Changes In Military Justice
Since its official designation on 25 January 1949, the JAG Corps has been responsible for the administration of military justice for the Department of the Air Force (DAF). The Airmen of the Military Justice and Discipline Directorate (JAJ) are at the forefront in ensuring this critical mission is met—everyday, across the globe. The past decades have seen monumental changes in the military justice system and the Directorate has been at the forefront of efforts to ensure statutory, policy, and cultural shifts in the legal landscape are met. Directorate members prosecute crimes, zealously advocate for members facing adverse actions, and provide victims legal representation. Here is a snapshot of the efforts taken within the Directorate to ensure the Department’s military justice mission continues to be met.
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Government Trial and Appellate Operations (JAJG)
On 27 December 2021, the President signed into law the Fiscal Year 2022 (FY22) National Defense Authorization Act (NDAA), which contains a series of significant updates to the military justice system. The most significant of these changes was the requirement for each of the services to stand up an Office of Special Trial Counsel (OSTC). The FY22 NDAA gave the OSTC exclusive authority over 11 categories of covered offenses, including all sexual offenses, murder, and domestic violence. The FY23 NDAA added three additional categories, including substantiated sexual harassment. As of 27 December 2023, OSTC has the exclusive authority to refer, enter into plea agreements, and withdraw and dismiss charges and specifications involving 14 covered offenses.
In light of the requirements created by the FY22 NDAA, JAJG established an OSTC transition team to build the organizational structure for the DAF OSTC. In 2022, JAJG completed the first two of a four-phase OSTC implementation plan. JAJG planned and executed the first annual Special Trial Counsel (STC) Qualification Course from 2-6 May 2022. The DAF’s course was the first STC Qualification Course within the Department of Defense (DoD). Special Victim Unit prosecutors, sister service senior litigators, appellate counsel, Department of Justice attorneys, Air Force Office of Special Investigations agents, forensic psychologists, and digital forensic experts administered the training. The STC Qualification Course led to The Judge Advocate General (TJAG)’s certification of the first cadre of DAF STC, comprised primarily of sitting JAJG Circuit Trial Counsel (CTC). Then, on 15 June 2022, JAJG established DoD’s first OSTC, an initial operational capability nested within JAJG.
The development of the Office of Special Trial Counsel (OSTC) represents one of the most significant changes in the history of the military justice system.
Summer 2022 also brought changes to JAJG’s organizational structure. JAJG realigned from geographically aligned circuits to districts aligned by DAF commands. The realignment allows for greater integration between senior prosecutors, installation legal offices, and military criminal investigative organizations (MCIOs). In addition to the geographic realignment, CTC were renamed District Trial Counsel (DTC). Special Victim Unit prosecutors were renamed STC. Circuit Directors of Trial Operations were renamed District Chief STC, responsible for supervising and leading STC and DTC within their districts.
The development of OSTC represents one of the most significant changes in the history of the military justice system. JAJG developed and hosted ongoing tabletop exercises incorporating field feedback into OSTC’s organizational structure, personnel and resourcing requirements, and standard operating procedures. These efforts ensured OSTC would be fully integrated partners in the military justice system. Through its four-phased implementation plan and JAJG’s tireless efforts, OSTC achieved full operational capability ahead of the 27 December 2023 deadline.
Trial Defense Division (JAJD)
Since inception of the Area Defense Counsel program in 1976, Air Force trial defense counsel have zealously, ethically, and professionally represented Airmen (and more recently, Guardians) in tens of thousands of adversarial and administrative proceedings.
Today the Trial Defense Division (JAJD) continues to innovate and adapt to a changing legal landscape to provide Airmen and Guardians with independent, world-class representation. Within the last decade, JAJD created a senior civilian attorney position to run the Defense Counsel Assistance Program (DCAP). DCAP has provided expert reach-back assistance to defense counsel on specific issues that arise in their representation of clients. It has also professionalized training and education opportunities available to defense counsel and defense paralegals. More recently, JAJD added eight new defense investigator (DI) positions. These DIs operate as extensions of the defense team and provide independent investigative resources, consistent with our Trial Defense Counsels’ legal and ethical obligations, to clients so they can be assured of a thorough and effective defense.
Regardless of the job titles they hold, defense counsel, paralegals and civilian employees assigned to JAJD will remain focused on what matters most: delivering the best representation possible to our clients across the Department.
Since the inception of an independent Air Force defense program, the Air Force has adapted to many changes in law and regulation governing the practice of military justice as directed by Congress and the President. This continues with the implementation of the OSTC. In 2023, JAJD transitioned from its current geographically organized circuit-operating construct, into the same district construct being utilized by the OSTC and JAJG. By making this change, JAJD leaders will be well placed to interact with their peers in OSTC who will be making disposition decisions regarding covered offenses. This will create efficiencies and additional opportunities to advocate on behalf of clients at every stage of the trial litigation process.
