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Army publishes significant revision to AR 27-10.

Introduction

The Army recently published a comprehensive revision to Army Regulation (AR) 27-10, (42) ushering in significant changes to the administration of military justice. These changes, effective 14 October 2002, warrant the immediate attention of staff judge advocates, trial practitioners, and legal noncommissioned officers (NCOs). The Criminal Law Department, Office of the Judge Advocate General (OTJAG), issued an information paper on 10 September 2002, which addresses the major revisions of the updated regulation. (43) The purpose of this note is to further highlight and disseminate these changes, which can be grouped into three subject areas: judicial, nonjudicial, and administrative matters.

Judicial

Among the updated regulation's many changes within the judicial arena, this note discusses five of the most significant revisions. These five changes affect special courts-martial, automatic reduction, sentencing, suspension of favorable actions, and national security crimes coordination, respectively.

Arguably, the most significant judicial change is that AR-27-10 now authorizes special court-martial convening authorities (SPCMCA) to convene special courts-martial empowered to adjudge a bad-conduct discharge (BCD special). (44) Although not prevented by the Uniform Code of Military Justice (UCMJ), (45) AR 27-10 previously withheld SPCMCAs from convening such courts-martial. (46) The new AR 27-10 no longer contains this restrictive provision. (47)

Consistent with the requirements of its predecessor, paragraph 5-27 of the new AR 27-10 requires the detailing of a military judge, representation of the accused by qualified counsel, and the preparation of a verbatim record of trial before a special court-martial can adjudge a BCD. (48) Paragraph 5-27 also introduces one additional requirement. Before a special court-martial can adjudge a BCD, servicing staff judge advocates must prepare a pretrial advice for SPCMCAs under Rule for Courts-Martial (RCM) 406(b). (49)

The second major change reflected in the court-martial arena affects the automatic reduction of enlisted soldiers sentenced to confinement. Paragraph 5-28e now restricts automatic reduction to the lowest enlisted grade under Article 58a, UCMJ, (50) to cases with an approved sentence of a punitive discharge or "[c]onfinement in excess of 180 days ... or in excess of 6 months." (51) For example, consider a staff sergeant convicted at a BCD Special of wrongful appropriation who receives an adjudged sentence of two months confinement and forfeiture of two-thirds pay per month for two months. Before the revision to AR 27-10, the staff sergeant would be reduced to grade E-1 automatically upon approval of the sentence, even though his adjudged sentence did not include a reduction in grade. (52) Now, the staff sergeant is no longer subjected to this administrative inconsistency. (53)

A third change to the regulation clarifies the admissibility of sentencing documents during the presentencing hearing at a court-martial. In 1994, the Army Court of Military Review, now the Army Court of Criminal Appeals, held in United States v. Weatherspoon (54) that for purposes of RCM 1001(b)(2), "personnel records" are those contained in "the Official Military Personnel File (OMPF), the Military Personnel Records Jacket (MPRJ) and the Career Management Individual File (CMIF)." (55) In 1996, the Court of Appeals for the Armed Forces stated in United States v. Davis (56) that the admissibility of personnel records includes "any records made or maintained in accordance with departmental regulation that reflect ... the history of the accused." (57) Paragraph 5-28 of the new AR 27-10 expressly implements the Secretarial authority of RCM 1001(b)(2) and clarifies the more expansive view of admissibility of personnel documents during sentencing. (58)

A fourth change to AR 27-10 protects absent-minded trial counsel. Paragraph 5-15b now automatically suspends favorable personnel actions upon the preferral of charges. The suspension (or FLAG) remains in place until charges are dismissed or the convening authority takes initial action. (59)

Finally, a fifth change requires staff judge advocates to coordinate with OTJAG before preferring charges in cases that may have national security implications. (60) These cases include sedition, "giving intelligence to the enemy," spying, espionage, "unauthorized acquisition of military technology [and] research and development information ... on behalf of a foreign power, ... [v]iolation of rules ... concerning classified information, ... [s]abotage ... by or on behalf of a foreign power," subversion, treason, or domestic terrorism. (61)

Nonjudicial Punishment

The new AR 27-10 incorporates three major changes in the administration of nonjudicial punishment. First, appellate authorities can change filing determinations to the benefit of the appealing soldier. (62) For example, if a battalion commander directs the filing of an Article 15 in the performance section of a soldier's OMPF, on appeal the brigade commander may direct filing of the Article 15 in the restricted section of the soldier's OMPF. Any change in filing determination must be noted in block nine of Department of the Army Form 2627. (63)

