Congressional Record: April 27, 1995 (Senate) - Pages S5805 - S5843
From the Congressional Record Online via GPO Access - DOCID:cr27ap95-42: Part 1
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. THURMOND (for himself and Mr. Nunn) (be request):
S. 727. A bill to authorize appropriations for fiscal year 1996 for
military activities of the Department of Defense, to prescribe military
personnel strengths for fiscal year 1996, and for other purposes; to
the Committee on Armed Services.
the national defense authorization act for fiscal year 1996
Mr. THURMOND. Mr. President, by request, for myself and the senior
Senator from Georgia [Mr. Nunn], I introduce, for appropriate
reference, a bill to authorize appropriations for fiscal year 1996 for
military activities of the Department of Defense, to prescribe military
personnel strength for fiscal year 1996, and for other purposes.
I ask unanimous consent that a letter of transmittal requesting
consideration of the legislation and a section-by-section analysis
explaining its purpose be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
General Counsel of the
Department of Defense,
Washington, DC, April 20, 1995.
Hon. Albert Gore,
President of the Senate,
Washington, DC.
Dear Mr. President: The Department of Defense proposes the
enclosed draft of legislation, ``To authorize appropriations
for fiscal year 1996 for military activities of the
Department of Defense, to prescribe military personnel
strengths for fiscal year 1996, and for other purposes.''
This legislative proposal is part of the Department of
Defense legislative program for the 104th Congress and is
needed to carry out
[[Page S5806]] the President's budget plans for fiscal year
1996. The Office of Management and Budget advises that there
is no objection to the presentation of this proposal to the
Congress and that its enactment would be in accord with the
program of the President.
This bill provides management authority for the Department
of Defense in fiscal year 1996 and makes several changes to
the authorities under which we operate. These changes are
designed to permit a more efficient operation of the
Department of Defense.
Enactment of this legislation is of great importance to the
Department of Defense and the Department urges its speedy and
favorable consideration.
Sincerely,
Judith A. Miller.
____
National Defense Authorization Act for Fiscal Year 1996
section-by-section analysis
Title I--Procurement
Authorization of Appropriations
Section 101. Army
Section 102. Navy and Marine Corps
Section 103. Air Force
Section 104. Defense-wide activities
Section 105. Defense Inspector General
Section 106. Chemical demilitarization program
Section 107. Defense health program
Sections 101 through 107 provide procurement authorization
for the Military Departments and for Defense-wide
appropriations in amounts equal to the budget authority
included in the President's budget for fiscal years 1996 and
1997.
Section 108. Repeal of requirement for separate budget
request for procurement of reserve equipment
Section 108 repeals the provisions of section 114(e) of
title 10, United States Code, requiring a separate budget
request for the procurement of Reserve equipment.
Title II--Research, Development, Test, and Evaluation
Section 201. Authorization of appropriations
Section 201 provides for the authorization of each of the
research, development, test, and evaluation appropriations
for the Military Departments and Defense Agencies in amounts
equal to the budget authority included in the President's
budget for fiscal years 1996 and 1997.
Title III--Operation and Maintenance
Subtitle A--Authorization of Appropriations
Section 301. Operation and maintenance funding
Section 301 provides for authorization of the operation and
maintenance appropriations of the Military Departments and
Defense-wide appropriations in amounts equal to the budget
authority included in the President's budget for fiscal years
1996 and 1997.
Section 302. Working capital funds
Section 302 authorizes appropriations for the Defense
Business Operations Fund and the National Defense Salified
Fund in amounts equal to the budget authority included in the
President's budget for fiscal years 1996 and 1997.
Section 303. Civilian Marksmanship Program fund
Section 303 amends the provisions of section 4308 and 4313
of title 10, United States Code, relating to the Civilian
Marksmanship Program, to reflect the President's Budget
proposal that the Program be funded exclusively from
reimbursements received in the execution of the program.
Section 304. Repeal of limitations on activities of Defense
Business Operations Fund
Section 304 amends section 316(b) of the National Defense
Authorization Act for Fiscal Years 1992 and 1993 to repeal
limitations on the activities of the Defense Business
Operations Fund
Section 305. Amendments relating to the Ready Reserve Force
Component of the Ready Reserve Fleet
Section 305 amends the provisions of section 2218 of title
10, United States Code, relating to the National Defense
Sealift Fund, to reflect the funding for the Ready Reserve
Component of the Fleet by the Department of Defense as
requested in the President's budget.
