DOD Authorization Act Conference Committee Report.

Thanks to CAAFLog, here is a link to the above report.

Here are the most pertinent sections affecting military justice trial practitioners.

SEC. 512. MEDICAL EXAMINATION REQUIRED BEFORE ADMINISTRATIVE SEPARATION OF MEMBERS DIAGNOSED WITH OR REASONABLY ASSERTING POST-TRAUMATIC STRESS DISORDER OR TRAUMATIC BRAIN INJURY.

1.  Prior to administrative discharge a medical examination is required.

[A] member of the armed forces under the jurisdiction of the Secretary who has been deployed overseas in support of a contingency operation during the previous 24 months, and who is diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing post-traumatic stress disorder or traumatic brain injury or who otherwise reasonably alleges, based on the service of the member while deployed, the influence of such a condition, receives a medical examination to evaluate a diagnosis of post-traumatic stress disorder or traumatic brain injury.

If so diagnosed the person:

shall not be administratively separated under conditions other than honorable until the results of the medical examination have been reviewed by appropriate authorities responsible for evaluating, reviewing, and approving the separation case, as determined by the Secretary concerned.

The Secretary then assesses whether the PTSD/TBI provides sufficient extenuation to warrant a discharge other than an OTH, when an OTH might otherwise have been warranted.

Sorry folks, there is a specific, “section do[es] not apply to courts-martial or other proceedings conducted pursuant to the Uniform Code of Military Justice.

There is a provision for expedited DRB consideration for petitioners seeking an upgrade who would have fit in the criteria above.

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SEC. 567. IMPROVED PREVENTION AND RESPONSE TO ALLEGATIONS OF SEXUAL ASSAULT INVOLVING MEMBERS OF THE ARMED FORCES.

1.  The DOD has 180 days to come up with a prevention and response plan addressing five significant issues.

2.  The DOD has 180 days to come up with a plan to improve the timely conduct of sexual assault examinations.  TriCare reimbursements will be available.  This is a good thing.  Defense counsel may not realize it, but timely SAK’s can be helpful to the defense as much as they can to the prosecution.  Remember, the presence of “injury” is not indicative of rape – consensual sexual intercourse causes vaginal trauma, use of a tampon causes vaginal trauma, use of a vibrator causes vaginal trauma.  A timely SAK may help where the complaining witnesses doesn’t have any body bruising or fingerprints, yet alleges how strongly and roughly she was held down, etc.  I do hope that someone also decides to include a required .bac draw for alcohol.  That would assist both sides.

3.  There is a requirement for data collection on MPO’s.  Included is a requirement that a complaining witness be timely notified of the ability to transfer command.  As defense counsel are aware, a portion of false complaints are motivated by a desire to get out of a command.

4.  The Comptroller General is tasked to ensure sufficient funding for the investigation and prosecution of sexual assault allegations.  There are no resources anticipated to be called for, budgeted for, or encouraged for the defense of sexual assault cases. The imbalance continues — defense counsel are left to fend for themselves.  Although I suppose someone will argue that (a)(3)’s general requirement for “training programs for judge advocates,” might cover it.  Personally I doubt that anyone is thinking about falsely accused Service-members and how they might need resources to advocate for their defense.

Sections 568 and 569 deal with ongoing responses to Domestic Violence within military families.

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Section 570 is interesting, and I’m not aware of too many prosecutions, perhaps others are (and I can imagine it’s an issue for overseas legal assistance offices, or where there are foreign spouses).  Hopefully this will not be directed solely on the service-member but will also look at it from the perspective of a service-member whose spouse goes home with the kids.

SEC. 570. REPORT ON INTERNATIONAL INTRAFAMILIAL ABDUCTION OF CHILDREN OF MEMBERS OF THE ARMED FORCES.

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Several of the following sections  after 570 deal with what I am sure are a number of ongoing issues for legal assistance attorneys, and I’ll leave that to them.

h/tip CAAFLog