R 241725Z DEC 14
MARADMIN 681/14
MSGID/GENADMIN/CMC WASHINGTON DC JA//
SUBJ/PROCEDURAL CHANGES TO AND TRAINING REQUIREMENTS FOR ARTICLE 32, UNIFORM CODE OF MILITARY JUSTICE, PRELIMINARY HEARINGS//
REF/A/DOC/FY14 NDAA//
REF/B/DOC/FY15 NDAA//
REF/C/MSG/SECNAV WASHINGTON DC/221805ZDEC14//
REF/D/DOC/CMC WASHINGTON DC JA/31AUG1999//
REF/E/DOC/CMC WASHINGTON DC JA/12DEC2013//
NARR/REF (A) IS THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2014, REF (B) IS THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2015, REF (C) IS ALNAV 086/14 IMPLEMENTING NEW ARTICLE 32, UCMJ, PRELIMINARY HEARING PROCEDURES, REF (D) IS MCO P5800.16A W/CHANGES 1-7, MARINE CORPS MANUAL FOR LEGAL ADMINISTRATION (SHORT TITLE: LEGADMINMAN), AND REF (E) IS MCO 5430.2, ROLES AND RESPONSIBILITIES OF THE STAFF JUDGE ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS//
POC/A. B. WISSMAN/LTCOL/JMJ/TEL: 703-693-9005/EMAIL: ANGELA.WISSMAN@USMC.MIL//
POC/M. E. NEELY/CAPT/JCD/TEL: 703-614-1318/EMAIL: MATTHEW.E.NEELY@USMC.MIL//
GENTEXT/REMARKS/1. PURPOSE. THE PURPOSE OF THIS MARADMIN IS TO ANNOUNCE IMPLEMENTATION OF NEW PROCEDURES FOR ARTICLE 32, UNIFORM CODE OF MILITARY JUSTICE (UCMJ), PRELIMINARY HEARINGS AND REQUIRED TRAINING FOR ALL MARINE JUDGE ADVOCATES AND NON-JUDGE ADVOCATE PRELIMINARY HEARING OFFICERS.
2. BACKGROUND
A. REFERENCE (A), ENACTED ON 26 DECEMBER 2013, CONTAINED MORE THAN THIRTY CHANGES TO THE MILITARY JUSTICE PROCESS. ON 19 DECEMBER 2014, THE PRESIDENT SIGNED REFERENCE (B), SECTION 531 OF WHICH AMENDS THOSE PARTS OF SECTION 1702 OF REFERENCE (A) RELATED TO ARTICLE 32, UCMJ, PRELIMINARY HEARINGS. ON 22 DECEMBER 2014, THE SECRETARY OF THE NAVY ISSUED REFERENCE (C), WHICH PROVIDES DIRECTION TO THE NAVY AND MARINE CORPS FOR IMPLEMENTATION OF THOSE PARTS OF REFERENCES (A) AND (B) PERTAINING TO ARTICLE 32, UCMJ, PRELIMINARY HEARINGS AND PROMULGATES TRAINING REQUIREMENTS RELATED TO THOSE PROCEEDINGS.
B. SECTION 1702 OF REFERENCE (A) SIGNIFICANTLY MODIFIED ARTICLE 32, UCMJ. THE MODIFICATIONS LIMIT THE PURPOSE AND SCOPE OF THE PRELIMINARY HEARING AND ALLOW ALL VICTIMS, MILITARY OR CIVILIAN, TO DECLINE TO TESTIFY AT AN ARTICLE 32, UCMJ, PRELIMINARY HEARING. IN ACCORDANCE WITH REFERENCES (A) THROUGH (C), ARTICLE 32, UCMJ, PRELIMINARY HEARINGS WILL BE LIMITED TO AN EXAMINATION OF THOSE MATTERS NECESSARY TO ALLOW THE PRELIMINARY HEARING OFFICER TO DETERMINE WHETHER THE CHARGES ARE SUPPORTED BY PROBABLE CAUSE AND WHETHER THE ACCUSED COMMITTED THEM, WHETHER A COURT-MARTIAL WOULD HAVE JURISDICTION OVER THE ACCUSED AND THE OFFENSE, AND WHETHER THE FORM OF THE CHARGES IS CORRECT, AND TO ALLOW THE PRELIMINARY HEARING OFFICER TO RECOMMEND DISPOSITION. ABSENT EXCEPTIONAL CIRCUMSTANCES, THE PRELIMINARY HEARING OFFICER MUST BE A JUDGE ADVOCATE IN THE GRADE OF O-4 OR HIGHER AND IN A GRADE EQUAL TO OR SENIOR TO THE TRIAL AND DEFENSE COUNSEL DETAILED TO THE CASE. AS AN EXCEPTION, A JUDGE ADVOCATE BELOW THE GRADE OF O-4 MAY BE DETAILED AS A PRELIMINARY HEARING OFFICER IF HE OR SHE HAS AT LEAST SIX MONTHS EXPERIENCE AS A TRIAL OR DEFENSE COUNSEL; HOWEVER, FOR CASES CLASSIFIED AS SPECIAL VICTIM CASES AND/OR INVOLVING SEXUAL ASSAULT OFFENSES, SEE PARAGRAPH 1106 OF REFERENCE (D) FOR FURTHER REQUIREMENTS.