Subtitle B--Reserve Component
Section 321. Reimbursement of pay and allowances and
accountability of Reservists supporting cooperative
threat reduction with States of the Former Soviet Union.
This section amends section 1206 of the National Defense
Authorization Act for Fiscal Year 1995, which authorizes
funds for the execution of the Cooperative Threat Reduction
Act of 1993 (title XII of Public Law 103-160) by adding two
new subsections.
New subsection (c) would permit funds appropriated to
execute programs authorized by the Cooperative Threat
Reduction Act to be utilized to reimburse the military
personnel appropriations accounts for the pay and allowances
paid to reserve component personnel for service while engaged
in any program authorized by this Act. The utilization of
Reserve component personnel, particularly in expansion of
military-to-military and defense contacts, is particularly
advantageous.
Permitting these funds to be used to reimburse the active
military appropriations accounts removes a significant
resource impediment to increasing the opportunities for
ordering individual reserves to active duty with their
consent as specified in section 513 of the National Defense
Authorization Act for Fiscal Year 1995. A similar provision
was passed by the 103rd Congress in section 1316 (a) of the
National Defense Authorization Act for Fiscal Year 1995 for
Military-to-Military Contracts and Comparable Activities.
New subsection (d) would exempt members of a reserve
component participating in activities or programs specified
in the Cooperative Threat Reduction Act of 1993 who served
over 180 days from counting against the authorized end
strength for members of the armed forces on active duty under
section 115(a)(1) of title 10 and against the senior grade
strength limitations of sections 517 and 523 of title 10.
Approval of this exemption from end strength and senior grade
strength limitations removes an impediment to increasing the
opportunities for ordering individual reserves to active duty
with their consent as specified in section 513 of the
National Defense Authorization Act for Fiscal Year 1995. A
similar provision was passed by the 103rd Congress in section
1316 (c) of the National Defense Authorization Act for Fiscal
Year 1995 for Military-to-Military Contacts and Comparable
Activities.
There are no additional costs associated with enacting this
legislation.
Section 322. Authority for Department of Defense funding for
National Guard participation in joint exercises with the
Army and Air Force for disaster and emergency assistance
This section would authorize the Secretary of the Army and
the Secretary of the Air Force to provide for personnel of
the National Guard, using funds appropriated for National
Guard training exercises, to participate in joint exercises
with the Army and Air Force to train for disaster and
emergency response, and would thus allow these personnel to
participate in such exercises in a Federally paid (title 32)
status under state authority.
Under current law, Department of Defense funding for the
National Guard may not be used for training the National
Guard for disaster and emergency response. Funding for this
training is the responsibility of the states and FEMA, and
such training must be done in a state active duty status.
This provision would authorize a limited exception to this
allocation of responsibility by permitting use of Department
of Defense funds and title 32 status for the Guard when
engaged in joint exercises with the Army or Air Force for
disaster and emergency response training. Disaster and
emergency response training and exercises of the National
Guard when not conducted in conjunction with the Army or the
Air Force would continue to be a state and FEMA
responsibility.
This amendment will ensure that National Guard personnel
participating in joint exercises with members of the other
components of their armed forces are eligible for the same
protections and benefits as their counterparts from the Army
Reserve, Air Force Reserve, and Regular components with whom
they are participating. It will also avoid situations where
lack of state or FEMA funds preclude participation by Guard
units in joint exercises and thereby undermine the efficacy
of those exercises.
Subtitle C--Other Matters
Section 331. Aviation and vessel war risk insurance
The purpose of this legislation is to provide a means for
rapid payment of claims and the rapid reimbursement of the
insurance funds to protect commercial carriers assisting the
Executive Branch from catastrophic losses associated with the
destruction or damage to aircraft or ships while supporting
the national interests of the United States. Allowing the
Department of Defense to transfer any and all available funds
will allow the United States, in these two vital reinsurance
programs, to match standard commercial insurance practice for
the timely payment required by financial arrangements common
in the transportation industry today. Reporting and the
requirements for supplemental appropriations, if any, ensures
Congressional oversight at all stages.
Subsections (a) and (b) of the proposed legislation set
forth the short title and the findings and purposes,
respectively.
