MILITARY JUSTICE ACT OF 2016 Punitive Articles Military

MILITARY JUSTICE ACT OF 2016 Punitive Articles Military

MILITARY JUSTICE ACT OF 2016 Punitive Articles Military Justice Legislation Training Team As of 3 August 2018 MTT Training Product 1 Overview Significant changes to the organization of the punitive articles Reordered to categorize similar offenses and renumbered accordingly Numerous offenses moved from Art 134 to become enumerated offenses Several articles were amended Several punitive articles combined with others or eliminated entirely Four new offenses As of 3 August 2018 MTT Training Product 2 CATEGORIES AND NUMBERING As of 3 August 2018 MTT Training Product

3 Categories Punitive articles reordered to organize similar offenses together: 1. General Provisions (77-79) 2. Inchoate Offenses (80-82) 3. Place of Duty Offenses (83-87) 4. Authority Offenses (88-94) 5. Enemy / Post Offenses (95-103) 6. Falsity Offenses (104-107a) 7. Property Offenses (108-109) 8. Vessel / Vehicle Offenses (110-111) 9. Intoxication / Drug Offenses (112-113) 10. Endangerment / Threatening Offenses (114-117) 11. Murder / Manslaughter / Child Endangerment (118-119b) 12. Sexual Offenses (120-120c) 13. Larceny / Fraud Offenses (121-124) 14. Offenses against persons (125-130) 15. Obstruction Offenses (131-132) 16. Offenses of General Application (133-134) As of 3 August 2018 MTT Training Product 4 Migrated Article 134 Offenses Over 30 offenses migrated from Article 134, and either merged into enumerated articles or given new designations Migrated offenses are well-recognized concepts in criminal law and do not need to rely on the terminal element as a basis for criminality

As of 3 August 2018 MTT Training Product 5 Migrated Article 134 Offenses Original Art 134 Offenses New Designation Assault with intent to commit specified offenses Bribery and Graft Art 128(c) Assault w/ intent to commit specified offenses Bribery Art 124a; Graft Art 124b Burning with intent to defraud Art 126(c) Burning property w/ intent to defraud Child endangerment Art 119b Child endangerment Correctional custody-offenses against Drinking liquor w/ prisoner Art 87b Offenses against correctional custody and restriction Art 96(b) (Drinking w/ prisoner)

Drunk prisoner Art 112(c) Drunk prisoner Drunkenness-incapacitation thru wrongful indulgence in liquor or any drug False or unauthorized pass offenses Art 112(b) Incapacitation for duty from drunkenness or drug use Art 105a False or unauthorized pass offenses False pretenses, obtaining services under Art 121b False pretenses to obtain services False swearing Art 107(b) False swearing Firearm, discharging willfully, under such circumstances as to endanger human life Fleeing scene of accident Art 114(c) Firearm discharge, endangering human life As of 3 August 2018 Art 111 Leaving scene of vehicle accident MTT Training Product 6

Migrated Article 134 Offenses Original Art 134 Offenses New Designation Impersonating a commissioned, warrant, noncommissioned or petty officer, or agent or official Art 106 Impersonation of officer, noncommissioned or petty officer, or agent or official Jumping from a vessel into the water Art 87(b) Jumping from vessel into the water Kidnapping Art 125 Kidnapping Mail: taking, opening, secreting, destroying, stealing Art 109a Mail matter: wrongful taking, opening, etc. Mails: depositing or causing to be deposited obscene matters in Misprision of serious offense Art 120a Mails: deposit of obscene matter Obstructing justice Art 131b Obstructing justice Wrongful interference w/ an adverse administrative

proceeding Parole, violation of Art 131g Wrongful interference with adverse administrative proceeding Art 107a Parole violation Perjury, subornation of Art 131a Perjury Public record: altering, concealing, removing, mutilating, obliterating, or destroying Art 104 Public records offenses Quarantine: medical, breaking Art 84 Breach of medical quarantine As of 3 August 2018 Art 131c Misprision of serious offense MTT Training Product 7 Migrated Article 134 Offenses Original Art 134 Offenses New Designation Restriction, breaking

Art 87b(c) Breach of restriction Seizure: destruction, removal, disposal of property to prevent Sentinel or lookout: offenses against or by Art 131e Prevention of authorized seizure of property Soliciting another to commit an offense Art 82(a) Soliciting commission of offenses generally Stolen property: knowingly receiving, buying, concealing Art 122a Receiving stolen property Testify: wrongful refusal Art 131d Wrongful refusal to testify Threat or hoax designed/intended to cause panic or public fear Threat, communicating Art 115 Communicating threats Unlawful entry Art 129(b) Unlawful entry Weapon: concealed, carrying

Art 114(d) Carrying concealed weapon Wearing unauthorized insignia, decoration, badge, ribbon, device or lapel button Art 106a Wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button As of 3 August 2018 Art 95 Offenses by sentinel or lookout Art 115 Communicating threats MTT Training Product 8 NUMBERING As of 3 August 2018 MTT Training Product 9 Numbering Current UCMJ MJA 2016 77: Principals 77: Principals

78: Accessory after the fact 78: Accessory after the fact 79: Conviction of LIOs 79: Conviction of offense charged, LIOs, and attempts 80: Attempts 80: Attempts 81: Conspiracy 81: Conspiracy 82: Solicitation 82: Soliciting commission of offenses 83: Fraudulent enlistment, appointment, or separation 83: Malingering (was Art 115) 84: Effecting unlawful enlistment, appointment, or separation 84: Breach of medical quarantine 85: Desertion 85: Desertion

