R 051238Z JUL 13
UNCLASSIFIED/
MARADMIN 336/13
MSGID/GENADMIN/CMC WASHINGTON DC JA//
SUBJ/DETAILING OF TRIAL COUNSEL, DEFENSE COUNSEL, AND ARTICLE 32, UCMJ, INVESTIGATING OFFICERS//
REF/A/MSGID: TITLE 10 U.S.C. SECTION 5041-5043//
REF/B/MSGID: U.S. NAVY REGULATIONS, 1990//
REF/C/MSGID: TITLE 10 U.S.C. SECTION 806//
REF/D/MSGID: TITLE 10 U.S.C. SECTION 5046//
REF/E/MSGID: SECNAVINST 5430.27D//
REF/F/MSGID: JAGINST 5800.7F (JAGMAN)//
REF/G/MSGID: R.C.M. 405(D), MCM, (2012 ED.)//
REF/H/MSGID: R.C.M. 707, MCM, (2012 ED.)//
REF/I/MSGID: TITLE 10 U.S.C. SECTION 810 (ARTICLE 10, UCMJ)//
REF/J/MSGID: R.C.M. 502(D), MCM, (2012 ED.)//
REF/K/MSGID: MCO P5800.16A (LEGADMINMAN)//
NARR/REF (A) IS HEADQUARTERS, MARINE CORPS DUTIES AND COMPOSITION AND CMC STATUTORY AUTHORITY, REF (B) IS U.S. NAVY REGULATIONS, REF (C) IS JUDGE ADVOCATE ASSIGNMENT AND SUPERVISION STATUTORY AUTHORITY, REF (D) IS SJA TO CMC STATUTORY AUTHORITY, REF (E) IS RESPONSIBILITY OF THE JUDGE ADVOCATE GENERAL OF THE NAVY AND THE STAFF JUDGE ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS FOR SUPERVISION AND PROVISION OF CERTAIN LEGAL SERVICES, REF (F) IS MANUAL OF THE JUDGE ADVOCATE GENERAL, REF (G) IS PERSONNEL INVOLVED IN PRETRIAL INVESTIGATIONS UNDER ARTICLE 32, UCMJ, REF (H) IS SPEEDY TRIAL PROVISIONS, REF (I) IS RESTRAINT OF PERSONS CHARGED WITH OFFENSES, REF (J) IS QUALIFICATIONS AND DUTIES OF COUNSEL ASSIGNED TO COURTS-MARTIAL, REF (K) IS MARINE CORPS MANUAL FOR LEGAL ADMINISTRATION.//
POC/M. K. JAMISON/COL/JAD/TEL:703-614-4250//
GENTEXT/REMARKS/1. GENERAL. THIS MESSAGE ANNOUNCES THE UPDATE AND CONTINUATION OF THE POLICY ESTABLISHED IN MCBUL 5813 OF 2 JULY 2012. THIS POLICY ENSURES THAT JUDGE ADVOCATES WHO ARE DETAILED AS TRIAL COUNSEL, DEFENSE COUNSEL, AND ARTICLE 32, UNIFORM CODE OF MILITARY JUSTICE (UCMJ), INVESTIGATING OFFICERS POSSESS THE APPROPRIATE EXPERTISE TO PERFORM THEIR DUTIES.
2. BACKGROUND. THIS MARADMIN IS ISSUED IN FURTHERANCE OF REFERENCES (A) THROUGH (E). PURSUANT TO REFERENCES (A) AND (B), THE COMMANDANT OF THE MARINE CORPS IS RESPONSIBLE FOR THE ADMINISTRATION AND DISCIPLINE OF THE FORCE. PURSUANT TO REFERENCES (C) THROUGH (E), THE STAFF JUDGE ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS (SJA TO CMC) EXERCISES SUPERVISION OVER THE ADMINISTRATION OF MILITARY JUSTICE WITHIN THE MARINE CORPS.