Subsection (c) of the proposed legislation amends section
44305 of title 49, United States Code, by adding a new
subsection (c).
Subsection (c)(1) allows transfer of any funds available to
the Department of Defense, regardless of the purpose of those
funds. Although other authorities may exist to transfer
funds, limitations as to amounts and priorities make these
authorities insufficient to rapidly respond to the
obligations of the Department of Defense under the current
law, especially if contingencies or war-time conditions
exist. Proposed language would not distinguish between types
of insurance or risk, so long as the Federal Aviation
Administration had issued a policy covering the risk. The
language would not limit the authority to a specific fiscal
year, but would be ongoing without need for reenactment
periodically by Congress. Such Congressional oversight is
already in place through the reauthorization of the Aviation
Insurance Program, next scheduled to take place in 1997.
Subsection (c)(2) provides specific time limits with which
the Secretary of Defense must pay claims and reimburse the
Federal Aviation Administration. Notification to Congress and
the 30 day delay before transfer
[[Page S5807]] required in other statutes is waived. The most
important issue for the air carriers is the replacement of
the hull so that they may continue operations, including
supporting the requesting agency, without idling crews or
having to lay off personnel due to the lack of airframes. A
longer time frame is provided for other claims, such as
liability to third parties, as normal claims procedures can
adequately protect their interests.
Subsection (c)(3) requires reports to Congress within 30
days of loss for amounts in excess of one million dollars,
with periodic updates to ensure Congress is aware of amounts
being transferred and paid out under the chapter 443 program.
As supplemental appropriations may be necessary, Congress
will have sufficient information on which to base a decision
regarding the supplemental appropriations.
Subsection (d) of the proposed legislation amends section
1205 of the Merchant Marine Act, 1936, (46 App. U.S.C.
Sec. 1285) by adding a new subsection 9c).
Subsection (c)(1) authorizes the Secretary of Defense to
transfer funds available to the Department to pay claims by
contractors, for the damage or loss of vessels and death or
injury to personnel, insured pursuant to Title XII of the
Merchant Marine Act, 1936, or loss or damage associated
therewith. Proposed language would not distinguish between
types of insurance or risk, so long as the Maritime
Administration had issued a policy covering the risk. The
language would not limit the authority to a specific fiscal
year, but would be ongoing without need for reenactment
periodically by Congress. Such Congressional oversight is
already in place through the
reauthorization of the Vessel War Risk Insurance Program,
next scheduled to take place before the 30 June 1995
expiration (46 App. U.S.C. Sec. 1294).
Subsection (c)(2) provides specific time limits within
which the Secretary of Defense must reimburse the Secretary
of Transportation.
Subsection (c)(3) requires reports to Congress on a
periodic basis for claims paid in amounts in excess of one
million dollars to ensure Congress is aware of amounts being
transferred and paid out under the Title XII program. As
supplemental appropriations may be necessary, Congress will
have sufficient information on which to base a decision
regarding the supplemental appropriations.
The addition of subsection (c) to section 44305 of title
49, United States Code, and subsection (c) to section 1205 of
the Merchant Marine Act, 1936, (46 App. U.S.C. Sec. 1285)
would allow the Department of Defense to rapidly pay claims
resulting from damages or injuries caused by risks covered by
the respective programs as a consequence of providing
transportation to the United States when commercial insurance
companies refuse to cover such risks on reasonable terms and
conditions. The requirement to reimburse the Federal Aviation
Administration or the Maritime Administration already exists;
however, the only method for payment currently available may
involve requesting supplemental appropriations from Congress.
Such a process historically has taken six months or longer.
Many air carriers have indicated their financial obligations
may not allow them to continue to support the United States
if rapid payment for losses cannot be made. Commercial
aircraft insurance policies and practice require payment in
less than 30 days when cause is not an issue, usually within
72 hours.
If enacted, this legislation would not result in an
increase in the budgetary requirements of the Department of
Defense.
Section 332. Testing of theater missile defense interceptors
The purpose of this legislation is to eliminate the
requirement to attempt complex, multi-shot-engagement
scenarios
with relatively immature Engineering Manufacturing
Development hardware when these same scenarios must be
performed with production-representative hardware during
the Initial Operational Test and Evaluation (IOT&E) phase.