Regardless of the job titles they hold, defense counsel, paralegals and civilian employees assigned to JAJD will remain focused on what matters most: delivering the best representation possible to our clients across the Department. To that end, JAJD laid the groundwork to stand up a new senior defense counsel (SDC) qualification course to ensure that litigators assigned to represent Airmen and Guardians facing the most serious allegations are ready to advocate for their clients at the highest possible levels. Selection of the best qualified judge advocates to represent the interests of Airmen and Guardians remains at the forefront of JAJD’s mission of independent representation.
In 1983, The Judge Advocate General, Major General Thomas Bruton, said,
It is not the job of the defense counsel to assist or make it easy for the government to establish or present its case. To the contrary, the independent defense structure pioneered by the Air Force was in part established to enable defense counsel to freely make those many difficult and sometimes challenging decisions without fear of command interference or reprisal.
Today, the members of JAJD continue to exercise that independence to give meaning to the rights of Airmen and Guardians as protected by the Constitution, law, and regulation.
Investigations, Inquiries, and Relief (JAJI)
In September 2020, the JAG Corps stood up a new division within the Military Justice and Discipline Directorate, the Investigations, Inquiries, and Relief Division (JAJI). JAJI is divided into three separate branches: Clemency and Parole, Inspector General (IG) Investigations, and Judicial Review and Secretarial Actions. JAJI oversees a diverse portfolio that was absorbed from the Military Justice Division (JAJM), Administrative Law Division (JAA), and Clemency and Parole Division (JAJR). The JAJI portfolio includes many issues worked initially by base legal offices, from administrative actions to courts-martial-related packages. JAJI provides legal advice and assistance on issues to include Promotion Propriety Actions, Officer Discharges, Nonjudicial Punishment appeals, Resignations in Lieu of Court-Martial, Recalls to Active Duty, Senior Officer Grade Determinations, IG matters and investigations, Article 138 reviews, Clemency and Parole matters, military justice reviews under the Uniform Code of Military Justice (UCMJ), Board of Corrections for Military Records, and Secretary of the Air Force Personnel Counsel actions.
Through exceptional guidance to the field and senior leaders who review military justice and discipline-related actions, JAJI provides appropriate protections and advice to Airmen, Guardians, and the DAF-wide leadership executing the mission.
Before the stand up of JAJI, these matters were handled in three separate Headquarters Air Force-level JAG Corps offices. The 2020 JAG Corps alignment consolidated all the portfolios into one office, manned by a few highly experienced attorneys and paralegals. The alignment of these portfolios allows seamless communication between the attorneys. This ensures overlapping issues and cases are addressed at all levels of command, up to the highest level of leadership reviewing these actions.
Today, JAJI continues to ensure due process in military justice and discipline processes and related actions; the division aims to deliver superior, timely, and transparent support to the field and the Department’s most senior leaders. Through exceptional guidance to the field and senior leaders who review military justice and discipline-related actions, the division provides appropriate protections and advice to Airmen, Guardians, and the DAF-wide leadership executing the mission.
Appellate Defense Counsel Division (JAJA)
In 1950, Congress established the UCMJ and with it the Court of Military Appeals under Articles 66 and 67, UCMJ. In 1983, Congress expanded military appeals by providing for appeals via Writ of Certiorari to the Supreme Court of the United States. Ultimately, in 1994, with the maturation of military appeals courts, Congress changed the highest military appeals court name to the United States Court of Appeals for the Armed Forces and the service courts to Courts of Criminal Appeals. Since that time, the most notable changes in the last 25 years involve jurisdictional limits to Article 66 review and substantive case law impacts.
The tireless efforts of JAJA have resulted in significant changes to the practice of military justice over the last 25 years.
Article 66 established the limits in which the Air Force Court of Criminal Appeals (AFCCA) has jurisdiction to automatically review a service member’s court-martial conviction. In the last 25 years these limits have gradually changed. The 2016 Manual for Courts-Martial (MCM) authorized automatic review for those cases where the sentence adjudged included death, a punitive discharge, or confinement of one year or more. In the 2019 MCM, the jurisdictional element of the one-year sentence was increased to two years or more. While automatic review of jurisdictional limits seemed more restrictive, in the FY17 NDAA, Congress expanded AFCCA jurisdiction for certain Article 69 cases sent to the Court by TJAG to also include those that result in sentences of more than six months, which are not subject to automatic review. This significantly expanded the scope of review for the Appellate Defense Counsel Division. More recently under the FY23 NDAA, Congress further expanded jurisdiction to all members convicted by a General or Special Court-Martial, regardless of sentence. This jurisdictional change may significantly impact appellate caseloads.