86: Absence without leave 86: Absence without leave 87: Missing movement 87: Missing movement; jumping from vessel (was Art 134) 87a: Resistance, flight, breach of arrest, escape (was Art 95) 87b: Off. against correctional custody and restriction (was Art 134) As of 3 August 2018 MTT Training Product 10 Numbering Current UCMJ MJA 2016 88: Contempt toward officials 88: Contempt toward officials 89: Disrespect toward superior commissioned officer 89: Disrespect to sup. com. off; assault of superior commissioned officer (was Art 90) 90: Willfully disobeying superior commissioned officer

90: Assaulting or willfully disobeying superior commissioned officer 91: Insubordinate conduct towards WO, NCO, PO 91: Insubordinate conduct towards WO, NCO, PO 92: Failure to obey order or regulation 92: Failure to obey order or regulation 93: Cruelty and maltreatment 93: Cruelty and maltreatment 94: Mutiny and sedition 93a: Prohibited activities with military recruit or trainee by person in position of special trust *** 94: Mutiny or sedition 95: Resistance, flight, breach of arrest, escape 95: Offenses by sentinel or lookout (was Art 134) 95a: Disrespect to sentinel or lookout (was Art 134) 96: Releasing prisoner w/o proper authority 97: Unlawful detention 96: Release of prisoner w/o authority; drinking w/ prisoner (was Art 134) 97: Unlawful detention 98: Non-compliance w/ procedural rules

98: Misconduct as prisoner (was Art 105) As of 3 August 2018 MTT Training Product 11 Numbering Current UCMJ MJA 2016 99: Misbehavior before the enemy 99: Misbehavior before the enemy 100: Subordinate compelling surrender 100: Subordinate compelling surrender 101: Improper use of countersign 101: Improper use of countersign 102: Forcing a safeguard 102: Forcing a safeguard 103: Captured or abandoned property 103: Spies (was Art 106) 103a: Espionage (was Art 106a) 103b: Aiding the enemy (was Art 104)

104: Aiding the enemy 104: Public records offenses (was Art 134) 104a: Fraud. Enlist., appt. or separation (was Art 83) 104b: Unlawful enlist., appt. or sep. (was Art 84) 105: Misconduct as a prisoner 105: Forgery (was Art 123) 105a: False / unauth. pass offenses (was Art 134) 106: Spies 106a: Espionage As of 3 August 2018 106: Impersonation of officer, NCO, or PO, or agent or official (was Art 134) 106a: Wear. unauth. insignia, decor., etc.(was Art 134) MTT Training Product 12 Numbering Current UCMJ 107: False official statements 108: Mil. property of the US sale, loss, damage, destruction, or wrongful disposition 109: Property other than mil. property of US waste, spoilage, or destruction 110: Improper hazarding of vessel 111: Drunken or reckless operation of vehicle, aircraft,

or vessel 112: Drunk on duty 112a: Wrongful use, possession, etc. of controlled substances 113: Misbehavior of sentinel or lookout As of 3 August 2018 MJA 2016 107: False official statements; false swearing (was Art 134) 107a: Parole violation (was Art 134) 108: Mil. property of the US loss, damage, destruction, or wrongful disposition 108a: Captured or abandoned property (was Art 103) 109: Property other than mil. property of US waste, spoilage, or destruction 109a: Mail matter: wrongful taking, opening, etc. (was Art 134) 110: Improper hazarding of a vessel or aircraft 111: Leaving scene of vehicle accident (was Art 134) 112: Drunkenness and other incapacitation offenses (incorporates Art 134 paras. 75 and 76) 112a: Wrongful use, possession, etc. of a controlled substance 113: Drunken or reckless operation of a vehicle, aircraft, or vessel (was Art 111) MTT Training Product 13 Numbering Current UCMJ

MJA 2016 114: Dueling 115: Malingering 114: Endangerment offenses (incorporates: Reckless endangerment; Firearm, discharging willfully under such circumstances as to endanger human life; and Weapon: concealed, carrying from Art 134) 115: Communicating threats (was Art 134) 116: Riot or breach of peace 116: Riot or breach of peace 117: Provoking speeches or gestures 117: Provoking speeches or gestures 117a: Wrongful broadcast or distribution of intimate visual images *** 118: Murder 118: Murder 119: Manslaughter 119: Manslaughter 119a: Death or injury of an unborn child 119a: Death or injury of an unborn child

119b: Child endangerment (was Art 134) 120: Rape and sexual assault generally 120: Rape and sexual assault generally 120a: Stalking 120a: Mail: dep. obscene matter(was Art 134) As of 3 August 2018 MTT Training Product 14 Numbering Current UCMJ MJA 2016 120b: Rape and sexual assault of a child 120b: Rape and sexual assault of a child 120c: Other sexual misconduct 120c: Other sexual misconduct 121: Larceny and wrongful appropriation 121: Larceny and wrongful appropriation 121a: Fraudulent use of credit cards, etc.*** 121b: False pretenses to obtain services (was Art 134)

122: Robbery 122: Robbery 122a: Receiving stolen property (was Art 134) 123: Forgery 123: Offenses concerning Government computers*** 123a: Making, drawing, or uttering check, draft, or order 123a: Making, drawing, or uttering check, draft, or order without sufficient funds without sufficient funds 124: Maiming 124: Frauds against the United States (was Art 132) 124a: Bribery (was Art 134) 124b: Graft (was Art 134) 125: Forcible sodomy; bestiality 125: Kidnapping (was Art 134) 126: Arson 126: Arson; burning property w/ intent to defraud (was Art 134) As of 3 August 2018 MTT Training Product 15 Numbering Current UCMJ

