sodomy. In addition, the accused now must appear before a general court-martial with no opportunity to be tried at a summary or special court-martial, Kiel said.

A summary court-martial is for relatively minor misconduct, and a special court-martial is for an intermediate-level offense.

Furthermore, Congress highly encouraged the services not to dispose of sexual assault cases with adverse administrative action or an Article 15, which involves nonjudicial punishment usually reserved for minor disciplinary offenses, Kiel said.

Rather, Kiel said, Congress desires those cases to be tried at a general court-martial and has mandated that all sexual assault and rape cases be tried only by general court-martial.



Prior to the fiscal 2014 National Defense Authorization Act, there was a five-year statute of limitations on rape and sexual assault on adults and children under Article 120 cases. Now, there's no statute of limitations, he said.

Congress repealed the offense of consensual sodomy under Article 125 in keeping with previous Supreme Court precedent, Kiel said, and also barred anyone who has been convicted of rape, sexual assault, incest or forcible sodomy under state or federal law from enlisting or being commissioned into military service.