The tireless efforts of JAJA have resulted in significant changes to the practice of military justice over the last 25 years. The most notable being the addition of a senior civilian appellate counsel that would fulfill the learned counsel role under Article 70. Other significant efforts include successfully advocating for maintaining an avenue of admission of outside matters needed to supplement the record in the interest of justice in United States v. Brennan, 58 M.J. 351 (C.A.A.F. 2003). This case has achieved even higher significance considering recent case law restricting submission of materials from outside the record. Clarifying lesser included offenses (LIO) by maturing an elements test changed the LIO landscape significantly in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). Further, JAJA has successfully argued for further restrictions on the submission of testimonial hearsay in United States v. Blazier, 69 M.J. 219 (C.A.A.F. 2010). JAJA advocates helped further define prosecutorial misconduct within trial counsel arguments in United States v. Voorhees, 79 M.J. 5 (C.A.A.F. 2019).
Disability Counsel Division (JAJO)
Since its inception in 2009, the JAJO has annually represented approximately 3,000 Airmen and Guardians who faced medical separation through the Disability Evaluation System, consisting of the two-part Medical Evaluation Board (MEB) and Physical Evaluation Board processes.
In 2019, the Secretary of the Air Force Personnel Council Board (SAF/PC) eliminated the ability of service members to file written appeals for review of Formal Physical Evaluation Board findings, leaving the only recourse for appeal with the Air Force Board for the Correction of Military Records. With the enactment of the FY22 NDAA, all service secretaries were required to establish an appeal process for service members to address their Formal Physical Evaluation Board findings. The FY22 NDAA also required the secretary-level appeal process to offer service members a live hearing and not just a written review. In 2022, JAJO collaborated with the Air Force Personnel Center (AFPC) and SAF/PC to establish policies and rules of procedure for the first ever appellate hearings. In December 2022, the Air Force, through JAJO and SAF/PC, was the first service within DoD to implement the live hearing requirement at the secretary-level for medical separation appeals in accordance with the FY22 NDAA.
Today, a team of 23 disability counsel and paralegals stationed at Joint Base San Antonio-Randolph, Texas lead the way in providing the unmatched legal representation and services to Airmen and Guardians stationed around the world
In 2020, when face-to-face board hearings were closed due to the COVID-19 pandemic, JAJO worked with AFPC to write new policies and rules of procedures to immediately establish telephonic and video capabilities to ensure hearings continued while also protecting the due process rights of service members. Since the establishment of telephonic and video hearings, the Air Force saved an estimated $500,000 in travel costs annually.
In 2022, JAJO negotiated with the Defense Health Agency to establish the office’s first ever access to electronic health records. This new capability provides real time records access, which dramatically fast tracks the medical records review of 3,000 service members annually going through an MEB.
Today, a team of 23 disability counsel and paralegals stationed at Joint Base San Antonio-Randolph, Texas lead the way in providing the unmatched legal representation and services to Airmen and Guardians stationed around the world.
Military Law and Policy Division (JAJM)
The Military Law and Policy Division (JAJM) provides counsel on military justice policy and represents the Department of the Air Force on the Joint Service Committee on Military Justice. Over the last 25 years, JAJM has been the leader in delivering military justice policy updates to meet the demands of our dynamic law practice.
In the 2010s, Congress amended the UCMJ several times, placing greater focus on the military’s handling of sexual assault cases. In 2011, Military Rule of Evidence 514 was implemented to provide for a communications privilege between victims and their victim-advocates. In 2013, Article 6b, UCMJ, was created to enumerate and expand an array of rights for victims in military justice proceedings, similar to the federal Crime Victim’s Rights Act. In 2016, the UCMJ significantly redefined the role of the military commander in the court-martial process by restricting their post-trial clemency authority. The 2016 amendments also transformed the Article 32 investigation into a probable cause-focused preliminary hearing. JAJM provided JAG Corps practitioners timely advice and tools to respond to each of these significant updates.
As the practice continues to evolve, JAJM will be at the forefront of those changes by issuing guidance to mission partners and demonstrating the JAG Corps’ adaptability to modern criminal justice issues.
The JAG Corps also updated its approach to courts-martial processing times in 2016. Following a year-long study, legal processing goals changed from time-based to due-process and resource-based metrics and milestones. Metrics now measure compliance with speedy trial requirements whereas milestones measure the overall health of a military justice program.
In 2018, JAJM created an in-residence Victim and Witness Assistance Program (VWAP) training event, which featured lectures, seminars, guest speakers, and practice scenarios. The success of this symposium led to the creation of the Victim Witness Information Network to encourage mentoring within the VWAP coordinator community.