The requirement to demonstrate interceptor performance
under operationally realistic conditions with production-
representative hardware already exists. The premature
duplication of this testing will only add greater technical
complexity, cost, and risk to the program and provide little
if any technical value.
Theater Missile Defense (TMD) interceptor performance will
be performed during the Initial Operational Test and
Evaluation (IOT&E) phase and results reported to Congress
prior to the system being allowed to enter production. The
Director of Operational Test and Evaluation, Office of the
Secretary of Defense, will prepare and submit a Beyond Low-
Rate Initial Production Report. This report will confirm that
adequate testing, including multi-shot scenarios, has been
completed. This testing must be conducted in operational
environments and scenarios, consistent with conditions that
the interceptor will be expected to operate in when fielded.
Section 333. Authority to assign overseas school personnel to
domestic schools and vice versa
This section would authorize the Secretary of Defense to
assign personnel of either the school system established
under section 2164 of title 10 or the school system
established by the Defense Dependents' Education Act of 1968
(title XIV of the Education Amendments of 1978; 20 U.S.C. 921
et seq.) to provide administrative, logistical, personnel,
and other support services to the other system, either in
addition to, or in place of, their normal duties. Such
assignments may be for the period prescribed by the
Secretary.
Section 334. Authorization for expenditure of O&M and
procurement funds for the accelerated architecture
acquisition initiative
This section amends title 10 by adding a new section 2395a
the purpose of which is to allow the Central Imagery Office
(CIO), as a Combat Support Agency, to expend currently-
programmed
O&M and Procurement funds to establish, implement, and
deploy a worldwide imagery architecture. Having
flexibility to use these funds will provide the Central
Imagery Office the ability to meet changing imagery
requirements, ensure readiness, and provide timely support
to military operations.
In the past, numerous studies and evaluations have
indicated that the United States imagery system was unable to
provide required imagery support in a timely manner. The
experience of Desert Shield/Desert Storm reinforced those
evaluations. The Central Imagery Office was created and
assigned responsibility for enhancing the ability of the
military departments, Unified Commands, their components,
Joint Task Forces, tactical units, and other activities to
make use of all imagery assets in a timely manner. The
Accelerated Architecture Acquisition Initiative is a key
program through which the Central Imagery Office will develop
and field systems to provide real-time access to and
dissemination from existing and planned imagery collection
systems (national and theater) to defend and national users
worldwide, real-time access to distributed digital imagery
and imagery-product archives, and enhancements to and
increases in the capacity of existing Department of Defense
data networks to accommodate increased requirements from the
imagery assets.
Critical to the success of the Accelerated Architecture
Acquisition Initiative is centralized management and
oversight to balance requirements to ensure successful
development, procurement, and development of necessary
hardware, software, communications, and services. Central
Imagery Office must ensure the standardization,
compatibility, and interoperability of equipment and
processes to provide a worldwide system for required, timely
imagery support. A key element the Accelerated Architecture
Acquisition Initiative is the near-term provision to JCS-
selected users of that equipment necessary to receive and use
digital imagery products.
The Central Imagery Office's proposal provides the express
language needed in the 1996 Appropriations Act for authority
to purchase and deploy hardware, software, and
communications, using Central Imagery Office funds, for
activities funded in the Department of Defense-funded portion
of the NFIP. Without this special provision, 31 U.S.C.
section 1301A would prevent the Central Imagery Office from
using funds appropriated to it in the
defense-wide appropriation in this manner. The Central
Imagery Office will be unable to carry out its intended
emission to deliver Accelerated Architecture Acquisition
Initiative capabilities to the organizations that require
them and to establish successfully the Accelerated
Architecture Acquisition Initiative architecture
worldwide. This legislation will allow for an efficient
and highly flexible way for the Central Imagery Office to
deploy needed capabilities during crisis and emergencies,
to meet changing imagery requirements, ensure readiness,
and provide timely support to military operations.
Enactment of this proposal will not increase the budgetary
requirement of the Department of Defense.