3. DETAILING POLICY AND STANDARDS. IN ACCORDANCE WITH SECTION 0130 OF REFERENCE (F), MARINE CORPS JUDGE ADVOCATES MAY BE DETAILED AS TRIAL COUNSEL, ASSISTANT TRIAL COUNSEL, DEFENSE COUNSEL, AND ASSISTANT DEFENSE COUNSEL, BY THEIR COMMANDING OFFICER, OFFICER-IN-CHARGE (OIC), OR DESIGNEE. IN ACCORDANCE WITH REFERENCE (G), ANY COMMISSIONED OFFICER IN THE GRADE OF O-4 OR ABOVE, OR ANY JUDGE ADVOCATE, MAY BE DETAILED AS AN INVESTIGATING OFFICER TO CONDUCT AN ARTICLE 32, UCMJ, PRETRIAL INVESTIGATION. UNDER THE AUTHORITY ESTABLISHED IN REFERENCES (A) THROUGH (E), THE FOLLOWING ADDITIONAL POLICIES AND STANDARDS ARE HEREBY ESTABLISHED FOR DETAILING JUDGE ADVOCATES AS COUNSEL AND ARTICLE 32, UCMJ, INVESTIGATING OFFICERS:
A. DETAILING AUTHORITIES WILL CONSIDER THE FOLLOWING FACTORS WHEN DETAILING TRIAL COUNSEL, DEFENSE COUNSEL, OR ARTICLE 32, UCMJ, INVESTIGATING OFFICERS: EXPERIENCE, EDUCATION, TRAINING, ABILITY, EXISTING CASE LOAD, PROFESSIONAL RESPONSIBILITIES, GRADE, AND THE INDIVIDUAL CHARACTERISTICS OF THE CASE (E.G., NATURE OF THE OFFENSE, SPECIAL VICTIMS, EXPERT WITNESSES, AGGRAVATING CIRCUMSTANCES, MEDIA, AND/OR PUBLIC SCRUTINY, ETC.). THE DETAILING OF ASSISTANT TRIAL AND DEFENSE COUNSEL TO CONTESTED AND/OR COMPLEX CASES IS ENCOURAGED. DETAILING AUTHORITIES MUST REMAIN COGNIZANT OF POTENTIAL CONFLICTS OF INTEREST WHEN CONSIDERING THE DETAILING OF JUDGE ADVOCATES, ESPECIALLY THOSE JUDGE ADVOCATES WHOSE NORMAL DUTIES ARE AS A COMMAND LEGAL ADVISOR (E.G., SJA, DSJA) OR AS AN OIC OF AN ORGANIZATION PROVIDING LEGAL SERVICES. DETAILING AUTHORITIES MUST REMAIN COGNIZANT OF THE SPEEDY TRIAL REQUIREMENT IN REFERENCE (H) AND DUE DILIGENCE REQUIREMENT IN REFERENCE (I).
B. DETAILING TRIAL COUNSEL.
(1) DETAILING WILL BE COMPLETED IN WRITING AND MADE PRIOR TO PREFERRAL OF CHARGES. UPON PREFERRAL, THE DETAILING AUTHORITY WILL PROVIDE A COPY OF THE DETAILING MEMORANDUM TO THE ACCUSED'S SUMMARY COURT-MARTIAL CONVENING AUTHORITY, THE RESPONSIBLE STAFF JUDGE ADVOCATE, COGNIZANT DEFENSE SECTION, AND THE DETAILED JUDGE ADVOCATE'S OIC. SHOULD ADDITIONAL COUNSEL BE DETAILED, OR THE DETAILED TRIAL COUNSEL RELIEVED, A SUBSEQUENT DETAILING MEMORANDUM WILL BE PRODUCED AND DISTRIBUTED.
(2) DETAILING AUTHORITY FOR TRIAL COUNSEL MAY BE DELEGATED; HOWEVER, SUCH DELEGATION MUST BE IN WRITING AND MAY NOT BE DELEGATED TO ANY OFFICER BELOW THE GRADE OF O-4.
(3) NO JUDGE ADVOCATE MAY BE DETAILED AS TRIAL COUNSEL, AS DEFINED IN REFERENCE (J), TO AN ARTICLE 32, UCMJ, PRETRIAL INVESTIGATION, OR GENERAL COURT-MARTIAL, UNLESS HE OR SHE HAS SERVED IN A TRIAL COUNSEL BILLET FOR AT LEAST SIX MONTHS OR HAS SERVED IN A MILITARY JUSTICE BILLET FOR AT LEAST 18 MONTHS (I.E. TRIAL COUNSEL, DEFENSE COUNSEL, OR MILITARY JUDGE). ADDITIONALLY, NO JUDGE ADVOCATE MAY BE DETAILED AS TRIAL COUNSEL IN ANY CASE THAT INVOLVES ALLEGATIONS OF VIOLATIONS OF UCMJ ARTICLES 118, 119, 119A, 120, 120B, 120C, 125 (WITH A CHILD OR FORCIBLE), 134 (CHILD PORNOGRAPHY), OR 80 (ATTEMPTS TO COMMIT THE PREVIOUSLY LISTED ARTICLES IN THIS PARAGRAPH) UNLESS THAT JUDGE ADVOCATE HAS SERVED AS A TRIAL COUNSEL OR ASSISTANT TRIAL COUNSEL IN AT LEAST ONE CONTESTED CASE (I.E., A CASE IN WHICH THE ACCUSED PLED NOT GUILTY TO AT LEAST ONE CHARGED OFFENSE AND THE FINDER OF FACT ENTERED FINDINGS ON THAT OFFENSE) INVOLVING ONE OF THE OFFENSES IDENTIFIED IN THIS PARAGRAPH.