MJA 2016 127: Extortion 127: Extortion 128: Assault 128: Assault (incorporates assault with intent to commit specified offenses from Art 134) 128a: Maiming (was Art 124) 129: Burglary 129: Burglary; unlawful entry (was Art 134) 130: Housebreaking 130: Stalking (was Art 120a) 131: Perjury 131: Perjury 131a: Subornation of perjury (was Art 134) 131b: Obstructing justice (was Art 134) 131c: Misprision of a serious offense (was Art 134) 131d: Wrongful refusal to testify (was Art 134) 131e: Prevention of authorized seizure of property (was Art 134) 131f: Noncompliance w/ procedural rules (was Art 98) 131g: Wrongful interference w/ adverse administrative proceeding (was Art 134)

As of 3 August 2018 MTT Training Product 16 Numbering Current UCMJ MJA 2016 132: Frauds against the United States 132: Retaliation*** 133: Conduct unbecoming an officer and gentleman 133: Conduct unbecoming an officer and gentleman 134: General article 134: General article As of 3 August 2018 MTT Training Product 17 NEW OFFENSES As of 3 August 2018 MTT Training Product

18 Four Brand New Offenses Article 93a: Prohibited activities with military recruit or trainee by person in position of special trust Article 121a: Fraudulent use of credit cards, debit cards, and other access devices Article 123: Offenses concerning Government computers Article 132: Retaliation As of 3 August 2018 MTT Training Product 19 Art 93a Prohibited activities with military recruit or trainee by person in position of special trust Though Services already prohibit these types of acts by regulation, Art 93a allows enhanced accountability for sexual misconduct by recruiters and trainers in the recruiting and basic military training environments Max punishment under Art 92: DD, 2 years Max punishment under Art 93a: DD, 5 years As of 3 August 2018 MTT Training Product 20

Art 93a Prohibited activities with military recruit or trainee by person in position of special trust Two separate offenses: a. Abuse of training leadership position - Staff at basic training, AIT, OCS, academies, ROTC b. Abuse of position as military recruiter - Specifically aimed at military recruiters Consent is not a defense As of 3 August 2018 MTT Training Product 21 Abuse of Training Leadership Position Statutory text: Any person subject to this chapter: Who is an officer, a noncommissioned officer, or petty officer; Who is in a training leadership position with respect to a specially protected junior member of the armed forces; and Who engages in prohibited sexual activity with such specially protected junior member of the armed forces As of 3 August 2018 MTT Training Product 22

Abuse of Training Leadership Position President-prescribed elements: That the accused was a commissioned, warrant, noncommissioned or petty officer; That the accused was in a training leadership position with respect to a specially protected member of the armed forces; and That the accused engaged in prohibited sexual activity with a person the accused knew, or reasonably should have known, was a specially protected junior member of the armed forces. As of 3 August 2018 MTT Training Product 23 Abuse of Training Leadership Position Statutory text: Any person subject to this chapter: Who is an officer, a noncommissioned officer, or petty officer; Who is in a training leadership position with respect to a specially protected junior member of the armed forces; and Who engages in prohibited sexual activity with such specially protected junior member of the armed forces As of 3 August 2018 MTT Training Product

24 Training Leadership Position Training Leadership Position Drill instructor / other leadership position in any of the following programs: Basic training/AIT OCS ROTC A training program for entry into armed forces Any training program identified by Service Secretaries as training program for initial career qualification Faculty and staff at service academies As of 3 August 2018 MTT Training Product 25 Specially Protected Junior Member Specially protected junior member of the armed forces: Assigned to / awaiting assignment to, basic training or other

initial active duty for training, including one enlisted under delayed entry program; Cadet, midshipman, officer candidate, or student in any other officer qualification program In any program identified by Secretary concerned as training program for initial career qualification As of 3 August 2018 MTT Training Product 26 Prohibited Sexual Activity USAREC Regpara. 27-44-14b: definesrelationships relationship any socialif activity areas:prohibited they: of AR As600-20, specified in regulations prescribed by the an unofficial nature including relationships conducted in

(1) compromise, or appear tothose compromise, the integrity of the Secretary concerned, inappropriate physical person or via cards, letters, instant supervisory authority oremails, the CoCtelephone calls, intimacy under circumstances described messaging, video, social networking, or in anysuch other (2) Cause actual orphotographs, perceived

partiality or unfairness means of communication. Thispredictable includes, but is not limited to, regulations (3) Create an actual or clearly adverse impact on dating, handholding, kissing, embracing, caressing, engaging discipline, authority, morale, or the ability of theand command to sexual activities. accomplish its the mission. inWhat

should definition be? (2) Sexual contact.The term sexual contact means touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished byAsany part object. of 3 August 2018of the body or an MTT Training Product 27 Scenario An ROTC instructor engages in consensual sexual activity with a 19-year-old ROTC cadet from another university who he met in a bar. The instructor knew the 19-year-old was in an ROTC program. Drill instructor / other leadership position Specially protected junior 1. Does consent matter under

93a? in any of the following Any person subject tomembers: this Art chapter: programs: - Assigned to / awaiting assignment to, basic training or other Is the instructor in a training leadership position? -2.who is an officer, NCO, petty officer; Basic training initial active duty for training, including one enlisted

underof the 3. Is the 19-year-old a specially protected junior member - who is in aentry training leadership position with respect respect to to aa OCS delayed program; armed forces? ROTC specially protected junior oforthe armedinforces; and - Cadet, midshipman, officermember candidate, student any other 4. Is the