Section 335. Establishment of a Department of Defense
Laboratory Revitalization Demonstration Program
The authority would establish a test program to allow the
heads of selected defense laboratories greater flexibility to
undertake facilities modernization without the requirement to
seek approval from higher levels. The purpose of the program
is to reduce the amount of time required to upgrade research
and development capabilities at Department of Defense
laboratories. The provision would recognize that facilities
construction in support of research and development is
historically more expensive than similar-sized projects in
other construction categories. For test program laboratories,
the provision would raise the threshold from $1.5 million to
$3.0 million for minor military construction projects that
the Secretary of Defense may carry out without specific
authorization in law. The provision would also raise the
threshold for minor military construction projects requiring
prior Secretary of Defense approval from $500,000 to $1.5
million. Finally, the provision would raise for selected
laboratories the threshold from $300,000 to $1.0 million for
the value of any unspecified military construction project
for which operation and maintenance funds may be used.
The test authority would expire on September 30, 2000. It
would also require the Secretary of Defense to designate
participating laboratories before the test may begin and to
report to Congress on the lessons learned from the test
program one year before it is terminated.
Subsection (a). A healthy and responsive defense laboratory
system is essential to the
[[Page S5808]] national defense and security, and to foster
the growth and development of new technologies having both
military and civilian applications. A strong and flexible
defense laboratory system, staffed by top quality scientists,
technicians, and engineers, with state-of-the-art equipment
and facilities is critical to meeting new and changing world
threats, as well as maintaining America's technological
military leadership.
The ability of defense laboratories to rapidly introduce
technological innovation into military systems, and to
respond to technological exigencies has been significantly
degraded by requirements that the laboratories conduct their
facilities modernization functions under a set of complex and
time consuming procedures inappropriate to laboratory
operations. The inability of our laboratories and centers to
modernize antiquated facilities in a prompt fashion has
resulted in an ineffective and inefficient use of tax
dollars.
The Secretary of Defense has determined that many of the
problems in the defense laboratory system stem from the
application of procedures and processes to the laboratories
that are inappropriate to the research and development
community. The Secretary anticipates that the elimination of
certain unnecessary and cumbersome restrictions would result
in much more efficient and effective laboratories. The
Secretary has already selected laboratories from each of the
military departments to participate in a demonstration
program to substantiate the hypothesis. Currently, internal
procedures and regulations are being updated, streamlined, or
abolished for the purpose of the demonstration program. This
proposal is intended to make those legislative changes
identified by the Secretary of Defense as necessary to
partially implement the Demonstration Program.
In implementing any authorizations in this Act that are
waivers or exceptions to existing law or laws, the Secretary
will assure that the basic purposes and interests of the
original laws will be carried out and protected in a manner
most appropriate to the research and development community.
The Secretary will review and evaluate the findings of the
demonstration program, and make appropriate recommendations
as to
the applicability of legislative changes to all Department
of Defense laboratories.
Subsection (b). This section is aimed at improving the
research and development facility based by enhancing the
process for upgrading the facilities including built-in
equipment necessary for performing state-of-the-art research
and development.
The inherently complex nature of conducting modern research
requires facilities, equipment and support infrastructure
that are simply more expensive, on a unit basis, than other
types of military support activity. For example,
representative examples of minor facilities construction
obtained from each of the three Services from their fiscal
year 1993 minor military construction (MILCON) requests, show
laboratory construction, expansion or reconfiguration
costing, on a square foot basis, about three times what a
similarly sized office building cost.
Aside from meeting and responding to military crises such
as Desert Storm, the very nature of the experimental process
requires a rapid response to a scientific discovery. Often
significant new information can be acquired by building on an
existing experiment if that ``add on'' experiment can be put
in place in a coherent fashion. Time is of the essence if
experimental opportunities are to be maximized and
efficiently exploited.
Operating and maintaining a government owned research and
development facility base is in the best interests of the
nation for the following reasons;
The Department of Defense research and development
operations perform research and development activities
quickly in response to operational needs. Examples of
government scientists involved in the Desert Storm operation
attest to the efficacy of the Department of Defense
laboratory programs. Having Federal employees dedicated to
defense research and development assists in assuring accurate
communications and continuity of research and development
assistance.
The cadre of government scientists with contemporary
facilities assures that government managers have
knowledgeable unbiased advisors on research and
development, i.e., the ``smart buyer'' model. To stay
current, scientists must not only continue their academic
education, but need to be actively involved in
contemporary research and development.
There are certain types of research and development that
the government needs to maintain, due to their sensitive
nature. Specific examples include chemical and biological
agents, and nuclear effects.