Second, AR 27-10 now allows judge advocates to attend Article 15 hearings in a representative capacity; judge advocates may be present and render advice during the hearing phase to soldiers who have accepted nonjudicial punishment. The regulation provides that judge advocates giving such advice should do so during recesses in the hearing. (64) Representing and advising a soldier during the hearing is distinct from acting as a spokesman on a soldier's behalf. Judge advocates and civilian attorneys acting as spokesmen "do not serve in a representative capacity." (65)

Finally, AR-27-10 now requires "[i]mposing commanders, assisted by their legal clerks," to track the execution of punishment imposed. (66) Additionally, "[t]he Chief Legal NCO ... or delegee [must, at a minimum, annually inspect] the execution of Article 15 forfeitures and reductions." (67) To execute these tracking and inspection requirements properly, NCOs must pay meticulous attention to the proper flow of documents through the entire administrative system, including distribution, after Article 15s leave the imposing commander's desk. Therefore, to ensure compliance with these requirements, Chief Legal NCOs and, more importantly, Criminal Law NCOICs must develop and maintain good working relationships with their respective personnel and finance sections. Additionally, staff judge advocates and chiefs of military justice must recognize and supervise their legal NCOs' additional tracking requirements.

Administrative Matters

Among the significant administrative changes brought about by the new regulation include the addition of Chapter 24: Registration of Sexually Violent Military Offenders Who Are Not Confined. (68) This chapter implements 42 U.S.C. [section] 14071 (69) and Department of Defense Instruction 1325.7 (70) as the Army's "Military Sexual Offender Program." (71)

Chapter 24 contains a twofold requirement. First, "military officials [must] notify State officials upon release of soldiers [from confinement] or transfer of unconfined soldiers ... convicted at special or general courts-martial of a qualifying offense." (72) For military sexual offenders in Army confinement facilities, corrections officials are responsible for ensuring registration requirements are met. Trial counsel, however, have responsibilities in "cases in which the sentence in a special or general court-martial involves a finding of guilty of a covered offense without adjudged confinement." (73) These responsibilities include providing notice to the offender by requiring the offender to complete a form (74) acknowledging his registration requirements and ensuring this form is filed with the allied papers of the record of trial. (75)

Second, soldiers convicted of a qualifying offense or are otherwise required "[must] register with the Provost Marshal and with State and local officials." (76) Paragraph 24-4b of AR 27-10 mandates stringent registration requirements for soldiers with qualifying convictions. Notably, soldiers failing to meet these requirements are subject to punitive action. (77)

The new AR 27-10 also changes the agency responsible for funding certain trial defense expenses. Before 14 October 2002, convening authorities funded trial defense counsel travel and related expenses to interview witnesses related to a court-martial. (78) Paragraph 6-5a(2) now shifts to the Commander, United States Army Legal Services Agency, the burden of funding defense counsel travel "to interview the accused or any witnesses, take depositions, and investigate the case." (79)

Finally, Chapter 21 of AR 27-10 delineates active component support to reserve component commands. Paragraph 21-12 and the new Appendix E consolidate military justice support responsibilities. (80) Chiefs of military justice receiving a call from a contemporary in the reserve component need only reach for AR 27-10 for guidance to confront initial issues. Stateside staff judge advocates and chiefs of military justice should familiarize themselves with the geographical support areas set out in Appendix E.

Conclusion

This note and the OTJAG Criminal Law information paper highlight some, but not all, of the revisions contained in the new AR 27-10. As this note illustrates, the judicial, nonjudicial, and administrative changes made effective on 14 October 2002 are significant, wide ranging, and require immediate attention. Consequently, judge advocates and legal NCOs should read through the new regulation to gain a better understanding of the changes and, more specifically, how the changes will impact the local practice of military justice. Lieutenant Colonel Garrett.

(42.) U.S. DEP'T OF ARMY, REG. 27-10, MILITARY JUSTICE (6 Sept. 2002) [hereinafter AR 27-10] (superceding Army Regulation 27-10, dated 24 June 1996, and the electronic media edition, dated 20 August 1999).

(43.) Information Paper, Major Michelle E. Crawford, Criminal Law Department, Office of The Judge Advocate General, subject: Upcoming Changes to Army Regulation (AR) 27-10, Military Justice (10 Sept. 2002).