ROTC instructor in a into training leadership position with Any training program for entry armed forces officer qualification program - who engages in prohibited sexual activity with such specially Any training program identified by Service Secretaries respect to the cadet? -protected In any program identified by Secretary concerned as training junior member of

the armed forces Faculty at academies 5. So could for theinitial ROTC instructor be prosecuted under Art 93a? program career qualification As of 3 August 2018 MTT Training Product 28 Abuse of Position as Military Recruiter Art Any 93a(d)(4) Military Recruiter: a person who, under regulations b. person subject to this

chapter who is a prescribedrecruiter by the Secretary military and: concerned, has the primary duty to recruit persons for military service. Engages in prohibited sexual activity with an applicant for military service; or Engages in prohibited sexual activity with a specially protected junior member of the armed forces enlisted under a delayed entry program Applicant for military service: person who, under regulations prescribed by the Secretary is an applicant for original enlistment or appointment in the armed forces As of 3 August 2018 MTT Training Product 29 What Should the Definition of Applicant be? USAREC Manual 3-31 defines applicant: A prospect who has agreed to process for enlistment, commissioning or reclassification

USAREC Regulation 27-4 defines applicant: Any person who has commenced processing for enlistment or appointment in any of the military Services by initiating a DD Form 1966, Record of Military Processing Armed Forces of the United States or comparable form As of 3 August 2018 MTT Training Product 30 How is Prospect Defined in the Definition of Applicant? USAREC Manual 3-31 defines prospect as: Any person who agreed to meet with an Army Recruiter or a person who has met with a Recruiter but has not committed to process USAREC Reg 27-4 defines prospect as: Any person who has expressed, to recruiting personnel, an interest in enlisting or receiving an appointment in a Military Service and who appears to possess, or who may in the future possess, the potential and qualifications for enlistment or appointment in said Military Service As of 3 August 2018 MTT Training Product 31 Art 121a

Fraudulent use of credit cards, debit cards, and other access devices Theft and misuse of credit / debit cards are currently charged under Art 121 as obtaining-type larceny by false pretense Requires correct identification of the victim incurring the loss Recurring issues with practitioners being able to accurately identify the victim As of 3 August 2018 MTT Training Product 33 Art 121a New article makes it easier; focuses on the wrongfulness of the act of misusing an access device without authorization and for personal gain Offense focuses on intent of the accused and technology Access device has the meaning given that term in 18 USC 1029:

Intent toby defraud: intent to obtain, through a misrepresentation, used the accused any card, plate, code, account number, electronic serial number, an article or thing of value and topersonal apply it to ones own use and benefit mobile identification number, identification number, or Any person who knowingly andequipment,

with intent defraud or to the use and benefit ofservice, another, either permanently or uses other telecommunications ortoinstrument (a)(1) A stolen credit/debit card or other access device temporarily. identifier, or other means of account access that can be used, alone (a)(2) Revoked, cancelled, otherwise invalid credit/debit card or or in conjunction another access device, to obtain money, other access with device; or goods, services, or card, any other thingor ofother value, or that

can be (a)(3) A credit debit card, access device w/oused the to initiate a transfer of (other than a transfer is originated authorization of funds a person whose authorization required solely by To obtain money, property, services or anything of value paper instrument) As of 3 August 2018 MTT Training Product 34 Art 121a Regarding subparagraph (a)(3) A credit card, debit card, or other access device w/o the authorization of a person whose authorization is required:

(4) Use of a credit card, debit card, or other access device without the authorization of a person whose authorization was required for such use. This provision applies to situations where an accused has no authorization to use the access device from a person whose authorization is required for such use, as well as situations where an accused exceeds the authorization of a person whose authorization is required for such use. As of 3 August 2018 MTT Training Product 35 Scenario 1LTperson Melgar hands 1LT Persons her credit carduses Any who knowingly and with intent to defraud and asks 1LT Persons to use order a pizza. (a)(1) A stolen

credit/debit card itorto other access device 1LT Persons walks across the room to his laptop, (a)(2) Revoked, cancelled, otherwise invalid credit/debit card or other access device;and or makes gets on the Dominos Pizza website A credit card, card, or other access device the(a)(3) transaction. Butdebit before returning

1LT Melgars w/otothe authorization of a goes persontowhose authorization card her, 1LT Persons the Amazon is required website and uses 1LT Melgars credit card to To obtain anything of hair valuecare products. purchase $200 of 1. How would this be charged under new Art 121a? As of 3 August 2018 MTT Training Product 36 Art 121a Maximum punishment: $1,000 or less = BCD, total forfeitures, 10 years confinement During any 1 year period the aggregate value of which is more than $1000 = DD, total forfeitures, 15 years confinement

As of 3 August 2018 MTT Training Product 37 Art 123 Government Computers Currently, military prosecutors can charge computer crimes committed in the U.S. under clauses 1, 2 and 3 of Art 134 But computer crimes committed outside the U.S. may only be charged under Art 134, clause 1 or 2 because federal statutes that could be used under clause 3 have no extra-territorial reach Art 134, clauses 1 and 2 require the Government to prove both the civilian offense and the terminal element, whereas clause 3 does not require proving the terminal element New Art 123 resolves the issue, as it applies regardless of the locus of the offense As of 3 August 2018 MTT Training Product 38 Art 123 Offenses Concerning Government Computers New Art 123 adopts a criminal offense similar to 18 USC 1030 (fraud and related activity in connection with Computer: defined IAW definition USC Governmentbroadly computer:

a computer ownedinor18operated computers), and contains three types of offenses: 1030: electronic, optical, electrochemical, by or onan behalf of the magnetic, United States Government or other high speed data processing device performing Subparagraph (a)(1): logical, arithmetic, or astorage functions, includes any Knowingly accesses Government computerand w/ an unauthorized datapurpose, storageand facility or communications facility directly By so obtains classified information with

with reason to believe related todoing or operating in conjunction such device, such information used to the injury the U.S. or is Unauthorized key criterion forofcriminality but such term purpose: doescould notbe include an automated typewriter advantage of any foreign nation, and whether the person intentionally used the computer for a or typesetter, acommunicates, portable hand held

calculator, or other Intentionally delivers, transmits, or causes to be similar device. A portable including purpose that was clearly contrary to the intent communicated, delivered orcomputer, transmitted suchinterests info toaanyor person notauthorizing entitledis to areceive it smartphone, computer. of the party As of 3 August 2018 MTT Training Product