There are some types of research and development that are
not accomplished in private institutions, but are necessary
for military operations. Specific examples include fuzing,
communications network defense, special sensors, special
military related medical research, and night vision
equipment.
There are certain types of generic research in exotic or
speculative areas which may have significant future military
impact. Our laboratories, at least on a limited and selective
basis, must have the ability to promptly pursue such research
as opportunity dictates.
Subsection (b)(1). Sections 2805 (a) and (b) (1) of title
10 were established under Public Law 97-214 and were
effective October 1, 1982. This provision is available to the
agency to perform minor construction which was not specified
in the Military Construction requests. The dollar limitations
contained in 2805 (a) and (b) of title 10 were last revised
in 1991.
The construction of laboratory and supporting facilities in
direct support of state-of-the-art research and development
historically is more expensive than similar sized projects in
other construction categories. Specifically, there are unique
safety, security, and operational requirements which
inherently increase the cost for laboratory facilities.
Increasing the limit of unspecified minor military
construction to $3,000,000 for facilities in support of
research, development, test, and evaluation (RDT&E) would
allow the head of the laboratory the same relative latitude
as the commander of other military programs.
Subsection (b)(2). The provisions contained in section
2805(b)(2) were intended to insure proper Congressional
control and oversight of the minor military construction
flexibility granted to the Service Secretaries. While the
provisions of this Bill would modify the dollar threshold
level at which such notification to the Congress would be
required for this demonstration program, an effective
evaluation of this demonstration program does require an
appropriate reporting function. Consequently the Department
of Defense, through already existing internal mechanisms,
intends to identify the scope, nature and dollar amount of
the use of this authority. The Services will report to the
Director of the Defense Research and Engineering at the end
of each fiscal year on how this authority was utilized
describing dollar amounts, sources of funds and projects
undertaken. This data could be made available to the Congress
as part of the evaluation of the program.
Subsection (b)(3). The current provision found at section
2805(c)(1) setting a limit of $300,000 operation and
maintenance funds for minor modifications and construction is
appropriate for typical government office buildings, such as
establishing walls and electrical outlets for an office.
However, this dollar amount has been unduly restrictive for
accomplishing laboratory modifications. To establish a state-
of-the-art research and development environment, there are
often special needs such as special ``clean room''
requirements, and special plumbing or ventilation
requirements for safety equipment that cannot be met for
$300,000. Raising the amount to $1,000,000 would allow the
type of minor work available to most Commands but precluded
to most Heads of Laboratories.
Subsection (c). It is the intention of the legislation to
conduct an experiment to determine the effectiveness and
benefits of granting this authority. Consequently, some
baseline participation must be established for comparative
purposes to permit effective evaluation of the program.
Subsection (d). The Department intends to document the
performance and results of this program in order to
effectively recommend to the Congress whether and with what
changes this initiative should be made permanent.
Subsection (e). This section is included to assure that the
language of this Act does not limit any existing authority
that may have been granted to one or more of the
laboratories under this Program.
Subsection (f). This section provides the definitions
common to this Act.
Subsection (g). This section is included to insure that
appropriate recommendations are made to the Congress.
Section 336. Repeal of certain depot-level maintenance
provisions
This section repeals sections 2466 and 2469 of chapter 146,
title 10, United States Code. These sections impose
limitations on the amount of depot-level maintenance of
materiel that can be performed by non-federal government
employees and place restrictions on changing the performance
of maintenance workloads currently performed in depot level
activities of the Department of Defense to other depots and
to private industry.
Section 2466 provides that not more than 40 percent of the
funds made available in a Fiscal Year to a military
department or a Defense Agency, for depot-level maintenance
and repair workload may be used to contract for performance
by non-Federal Government personnel of such workload for the
military department or the Defense Agency. Repeal of Section
2466 will provide the Department of Defense and the military
departments the needed flexibility to accomplish more than 40
percent of their depot maintenance workload by non-Federal
Government employees when needed to achieve the best balance
between the public and private sectors of the Defense
industrial base. The repeal of Section 2466 will not increase
the budgetary requirements of the Department of Defense.