3. ACTION
A. PURSUANT TO REFERENCES (C) THROUGH (E), AND IN ORDER TO ENSURE PROPER EXECUTION OF THE STATUTORY AMENDMENTS TO ARTICLE 32, UCMJ, ALL ACTIVE COMPONENT AND RESERVE COMPONENT JUDGE ADVOCATES, AND PRELIMINARY HEARING OFFICERS WHO ARE NOT JUDGE ADVOCATES, ARE REQUIRED TO RECEIVE TRAINING IN THE CHANGES TO THE LAW. THIS TRAINING ENSURES ALL JUDGE ADVOCATES AND ALL PRELIMINARY HEARING OFFICERS UNDERSTAND THE COMPLEXITIES OF, AND THE CHANGES TO, ARTICLE 32, UCMJ.
B. NO JUDGE ADVOCATE MAY PARTICIPATE IN AN ARTICLE 32, UCMJ, PRELIMINARY HEARING, PROVIDE ADVICE TO A CONVENING AUTHORITY CONCERNING A PRELIMINARY HEARING, INCLUDING WHETHER TO CONDUCT A HEARING, OR PROVIDE ARTICLE 34, UCMJ, ADVICE FOLLOWING A PRELIMINARY HEARING CONDUCTED ON OR AFTER 26 DECEMBER 2014, UNLESS HE OR SHE HAS COMPLETED THE REQUIRED TRAINING AND REVIEWED REFERENCE (C), THIS MARADMIN, AND THE NAVAL JUSTICE SCHOOL’S ARTICLE 32, UCMJ, PRELIMINARY HEARING OFFICER’S GUIDE. ADDITIONALLY, NO NON-JUDGE ADVOCATE MAY CONDUCT AN ARTICLE 32, UCMJ, PRELIMINARY HEARING ON OR AFTER 26 DECEMBER 2014 UNLESS HE OR SHE HAS COMPLETED THESE REQUIREMENTS. FOR CIVILIAN COUNSEL REPRESENTING AN ACCUSED AT A PRELIMINARY HEARING, THE PRELIMINARY HEARING OFFICER WILL ENSURE THAT THE CIVILIAN COUNSEL HAS BEEN PROVIDED ACCESS TO THE REQUIRED TRAINING MATERIALS PRIOR TO THE HEARING.
C. FOR PRELIMINARY HEARING OFFICERS APPOINTED PRIOR TO THE RELEASE OF THIS MARADMIN, BUT WHO WILL CONDUCT A HEARING ON OR AFTER 26 DECEMBER 2014, A NEW APPOINTING ORDER IN COMPLIANCE WITH REFERENCES (A) THROUGH (C) IS REQUIRED.
4. COORDINATING INSTRUCTIONS
A. THE ARTICLE 32, UCMJ, TRAINING MUST BE COMPLETED PRIOR TO PARTICIPATING IN OR ADVISING ON AN ARTICLE 32, UCMJ, PRELIMINARY HEARING. ALL JUDGE ADVOCATES MUST COMPLETE THE REQUIRED TRAINING BY THE FOLLOWING DATES:
(1) 15 JANUARY 2015 FOR ALL STAFF JUDGE ADVOCATES, TRIAL COUNSEL, DEFENSE COUNSEL, AND VICTIMS’ LEGAL COUNSEL;
(2) 30 JANUARY 2015 FOR ALL OTHER ACTIVE DUTY JUDGE ADVOCATES; AND
(3) 28 FEBRUARY 2015 FOR RESERVE COMPONENT JUDGE ADVOCATES NOT ON ACTIVE DUTY.
B. TRAINING FOR NON-JUDGE ADVOCATE PRELIMINARY HEARING OFFICERS WILL BE DIRECTED IN SPECIFIC APPOINTING ORDERS.
C. AS SOON AS PRACTICABLE, STAFF JUDGE ADVOCATES SHOULD ENSURE THAT ALL OF THEIR CONVENING AUTHORITIES HAVE BEEN BRIEFED ON THE NEW PROCEDURES FOR CONDUCTING ARTICLE 32, UCMJ, PRELIMINARY HEARINGS. A SAMPLE BRIEF IS LOCATED AT: HTTP: <SLASH><SLASH> WWW.HQMC.MARINES.MIL <SLASH> SJA <SLASH> JADFORMS.ASPX.
D. THE REQUIRED JUDGE ADVOCATE AND HEARING OFFICER’S TRAINING VIDEO AND THE HEARING OFFICER’S GUIDE ARE LOCATED AT: HTTPS: <SLASH><SLASH> NJSONLINE.ARMY.MIL. A NAVAL JUSTICE SCHOOL ONLINE ACCOUNT IS REQUIRED TO ACCESS THIS SITE. FOR ACCESS, CONTACT CAPT NICHOLAS S. HENRY, USMC, AT NICHOLAS.S.HENRY1@NAVY.MIL.
E. REQUIRED FORMS AND AN APPOINTING ORDER ARE LOCATED AT: HTTP: <SLASH><SLASH> WWW.HQMC.MARINES.MIL <SLASH> SJA <SLASH> JADFORMS.ASPX.
F. ALL ACTIVE AND RESERVE COMPONENT JUDGE ADVOCATES MUST REPORT COMPLETION OF THE REQUIRED TRAINING TO THE COMMUNITY DEVELOPMENT, STRATEGY, AND PLANS BRANCH (JCD), JUDGE ADVOCATE DIVISION, POC LISTED ABOVE VIA THE APPROPRIATE JUDGE ADVOCATE CHANNELS.
5. RELEASE AUTHORIZED BY MAJOR GENERAL JOHN R. EWERS, JR., STAFF JUDGE ADVOCATE TO THE COMMANDANT OF THE MARINE CORPS.//