39 Art 123 Subparagraph (a)(2): Intentionally accesses a Government computer with an unauthorized purpose, and Thereby obtains classified or otherincludes protected Protected information under (a)(2): PII,information CUI, from such Government computer FOUO, LES,any UCNI Subparagraph (a)(3): Knowingly causes the transmission of any program, code, etc., and As a result intentionally causes damage w/o Damage: any impairment to integrity or availability of authorization to a Government computer data, a program, system or information As of 3 August 2018 MTT Training Product

40 Scenario CPT Blue needs money. His gambling debts are out of control. As the Battalion S1 he has access Subparagraph (a)(2): to a lot of PII. On a weekend he goes into hisis Unauthorized purpose: key criterion for criminality - Intentionally accesses a Government computer with an office, accesses his government andfor whether the person intentionally usedcomputer the computer unauthorized purpose, and writes down sufficient

PII to apply forinterests several lines a purpose that was clearly contrary to the or Protected information under (a)(2): includes PII, CUI, - Thereby obtains classified or other protected information intent the authorizing party of credit insuch other Soldiers names. FOUO, LES, UCNI

fromof any Government computer 1. Can CPT Blue be charged under Art 123? As of 3 August 2018 MTT Training Product 41 Art 132 Retaliation Focuses on the abuse of otherwise lawful military authority for the purpose of retaliating against anyone for either reporting a criminal offense or for making a protected communication retaliate: when personnel action is done for the purpose Intent Two to separate forms of intent: of1. reprisal, retribution or revenge With intent to retaliate against any person for reporting/planning to report a criminal offense or for making or planning to make a protected communication 2. With intent to discourage any person from reporting a criminal offense or making or planning to make a protected

communication As of 3 August 2018 MTT Training Product 42 Definitions Protected communication Lawful communication to Congress or an IG; or Communication to covered individual / organization by a member of the armed forces who complains of or discloses info he/she reasonably believes constitutes evidence of: A violation of the law or regulation Gross mismanagement, Gross waste of funds, Abuse of authority, or Substantial and specific danger to public health or safety As of 3 August 2018 MTT Training Product 43 Definitions Covered individual / organization means any

recipient of a communication specified in 10 USC 1034(b)(1)(B)(i)-(v): Member of Congress Inspector General Member of DoD audit, inspection, investigation, or LE Any person or organization in the CoC Court-martial proceeding As of 3 August 2018 MTT Training Product 44 Art 132 With either of these forms of intent, the accused 1. Wrongfully takes or threatens to take an adverse personnel action against any person; or 2. Wrongfully withholds or threatens to withhold a favorable personnel action with respect to any person As of 3 August 2018 MTT Training Product 45 Definitions

Wrongful: taking/withholding adverse/favorable personnel action is done for purpose of reprisal rather than for lawful personnel administration Personnel action: any action taken on a Servicemember that affects, or has the potential to affect, that Servicemembers current position or career, including promotion, disciplinary or other corrective action, transfer or reassignment, performance evaluations, decisions concerning pay, benefits, awards, or training, relief and removal, separation, discharge, referral for mental health evaluations, and any other personnel actions as defined by law or regulation As of 3 August 2018 MTT Training Product 46 Scenario At a closeout formation on a Friday afternoon the commander stood in front of his company and gave them the usual safety brief. Frustrated with a recent spate of congressional complaints from Soldiers in his company, the commander made it clear that any Soldier with a complaint should first bring it to his/her chain of command before going to a Congressperson. 1. Did the CDR intend to discourage any person from making a protected communication? 2. Did the CDR take or threaten to take adverse personnel action or withhold/threaten to withhold favorable personnel action? 3. Do the CDRs actions constitute an offense under Art 132? As of 3 August 2018 MTT Training Product 47

Scenario An NCO went to the IG and alleged that his CDR was a toxic leader. Two weeks later the NCOs CDR somehow found out who made the report. He called the NCO into his office, left him in the position of attention, and for five minutes gave him a blistering lecture about the need for loyalty in the company. He then dismissed the NCO and never addressed the matter with him again in any fashion. 1. Was this a protected communication? 2.Intent Did thetoCDR intend towhen retaliate as such is action defined is in done the statute? retaliate: personnel for the purpose 3. Did the CDR take or threaten to take adverse personnel action or of reprisal, retribution or revenge withhold/threaten to withhold favorable personnel action? 4. Do the CDRs actions constitute an offense under Art 132? 5. What if after dismissing the NCO, the CDR gave him a Did not meet the standard in character on the NCOs next NCOER? As of 3 August 2018 MTT Training Product 48 Amended Articles

As of 3 August 2018 MTT Training Product 49 Amended Punitive Articles Many punitive articles have amended maximum punishments, element changes or other amendments General provisions: 79 Inchoate: 82 Place of Duty: 84 Authority: 89, 90, 93 Enemy / Post: 96, 103 Property: 108, 109 Vessel, vehicle: 110 Intoxication/drug: 112, 113 Endangerment/threatening: 114, 115