Section 2469 prohibits the Secretary of Defense or the
Secretary of a Military Department from changing the
performance of a depot-level maintenance workload that has a
value of not less than $3,000,000 and is being performed by a
depot-level activity of the Department of Defense unless,
prior to any such change, the Secretary uses competitive
procedures to make the change. The Department has suspended
cost competitions for depot maintenance workloads because the
data and cost accounting
systems of the Department are not capable of determining
actual costs for accomplishing specific depot
[[Page S5809]] maintenance workloads in the depots. Repeal of
Section 2469 will permit the Department of Defense and the
military departments to shift workloads from one depot to
another or to private industry as required to resize the
depot maintenance infrastructure to support a smaller force
structure. The repeal of section 2469 will not increase the
budgetary requirements of the Department of Defense.
This legislation will enable the Department to structure
its organic Defense depot maintenance activities consistent
with satisfying core logistics capability requirements that
are based on providing effective support for national defense
contingency situations and other emergencies.
The proposed repeal of sections 2466 and 2469 will permit
the Department of Defense to accomplish depot maintenance for
weapon systems and equipment in the most cost effective and
efficient manner. The Department is establishing core depot
maintenance centers of excellence to retain the best quality
products and services to support its combat forces. The
Department's core depot maintenance concept promotes sharing
of workload between Defense depots and private industry to
accommodate teaming efforts and supports the best application
of modern technology for accomplishing depot maintenance.
The repeal of sections 2466 and 2469 will allow the
Department to shift workloads from current depots to other
Defense depots and to compete workloads in the private sector
to achieve the lowest costs and best efficiency in support of
the core depot maintenance concept. It will also enable the
Department to size its depot maintenance infrastructure to
best support emergency and contingency scenarios with the
required levels of weapon systems readiness.
The enactment of this proposal will not increase the
budgetary requirements of the Department of Defense.
Title IV--Military Personnel Authorizations
Subtitle A--Active Forces
Section 401. End strengths for Active Forces
Section 401 prescribes the personnel strengths for the
Active Forces in the numbers provided for by the budget
authority and appropriations requested for the Department of
Defense in the President's budget for fiscal years 1996 and
1997.
Subtitle B--Reserve Forces
Section 411. End strengths for Selected Reserve
Section 411 prescribes the strengths for the selected
Reserve of each reserve component of the Armed Forces in the
numbers provided for by the budget authority and
appropriations requested for the Department of Defense in the
President's budget for fiscal years 1996 and 1997.
Section 412. End strengths for Reserves on active duty in
support of the Reserves
Section 412 prescribes the end strengths for reserve
component members on full-time active duty or full-time
National Guard duty for the purpose of administering the
reserve forces.
Subtitle C--Military Training Student Loads
Section 421. Authorization of training student loads
Section 421 provides for the average military training
student loads in the numbers provided for this purpose in the
President's amended budget for fiscal years 1996 and 1997.
Title V--Military Personnel Policy
Subtitle A--Officer Personnel Policy
Section 501. Equalization of accrual of service credit for
officers and enlisted members of the Armed Forces
Subsection (a) amends section 972 of title 10 by combining
and redrafting paragraphs (3) and (4) and by replacing
``liable'' with ``required''. These changes are intended to
clarify the provision and do not make substantive change to
the current law. Section 972 states that enlisted members
must make up lost
under certain circumstances before that time can be counted
toward service for retirement.
Subsection (b) amends title 10 by adding a new section
972a. The purpose of this new section is to prevent accrual
of service credit to an officer of the armed forces under the
following circumstances: (1) while in a deserter status; (2)
while absent from duty, station, or organization for more
than one day without proper authority; (3) while confined by
military or civilian authorities for more than one day
before, during or after trial; or (4) while unable for more
than one day to perform duties because of intemperate use of
drugs or alcoholic liquor, or because of disease or injury
resulting from an officer's misconduct. These circumstances
are the same as those under which an enlisted member is
required to make up time lost under section 972 of title 10.
Such time would not count in computing the officer's length
of service for any purpose except the computation of basic
pay under section 205 of title 37, including, but not limited
to, voluntary retirement for length of service under chapters
367, 571, or 867 of title 10.
Sections 3925 and 8925 of title 10 address computation of
years of service for voluntary retirement by regular enlisted
members of the Army and the Air Force, subject to the
provisions of section 972. As noted above, section 972 states
that enlisted members must make up time lost under certain
circumstances before that time can be counted toward service
for retirement. This made-up time ensures that the Army and
the Air Force receive a full commitment based on an
enlistment or induction contract. Comparable provisions
relating to the Navy in chapter 571 of title 10, do not
reference section 972 and do not have a provision comparable
to sections 3925 and 8925.
