Sec. 1702. Revision of Article 32 and Article 60, Uniform Code of Military Justice
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Section 832 of title 10, United States Code (article 32 of the Uniform Code of Military Justice), is amended to read as follows: No charge or specification may be referred to a general court-martial for trial until completion of a preliminary hearing. The purpose of the preliminary hearing shall be limited to the following: Determining whether there is probable cause to believe an offense has been committed and the accused committed the offense. Determining whether the convening authority has court-martial jurisdiction over the offense and the accused. Considering the form of charges. Recommending the disposition that should be made of the case. A preliminary hearing under subsection
(a)shall be conducted by an impartial judge advocate certified under section 827(b) of this title (article 27(b)) whenever practicable or, in exceptional circumstances in which the interests of justice warrant, by an impartial hearing officer who is not a judge advocate. If the hearing officer is not a judge advocate, a judge advocate certified under section 827(b) of this title (article 27(b)) shall be available to provide legal advice to the hearing officer. Whenever practicable, when the judge advocate or other hearing officer is detailed to conduct the preliminary hearing, the officer shall be equal to or senior in grade to military counsel detailed to represent the accused or the Government at the preliminary hearing. After conducting a preliminary hearing under subsection (a), the judge advocate or other officer conducting the preliminary hearing shall prepare a report that addresses the matters specified in subsections (a)(2) and (f). The accused shall be advised of the charges against the accused and of the accused’s right to be represented by counsel at the preliminary hearing under subsection (a). The accused has the right to be represented at the preliminary hearing as provided in section 838 of this title (article 38) and in regulations prescribed under that section. The accused may cross-examine witnesses who testify at the preliminary hearing and present additional evidence in defense and mitigation, relevant to the limited purposes of the hearing, as provided for in paragraph
(4)and subsection (a)(2). A victim may not be required to testify at the preliminary hearing. A victim who declines to testify shall be deemed to be not available for purposes of the preliminary hearing. The presentation of evidence and examination (including cross-examination) of witnesses at a preliminary hearing shall be limited to the matters relevant to the limited purposes of the hearing, as provided in subsection (a)(2). A preliminary hearing under subsection
(a)shall be recorded by a suitable recording device. The victim may request the recording and shall have access to the recording as prescribed by the Manual for Courts-Martial. If evidence adduced in a preliminary hearing under subsection
(a)indicates that the accused committed an uncharged offense, the hearing officer may consider the subject matter of that offense without the accused having first been charged with the offense if the accused— is present at the preliminary hearing; is informed of the nature of each uncharged offense considered; and is afforded the opportunities for representation, cross-examination, and presentation consistent with subsection (d). The requirements of this section are binding on all persons administering this chapter, but failure to follow the requirements does not constitute jurisdictional error. In this section, the term victim means a person who— is alleged to have suffered a direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification being considered; and is named in one of the specifications. . The table of sections at the beginning of subchapter VI of chapter 47 of such title is amended by striking the item relating to section 832 and inserting the following new item: 832. Art 32. Preliminary hearing. . Subsection
(c)of section 860 of title 10, United States Code (article 60 of the Uniform Code of Military Justice), is amended to read as follows: Under regulations of the Secretary concerned, a commissioned officer commanding for the time being, a successor in command, or any person exercising general court-martial jurisdiction may act under this section in place of the convening authority. Action on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section. Subject to regulations of the Secretary concerned, such action may be taken only after consideration of any matters submitted by the accused under subsection
(b)or after the time for submitting such matters expires, whichever is earlier. Except as provided in paragraph (4), the convening authority or another person authorized to act under this section may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part. If the convening authority or another person authorized to act under this section acts to disapprove, commute, or suspend, in whole or in part, the sentence of the court-martial for an offense (other than a qualifying offense), the convening authority or other person shall provide, at that same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of the trial and action thereon. Action on the findings of a court-martial by the convening authority or by another person authorized to act under this section is not required. If the convening authority or another person authorized to act under this section acts on the findings of a court-martial, the convening authority or other person— may not dismiss any charge or specification, other than a charge or specification for a qualifying offense, by setting aside a finding of guilty thereto; or may not change a finding of guilty to a charge or specification, other than a charge or specification