Murder/Manslaughter/Child endangerment: 119b Sexual: 120, 120b, 120c Larceny/Fraud offenses: 121, 121a, 121b,122, 122a, 124 Offenses against persons: 126, 128, 129, 130 Obstruction offenses: 131e Offenses of general application: 133, 134 (General, CP, Adultery) We will focus only on a few that you are most likely to encounter As of 3 August 2018 MTT Training Product 50 Art 113 Drunken or reckless operation of a vehicle Moved from Art 111 The BAC statutory limit is lowered to .08 As of 3 August 2018 MTT Training Product 51 Art 120(b) Sexual Assault Current MJA 2016 120(b) Sexual assault 120(b) Sexual assault

(1) Commits a sexual act by (1) Commits a sexual act by (A) Threatening or placing in fear (B) Causing bodily harm (C) Fraudulent representation (D) Inducing belief that person is another person (A) Threatening or placing in fear (B) Fraudulent representation (C) Inducing belief that person is another person (2) Commits a sexual act (2) Commits a sexual act when knows or reasonably should know person is asleep, unconscious, otherwise unaware As of 3 August 2018 MTT Training Product (D) Without the consent of the other person; or (E) When knows or reasonably should know person is asleep, unconscious, otherwise unaware 52

Art 120(b) Sexual Assault Current MJA 2016 120(b) Sexual 120(b) as Sexual assaultis: MJA 2016 definesassault Incapable of consenting the person (3) Commits sexual act when (3) of Commits a sexual when (A) Incapablea of appraising the nature the conduct at act issue; or the other person is incapable of the other person is incapable of (B)

Physically incapable of declining participation in, or consenting due to consenting due to communicating to engage in, the sexual (A) Impairment by any act drug,at (A)Impairment by anyunwillingness drug, intoxicant, etc. known or issue intoxicant, etc. known or reasonably should be known (B)A mental disease or defect, or physical disability known or reasonably should be known As of 3 August 2018 MTT Training Product reasonably should be known (B) A mental disease or defect, or physical disability known

or reasonably should be known 53 Art 120(g)(1) Sexual Act Current MJA 2016 (A) Contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or (A) Penetration, however, slight, of the penis into the vulva or anus or mouth; (B) Penetration, however slight, of the vulva or anus or mouth of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person (C) Penetration, however slight, of the vulva or penis or anus of another by any part of the

body or any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person As of 3 August 2018 (B) Contact between the mouth and the penis, vulva, scrotum, or anus; or MTT Training Product 54 Rape and Sex Assault of a Child Art 120b(h)(1) Sexual Act Current (A) Contact between the penis and the vulva or anus or mouth, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; or (B) Penetration, however slight, of the vulva or anus or mouth of another by any part of the body or by any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify

the sexual desire of any person As of 3 August 2018 MJA 2016 (A) Penetration, however, slight, of the penis into the vulva or anus or mouth; (B) Contact between the mouth and the penis, vulva, scrotum, or anus; or (C) Penetration, however slight, of the vulva or penis or anus of another by any part of the body or any object, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person (D) Intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person. MTT Training Product 55 Art 120(g)(2) Sexual Contact (same definition for Art 120b) Current MJA 2016

(A) Touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade any person; or (B) Any touching, or causing another person to touch, either directly or through the clothing, any body part of any person, if done with an intent to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body As of 3 August 2018 (g)(2) touching, or causing another person to touch, either directly or through the clothing, the vulva, penis, scrotum, anus groin, breast, inner thigh, or buttocks of any person, with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person. Touching may be accomplished by any part of the body or an object. MTT Training Product

56 Definition of Consent Current Art 120(g)(8) (A) Lack of verbal or physical resistance or submission resulting from the use of force, threat of force, or placing another person in fear does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue shall not constitute consent. (C) Lack of consent may be inferred based on the circumstances of the offense. All the surrounding circumstances are to be considered in determining whether a person gave consent, or whether a person did not resist or ceased to resist only because of another persons actions. As of 3 August 2018 MJA 2016 Art 120(g)(7) (A) Lack of verbal or physical resistance does not constitute consent. Submission resulting from the use of force, threat of force, or placing another person in fear also does not constitute consent. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the

conduct at issue does not constitute consent. (C) All the surrounding circumstances are to be considered in determining whether a person gave consent. MTT Training Product 57 Scope of Threatening or Placing Another Person in Fear Both 120(a) (Rape) and 120(b) (Sexual Assault) criminalize sexual acts committed by threatening or placing that other person in fear Art 120(g)(6) defines threatening or placing that other person in fear as: a communication or action; that is of sufficient consequence; to cause a reasonable fear; that non-compliance will result in the V or another person being subjected to the wrongful action contemplated by the communication or action. As of 3 August 2018 MTT Training Product

58 Scope of Threatening or Placing Another Person in Fear MJA 2016 does not change that statutory definition However, the President via executive order clarifies that threatening or placing another person in fear includes an abuse of rank, position or authority in order to engage in a sexual act or sexual contact As of 3 August 2018 MTT Training Product 59 Scope of Threatening or Placing Another Person in Fear Annex II, para. 60c(4): The phrase wrongful action within Article 120(g)(6) (defining threatening or placing that other person in fear) includes an abuse of military rank, position, or authority in order to engage in a sexual act or sexual contact with a victim. This includes, but is not limited to, threats to initiate an adverse personnel action unless the victim submits to the accuseds requested sexual act or contact; and threats to withhold a favorable personnel action unless the victim submits to the accuseds requested sexual act or sexual contact. Superiority in rank is a factor in, but not dispositive of, whether a reasonable person in the position of the victim would fear that his or her noncompliance with the accuseds desired sexual act or sexual contact would result in the threatened wrongful action contemplated by the communication or action. As of 3 August 2018 MTT Training Product