In the 2020s, the UCMJ underwent another major overhaul. In addition to the 2021 mandate to create OSTC, Congress also mandated the establishment of sentencing parameters and guidelines, similar to federal sentencing guidelines, and military judge alone sentencing for all courts-martial. JAJM was a vital mission partner in preparing for these monumental changes.
One of the most consistent aspects in the past 25 years of Air Force military justice practice has been the use of the Automated Military Justice Analysis and Management System (AMJAMS), but this legacy system will soon be replaced with the new Disciplinary Case Management System (DCMS). With its cloud-based system utilizing state-of-the art industry standards, DCMS will revolutionize the way the JAG Corps processes, tracks, and manages discipline within the Air Force. Another major development was the launch of the Air Force Docket, which facilitates public access to court-martial documents and filings.
Example of the DCMS Dashboard
Over the last 25 years, military justice practice has evolved by expanding victim involvement, protecting the rights of the accused, and ensuring greater transparency in the military justice system. As the practice continues to evolve, JAJM will be at the forefront of those changes by issuing guidance to mission partners and demonstrating the JAG Corps’ adaptability to modern criminal justice issues.
Victims’ Counsel Division (JAJS)
In January 2013, the Air Force launched the first Special Victims’ Counsel (SVC) program in the DoD to provide better support to victims of sexual assault. Specifically, the purpose of the SVC program was to provide advice on the military justice process, provide advocacy to protect rights afforded to victims in the military justice system, and empower victims by removing barriers to their full participation in the military justice process.
JAJS continues to deliver victim-centered advice and advocacy through comprehensive, independent legal representation.
An initial cadre of 60 judge advocates with military justice litigation experience was hand-selected by TJAG to offer independent legal representation to victims of sexual assault throughout the investigation and prosecution processes. Within one month, SVCs represented 173 clients and made a profound and positive difference in the lives of survivors. As a result of the success of the Air Force SVC program, all military services were directed to establish SVC programs and provide SVCs to eligible victims who requested representation.
Since 2013, SVCs have significantly extended legal representation and services to victims of crime. In December 2020, the Department of the Air Force (DAF) expanded SVC services to qualifying victims of domestic violence offenses in accordance with the FY20 NDAA, section 548. In this capacity, SVCs represent victims of domestic violence offenses throughout the military justice process, and advocate for client rights as victims in the military system. As a result of SVC expansion, in November 2021, the Air Force Victims’ Counsel Charter was established, formally renaming the Division from “Special Victims’ Counsel” to “Victims’ Counsel” (VC).
In March 2022, TJAG expanded VC services to eligible victims of interpersonal violence (IPV). IPV victims are now offered privileged, confidential legal advice and services to educate crime victims on legal standards for various crimes under the UCMJ, educate victims on their rights as crime victims within the DAF, and provide access and referrals to victims’ support services as part of a comprehensive legal support network. VC currently represent regular component members, reserve component members, dependents, retirees, and others eligible for military legal assistance. DoD civilian employees who are victims of sex-assault may also be offered VC services where the accused is subject to the UCMJ and there is a nexus to their employment.
JAJS continues to deliver victim-centered advice and advocacy through comprehensive, independent legal representation. Today, a team of 114 VC and Victims’ Paralegals leads the way in advancing world-class victims’ legal representation and services at 48 offices worldwide.
Conclusion
The military justice landscape continues to evolve at a historic pace, but history is clear that a successful military force depends on preservation of good order and discipline. The Military Justice and Discipline Directorate stands at the forefront in meeting this key need. The Directorate’s global impact will continue to shape the practice of military law and be a driving force for the JAG Corps and DAF into the future.
About the Authors
Brigadier General Gail Crawford, USAF
(B.S., Florida State University, Tallahassee, Florida; J.D., Florida State University, Tallahassee, Florida; LL.M., The George Washington University, Washington, D.C.) is the Director, Military Justice and Discipline Directorate, Office of The Judge Advocate General, Joint Base Andrews, Maryland.
Chief Master Sergeant John M. Locke, USAF
(A.A.S., Paralegal Studies, Community College of the Air Force, Maxwell Air Force Base Gunter Annex, Alabama; A.A.S., Information Resource Management, Community College of the Air Force, Maxwell Air Force Base Gunter Annex, Alabama; Professional Manager’s Certification, Community College of the Air Force, Maxwell Air Force Base Gunter Annex, Alabama; B.S., Southwestern College, Winfield, Kansas) is the Senior Enlisted Leader, Military Justice and Discipline Directorate, Office of The Judge Advocate General, Joint Base Andrews, Maryland.
Edited by: Major Allison K.W. Johnson (Editor-in-Chief), Major Victoria H. Clarke, Major Courtney Norris, and Major Andrew H. Woodbury
Layout by: Thomasa Huffstutler