for a qualifying offense, to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge or specification. If the convening authority or another person authorized to act under this section acts on the findings to dismiss or change any charge or specification for an offense (other than a qualifying offense), the convening authority or other person shall provide, at that same time, a written explanation of the reasons for such action. The written explanation shall be made a part of the record of the trial and action thereon. In this subsection, the term qualifying offense means, except in the case of an offense excluded pursuant to clause (ii), an offense under this chapter for which— the maximum sentence of confinement that may be adjudged does not exceed two years; and the sentence adjudged does not include dismissal, a dishonorable or bad-conduct discharge, or confinement for more than six months. Such term does not include any of the following: An offense under subsection
(a)or
(b)of section 920 of this title (article 120). An offense under section 920b or 925 of this title (articles 120b and 125). Such other offenses as the Secretary of Defense may specify by regulation. Except as provided in subparagraph
(B)or (C), the convening authority or another person authorized to act under this section may not disapprove, commute, or suspend in whole or in part an adjudged sentence of confinement for more than six months or a sentence of dismissal, dishonorable discharge, or bad conduct discharge. Upon the recommendation of the trial counsel, in recognition of the substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, the convening authority or another person authorized to act under this section shall have the authority to disapprove, commute, or suspend the adjudged sentence in whole or in part, even with respect to an offense for which a mandatory minimum sentence exists. If a pre-trial agreement has been entered into by the convening authority and the accused, as authorized by Rule for Courts–Martial 705, the convening authority or another person authorized to act under this section shall have the authority to approve, disapprove, commute, or suspend a sentence in whole or in part pursuant to the terms of the pre-trial agreement, subject to the following limitations for convictions of offenses that involve a mandatory minimum sentence: If a mandatory minimum sentence of a dishonorable discharge applies to an offense for which the accused has been convicted, the convening authority or another person authorized to act under this section may commute the dishonorable discharge to a bad conduct discharge pursuant to the terms of the pre-trial agreement. Except as provided in clause (i), if a mandatory minimum sentence applies to an offense for which the accused has been convicted, the convening authority or another person authorized to act under this section may not disapprove, otherwise commute, or suspend the mandatory minimum sentence in whole or in part, unless authorized to do so under subparagraph (B). . Section 860 of title 10, United States Code (article 60 of the Uniform Code of Military Justice), is further amended— in subsection (b)(2), by striking or other person taking action under this section and inserting or another person authorized to act under this section ; in subsection (d), by striking or other person taking action under this section the first place it appears and inserting or another person authorized to act under this section ; in subsection (e)(1), by striking or other person taking action under this section, in his sole discretion, and inserting or another person authorized to act under this section ; and in subsection (e)(3), by striking or other person taking action under this section and inserting or another person authorized to act under this section . Section 871(d) of such title (article 71(d) of the Uniform Code of Military Justice) is amended by adding at the end the following new sentence: Paragraphs
(2)and
(4)of subsection
(c)of section 860 of this title (article 60) shall apply to any decision by the convening authority or another person authorized to act under this section to suspend the execution of any sentence or part thereof under this subsection. . Section 802(d)(1)(A) of such title (article 2(d)(1)(A) of the Uniform Code of Military Justice) is amended by striking investigation under section 832 and inserting a preliminary hearing under section 832 . Section 834(a)(2) of such title (article 34(a)(2) of the Uniform Code of Military Justice) is amended by striking investigation under section 832 of this title (article 32) (if there is such a report) and inserting a preliminary hearing under section 832 of this title (article 32) . Section 838(b)(1) of such title (article 38(b)(1) of the Uniform Code of Military Justice) is amended by striking an investigation under section 832 and inserting a preliminary hearing under section 832 . Section 847(a)(1) of such title (article 47(a)(1) of the Uniform Code of Military Justice) is amended by striking an investigation pursuant to section 832(b) of this title (article 32(b)) and inserting a preliminary hearing pursuant to section 832 of this title (article 32) . Section 948b(d)(1)(C) of such title is amended by striking pretrial investigation and inserting preliminary hearing . The amendments made by subsections
(a)and (c)(3) shall take effect one year after the date of the enactment of this Act and shall apply with respect to offenses committed under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), on or after that effective date. The amendments made by subsection
(b)and paragraphs
(1)and
(2)of subsection
(c)shall take effect 180 days after the date of the enactment of this Act and shall apply with respect to offenses committed under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), on or after that effective date.