60 Art 128 Assault Current MJA 2016 128(a): any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault 128(a): any person subject to this chapter who, unlawfully and with force or violence (1) Attempts to do bodily harm to another person; (2) Offers to do bodily harm to another person; or (3) Does bodily harm to another person; is guilty of assault As of 3 August 2018 MTT Training Product 61

Art 128 Aggravated Assault Current MJA 2016 128(b) any person subject to this chapter who 128(b): any person subject to this chapter, (1) Commits an assault with a (1) Who, with intent to do bodily dangerous weapon or other harm, offers to do bodily means or force likely to harm with a dangerous produceBodily death Harm or grievous weapon; Substantial means bodily injury thatorinvolves: bodily harm; or (2) Who, in committing an (i) Temporary but substantial disfigurement, or (2) Temporary Commits an assault and loss or impairment assault, inflicts (ii)

but substantial of substantial intentionally inflicts grievous bodily harm, or grievous function of any member, organ, or harm mental bodily harm withbodily or without a bodily onfaculty another weapon person Middle tier of harm adopted USCof113(b)(1) is guilty of aggravated assault fromis18 guilty aggravated assault As of 3 August 2018

MTT Training Product 62 Art 128 Dangerous Weapon Current MJA 2016 A weapon is dangerous when used in a manner likely to produce death or grievous bodily harm A weapon is dangerous when used in a manner capable of inflicting death or grievous bodily harm. What constitutes a dangerous weapon depends not on the nature of the object itself but on its capacity, given the manner of its use, to kill or inflict grievous bodily harm Ex: fists, elbows, teeth, feet, etc. As of 3 August 2018 MTT Training Product 63 Sentence Enhancements Current

MJA 2016 Assault consummated by battery upon child under 16: DD, 2 years Agg assault w/ dangerous weapon or other means or force likely to produce death/GBH when committed on a child under 16: DD, 5 yrs As of 3 August 2018 Assault consummated by battery upon child under 16, spouse, intimate partner, or immediate family member: DD, 2 years Agg assault w/ dangerous weapon when committed on child under 16, spouse, intimate partner, immediate family member: DD, 5 years MTT Training Product 64 Sentence Enhancements Current MJA 2016

Agg assault in which substantial bodily harm inflicted w/ loaded firearm: DD, 8 yrs Child under 16, spouse, intimate partner, immediate family member: DD, 6 yrs Other cases: DD, 3 yrs Agg assault where GBH intentionally inflicted on child under 16: DD, 8 years As of 3 August 2018 Agg assault in which GBH inflicted on child under 16, spouse, intimate partner, immediate family member: DD, 8 years MTT Training Product 65 Art 128(c) Assault w/ Intent (Migrated from Art 134) Current MJA 2016 Assault with intent to commit murder, voluntary manslaughter, rape, robbery, forcible sodomy, arson,

burglary, or housebreaking As of 3 August 2018 Assault with intent to commit murder, voluntary manslaughter, rape, sexual assault, rape of a child, sexual assault of a child, robbery, arson, burglary, and kidnapping MTT Training Product 66 Art 130 Stalking (Relocated from Art 120a) Expands protections to courses of conduct causing fear of death or bodily harm to intimate partners Defines conduct for purposes of stalking Adds a new, general definition of course of conduct As of 3 August 2018 MTT Training Product 70 Stalking Current MJA 2016

(1) course of conduct that would cause a reasonable person to fear death / bodily harm, including sexual assault, to himself or herself or immediate family; (2) has / should have knowledge that specific person will be placed in reasonable fear of death / bodily harm, including sexual assault, to himself or immediate family; and (3) whose acts induce reasonable fear in the specific person of death / bodily harm, including sexual assault, to himself or immediate family; As of 3 August 2018 (1) course of conduct that would cause reasonable person to fear death / bodily harm, including sexual assault, to himself or immediate family, or to intimate partner; (2) has / should have knowledge, that specific person will be placed in reasonable fear of death / bodily harm, including sexual assault, to himself or immediate family, or to intimate partner; and (3) whose conduct induces reasonable fear in the specific person of death / bodily harm, including sexual assault, to himself or immediate family, or to his or her intimate partner; MTT Training Product

71 Immediate Family Current MJA 2016 a spouse, parent, child, or sibling of the person, or any other family member, relative, or intimate partner of the person who regularly resides in the household of the person or who within the six months preceding the commencement of the course of conduct regularly resided in the household of the person As of 3 August 2018 (A) that persons spouse, parent, brother or sister, child, or other person to whom he or she stands in loco parentis; or (B) any other person living in his or her household and related to him or her by blood or marriage MTT Training Product 72

Course of Conduct Current MJA 2016 (A) a repeated maintenance of visual or physical proximity to a specific person; or (B) a repeated conveyance of verbal threat, written threats, or threats implied by conduct, or a combination of such threats, directed at or toward a specific person As of 3 August 2018 (A) a repeated maintenance of visual or physical proximity to a specific person; or (B) a repeated conveyance of verbal threat, written threats, or threats implied by conduct, or a combination of such threats, directed at or toward a specific person (C) a pattern of conduct composed of repeated acts evidencing a continuity of purpose MTT Training Product