(4) IN ALL CASES THAT INVOLVE ALLEGATIONS OF UCMJ VIOLATIONS LISTED IN PARAGRAPH 3B(3), THE DETAILING LETTER SHALL DIRECT TRIAL COUNSEL TO PROVIDE AN INITIAL CASE ASSESSMENT TO AND SEEK ADVICE FROM THEIR REGIONAL HIGHLY QUALIFIED EXPERT (HQE) AS SOON AS POSSIBLE, BUT NO LATER THAN 10 DAYS AFTER BEING DETAILED TO THE CASE. IF THEIR HQE IS UNAVAILABLE, PROVIDE THE INITIAL CASE ASSESSMENT TO AND SEEK ADVICE FROM THE REGIONAL TRIAL COUNSEL WHO WILL FACILITATE COORDINATION WITH AN HQE FROM ANOTHER REGION. TRIAL COUNSEL ARE ENCOURAGED TO CONSULT WITH THEIR HQE ON ANY OTHER COMPLEX LITIGATION MATTER.
C. DETAILING DEFENSE COUNSEL. THE CHIEF DEFENSE COUNSEL (CDC) OF THE MARINE CORPS IS DESIGNATED AS THE OIC OF THE DEFENSE SERVICES ORGANIZATION (DSO) AND AS SUCH HAS DETAILING AUTHORITY AND INDIVIDUAL MILITARY COUNSEL (IMC) APPROVAL AUTHORITY FOR DEFENSE COUNSEL PER REFERENCES (F) AND (K). THE CDC MAY ESTABLISH DETAILING CRITERIA AND DELEGATE DETAILING AND IMC APPROVAL AUTHORITY TO SUBORDINATES WITHIN THE DSO, SUBJECT TO THE RESTRICTIONS SET FORTH IN REFERENCE (G).
D. DETAILING ARTICLE 32, UCMJ, INVESTIGATING OFFICERS.
(1) AN OFFICER BELOW THE GRADE OF O-4 MAY ONLY BE DETAILED AS AN ARTICLE 32, UCMJ, INVESTIGATING OFFICER IF HE OR SHE IS A JUDGE ADVOCATE CERTIFIED PER REFERENCE (J), AND HAS AT LEAST SIX MONTHS OF EXPERIENCE AS A TRIAL OR DEFENSE COUNSEL.
(2) IN ADDITION TO THE REQUIREMENTS IN PARAGRAPH 4D(1) AN OFFICER BELOW THE GRADE OF O-4 MAY NOT BE DETAILED AS AN ARTICLE 32, UCMJ, INVESTIGATING OFFICER TO INVESTIGATIONS INVOLVING THE OFFENSES LISTED IN PARAGRAPH 3B(3), UNLESS HE OR SHE HAS ACTED AS A TRIAL COUNSEL, ASSISTANT TRIAL COUNSEL, DEFENSE COUNSEL, ASSOCIATE DEFENSE COUNSEL, OR ASSISTANT DEFENSE COUNSEL IN AT LEAST ONE CONTESTED CASE INVOLVING AN OFFENSE LISTED IN PARAGRAPH 3B(3).
(3) IN COMPLEX CASES, DETAILING AUTHORITIES SHOULD CONSIDER DETAILING, AS AVAILABLE, A JUDGE ADVOCATE CERTIFIED AS A MILITARY JUDGE AS AN ARTICLE 32, UCMJ, INVESTIGATING OFFICER.
4. SUPPORTED AND SUPPORTING RELATIONSHIP. IF THE DETAILING REQUIREMENTS EXCEED A DETAILING AUTHORITY'S ORGANIC CAPABILITY, CONVENING AUTHORITIES MAY REQUEST SUPPORT FROM OTHER LEGAL SUPPORT PROVIDERS. IF UNSUCCESSFUL IN OBTAINING QUALIFIED TRIAL COUNSEL SUPPORT, DETAILING AUTHORITIES SHALL IMMEDIATELY FORWARD THE MATTER TO THE COMMANDANT OF THE MARINE CORPS (JA) FOR RESOLUTION.
5. APPLICABILITY. THIS MARADMIN IS APPLICABLE TO THE TOTAL FORCE.
6. NON-ENFORCEABILITY OF LEGAL RIGHT. NOTHING IN THIS MARADMIN CREATES A RIGHT OR BENEFIT, SUBSTANTIVE OR PROCEDURAL, ENFORCEABLE AT LAW OR EQUITY BY A PARTY AGAINST THE UNITED STATES, ITS DEPARTMENTS, AGENCIES OR INSTRUMENTALITIES, ITS OFFICERS OR EMPLOYEES, OR ANY OTHER PERSON.
7. RELEASE AUTHORIZED BY MAJGEN V. ARY, STAFF JUDGE ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS.//