(44.) AR 27-10, supra note 42, para. 5-27.

(45.) UCMJ art. 23 (2000); See also MANUAL FOR COURTS-MARTIAL, UNITED STATES, R.C.M. 404(d), 504(b)(2) (2000) [hereinafter MCM].

(46.) See U.S. DEP'T OF ARMY, REG. 27-10, MILITARY JUSTICE para. 5-25b-c (20 Aug. 1999) [hereinafter 1999 AR 27-10].

(47.) See AR 27-10, supra note 42, para. 5-27.

(48.) Compare id. para. 5-27a, with 1999 AR 27-10, supra note 46, para. 5-25.

(49.) AR 27-10, supra note 42, para. 5-27b; see also id. para. 5-11 (requiring the detailing of court reporters to all special courts-martial).

(50.) UCMJ art. 58a(a) (providing for the automatic reduction to the lowest enlisted grade of a soldier above grade E-1 sentenced by a court-martial to a punitive discharge, any term of confinement, or any term of hard labor without confinement).

(51.) AR 27-10, supra note 42, para. 5-28e.

(52.) See UCMJ art. 58a(a).

(53.) AR 27-10, supra note 42, para. 5-28e.

(54.) 39 M.J. 762 (A.C.M.R. 1994).

(55.) Id. at 767.

(56.) 44 M.J. 13 (1996).

(57.) Id. at 20.

(58.) See AR 27-10, supra note 42, para. 5-28. Rule for Courts-Martial 1001(b)(2) states, "`Personnel records of the accused' includes any records made or maintained in accordance with departmental regulations that reflect the past military efficiency, conduct, performance, and history of the accused...." MCM, supra note 45, R.C.M. 1001(b)(2).

(59.) See AR 27-10, supra note 42, para. 5-15. See generally U.S. DEP'T OF ARMY, REG. 600-8-2, SUSPENSION OF FAVORABLE PERSONNEL ACTIONS (FLAGS) (30 Oct. 1987) [hereinafter AR 600-8-2].

(60.) AR 27-10, supra note 42, para. 2-7 (requiring an unclassified executive summary via e-mail).

(61.) Id.

(62.) See id. para. 3-37b(1)(a).

(63.) Id.; see also U.S. Dep't of Army, Form 2627, Record of Proceedings Under Article 15, UCMJ (Aug. 1984).

(64.) AR 27-10, supra note 42, para. 3-18g(1).

(65.) Id.

(66.) Id. para. 3-39 (emphasis added).

(67.) Id.

(68.) Id. ch. 24.

(69.) 42 U.S.C. [section] 14071 (2000) (Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program).

(70.) U.S. DEP'T OF DEF., INSTR. 1325.7, ADMINISTRATION OF MILITARY CORRECTIONAL FACILITIES AND CLEMENCY AND PAROLE AUTHORITY (17 July 2001) [hereinafter DODI 1325.7].

(71.) AR 27-10, supra note 42, para. 24-1.

(72.) Id. See generally id. para. 24-2 (listing covered UCMJ offenses (quoting DODI 1325.7, supra note 70, encl. 27)).

(73.) Id. para. 24-3.

(74.) U.S. Dep't of Army, Form 7439, Acknowledgment of Sex Registration Program (Sept. 2002), available at http://www.usapa.army.mil.

(75.) AR 27-10, supra note 42, para. 24-3. The record of trial form has been revised to reflect the implementation of the Military Sex Offender Program. See U.S. Dep't of Army, Form 4430, Record of Trial (Sept. 2002) (adding blocks 11 and 12 to annotate these requirements), available at http://www.usapa.army.mil.

(76.) AR 27-10, supra note 42, para. 24-4a.

(77.) See id. para. 24-4b.

(78.) 1999 AR 27-10, supra note 46, para. 6-5b.

(79.) AR 27-10, supra note 42, para. 6-5a(2).

(80.) See id. para. 21-12, app. E. Coordinating installation responsibilities outlining active component support, including military justice, were deleted from Army Regulation 5-9. See U.S. DEP'T OF ARMY, REG. 5-9, AREA SUPPORT RESPONSIBILITIES (16 Oct. 1998).
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Title Annotation:courts-martial procedure
Publication:Army Lawyer
Date:Sep 1, 2002
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