73 Intimate Partner Current No definition in Art 120a MJA 2016 (A) former spouse, person who shares a child in common, person who cohabits with or has cohabitated as a spouse; or (B) person who has been in a social relationship of a romantic or intimate nature, as determined by length, type and frequency of interaction As of 3 August 2018 MTT Training Product 74 Conduct Current No definition in Art 120a MJA 2016 Art 130 definition: conduct of any kind, including use of surveillance, the mails, an interactive computer service, an electronic communication

service, or an electronic communication system Note: Intended to encompass cyberstalking As of 3 August 2018 MTT Training Product 75 Art 134: General Article Currently, crimes and offenses not capital charged under clause 3 are not extra-territorial unless explicitly indicated otherwise in the statute Crime committed outside the U.S., can be charged only under clause 1 or 2 with the added terminal element But if committed domestically, can be charged under clause 3; no need for the terminal element Amendment aligns General Art 134 with the Military Extraterritorial Jurisdiction Act, which extends extraterritorial jurisdiction to all Title 18 non-capital offenses Intended to make UCMJ apply world-wide as Congress intended As of 3 August 2018 MTT Training Product 76 Child Pornography Retained in Art 134 to keep the service hook and avoid potential protected speech issues

The 1st amendment applies differently to Soldiers and what might be considered protected speech in civilian jurisdictions may not be protected in the military Keeping Child Pornography in Art 134 allows the military to proscribe more conduct As of 3 August 2018 MTT Training Product 77 Art 134 Extramarital Sexual Conduct Current (Adultery) MJA 2016 (1) Accused wrongfully had sexual intercourse with a certain person (2) At the time, the accused or other person was married to someone else; and (3) Terminal element As of 3 August 2018 (1) Accused wrongfully engaged in extramarital conduct as described in paragraph c(2) with a certain person (2) At the time, the Accused

knew that the Accused or other other person was married to someone else; and (3) Terminal element MTT Training Product 78 Terms Paragraph c(2) Extramarital Conduct: Any of the following acts engaged in by persons of the same or opposite sex: Genital to genital sexual intercourse Oral to genital sexual intercourse Anal to genital sexual intercourse Oral to anal sexual intercourse Legal separation order from a court of competent jurisdiction is an affirmative defense As of 3 August 2018 MTT Training Product 79 Scenario You are prosecuting a married female officer who is

accused of committing sexual acts with another married female officer. 1. Could you charge the officers with adultery under the current punitive articles? 2. What about the new offense? As of 3 August 2018 MTT Training Product 80 MISC. CHANGES Forcible sodomy and bestiality are deleted from MCM. Forcible sodomy covered under Art 120. Sexual act with an animal covered under Art 134. As of 3 August 2018 MTT Training Product 81 STATUTE OF LIMITATIONS As of 3 August 2018 MTT Training Product 82 Article 43, UCMJ Child abuse offenses:

Life of the child or 10 years after commission of the offense, whichever is longer Conforming amendments that list articles considered child abuse offenses Fraudulent enlistment: EM: Longer of period of enlistment or 5 years Officers: longer of period of appointment or 5 years DNA Evidence: If DNA implicates commission of offense punishable by more than one year confinement SoL begins to run upon identification As of 3 August 2018 MTT Training Product 83 LESSER INCLUDED OFFENSES As of 3 August 2018 MTT Training Product 84 Art 79 Conviction of LIO Current A lesser offense is necessarily included when:MJA 2016 a) Accused may be

found guilty of Accused may be a) All elements of found lesser guilty offense included in greater offense 1. Offense charged ofan Example: offense necessarily wrongful appropriation as an LIO of larceny 2. LIO included in the offense b) All elements of lesser offense are included in greater, at 3. Attempt to commitbut offense charged or element of an attempt to charged least one is a subset,

i.e. legally less serious commit either the offense 4. Attempt to commit LIO Example: unlawful entry as an LIO of burglary charged or an offense b) LIO defined as c) necessarily Mental element is a subset by being legally less serious 1. Offense necessarily included included therein Example: voluntary manslaughter as LIOoffense of premeditated in the charged 2. Any LIO so designated by murder regulation prescribed by the President c) LIO designated by regulation shall be reasonably included in the greater offense As of 3 August 2018

MTT Training Product 85 Appendix 12A As of 3 August 2018 MTT Training Product 87 QUESTIONS? As of 3 August 2018 MTT Training Product 89 MILITARY JUSTICE ACT OF 2016 Punitive Articles Practical Exercise Military Justice Legislation Training Team As of 3 August 2018 MTT Training Product 90 Model Specifications Art 93a: In that __ (personal jurisdiction data), a (commissioned) (warrant) (noncommissioned) (petty) officer, while in a position of authority over __, did, (at/on board-location) (subject-matter

jurisdiction data, if required), on or about ___, engage in a prohibited act, to wit: ___ with __, whom the accused (knew) (reasonably should have known) was a specially protected junior Servicemenber in initial active duty training. Art 121a: In that __ (personal jurisdiction data), did, (at/on boardlocation) (subject matter jurisdiction data, if required), on or about __, knowingly and with the intent to defraud, use a (debit card) (credit card) (access device, to wit:__) (that was stolen) (that was revoked, cancelled, or otherwise invalid) (without the authorization of __, a person whose authorization was required for such use), to obtain (money) (property) (services) (__) (of a value of about $__). As of 3 August 2018 MTT Training Product 91 Model Specifications Art 123: In that __ (personal jurisdiction data), did (at/on boardlocation), (subject matter jurisdiction data if required), (on or about __), intentionally access a government computer with an unauthorized purpose and thereby knowingly obtained (classified) (protected) information, to wit: __ from such government computer. Art 132: In that __ (personal jurisdiction data), did, (at/on board location) (subject matter jurisdiction data, if required), on or about __, with intent to discourage __ from (reporting a criminal offense) (making a protected communication), wrongfully [(took) (threatened to take) an adverse personnel action against __, to wit: __] [(withheld) (threatened to withhold) a favorable personnel action with respect to __, to wit: __]. As of 3 August 2018 MTT Training Product 92

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