Sections 3929 and 8926 of title 10 address computation of
years of service for voluntary retirement by regular and
reserve commissioned officers of the Army and the Air Force.
Comparable provisions relating to the Navy in chapter 571 of
title 10, do not have a provision comparable to sections 3929
and 8926. Presently, there are no limitations placed on
officers for actions similar to those in section 972.
Officers continue to receive service credit towards
retirement eligibility, higher longevity pay, and increased
multiplier for retired pay purposes.
At the same time, highly-qualified officers selected for
early retirement cannot be extended past their mandatory
retirement date to reach a pay increase point. This
proposal will rectify these inequities.
Subsections (c) and (e) amend sections 3926 and 8926 of
title 10 to make reference to new section 972a in the same
fashion that section 972 is referenced in sections 3925 and
8925 of title 10. Subsection (d) amends title 10 by adding a
new section 6328 in chapter 571 to make reference to both
sections 972 and 972a.
The enactment of this proposal will not increase the
budgetary requirements of the Department of Defense.
Section 502. Changes in general officer billet titles
resulting from the reorganization of headquarters, Marine
Corps
The purpose of this legislation is to replace the current
Sections 5041(b), 5044 and 5045 of Chapter 506 of title 10,
United States Code, with language to reflect reorganization
of Headquarters Marine Corps to more efficiently support the
Commandant in his two roles as a member of the Joint Chiefs
of Staff and as a Service Chief.
Based on a Headquarters Marine Corps Reorganization Study,
proposed changes were recommended to establish a viable
organization that incorporates coherent, timely and forceful
resource management and advocacy; General Officer
efficiencies; and the ability to respond rapidly to emerging
issues in a coordinated and comprehensive method.
The following changes in general officer billet titles were
proposed to more efficiently accomplish support to the
Commandant:
The Assistant Commandant of the Marine Corps to Vice
Commandant of the Marine Corps;
Deputy Chiefs of Staff of the Marine Corps to Deputy
Commandants of the Marine Corps;
Assistant Deputy Chiefs of Staff of the Marine Corps to
Assistant Deputy Commandants of the Marine Corps;
Assistant Chiefs of Staff of the Marine Corps to Assistant
Commandants of the Marine Corps.
This proposal will be effected at no cost to the Department
of Defense or the Department of the Navy
Section 503. Increase in the transition period for officers
selected for early retirement
Paragraphs (1) of subsections (a) and (b) would amend
sections 581 and 638 of title 10, United States Code, to
extend the transition period for officers selected for early
retirement by three months. Under subsections 581(b) and
638(b)(1)(A) of title 10, an officer must be retired ``not
later than the first day of the seventh calendar month
beginning after the month in which the Secretary concerned
approves the report of the board which recommended the
officer for early retirement.'' Subsections (a) and (b) of
this proposal would require officers selected for early
retirement to be retired not later than the first day of the
tenth calendar month beginning after the month in which the
Secretary concerned approves the report of the board which
recommended the officer for early retirement.
Paragraphs (2) of subsections (a) and (b) would authorize
the Secretary concerned to defer the retirement of an officer
otherwise approved for early retirement under section 581,
638 or 638a of title 10 for not more than 90 days, in order
to prevent a personal hardship for the officer or for other
humanitarian reasons.
Subsection (c) would exclude from counting for the purpose
of determining authorized end strength under section 115 of
title 10, those officers selected for early retirement whose
mandatory retirement date has been deferred, for up to 90
days, by the Service Secretary for reason of personal
hardship or other humanitarian reasons.
Under current law, officers selected for early retirement
have six months and some fraction of a seventh month to
prepare for an involuntary transition to civilian life. In
most cases,
these officers have career expectations which are limited
only by statutory restrictions on years of commissioned
service and, therefore, are not prepared to make this
sudden, unwanted transition. Many of the officers selected
for early retirement must seek and attain post-military
service employment, move families to retirement locations,
meet current financial obligations such as mortgage
payments and college tuition costs for older children and
work around secondary and elementary education school
schedules for younger children.
Compressing these major events into a six month period is
difficult, particularly if the officer is deployed or
stationed overseas. Extending the transition period by three
months would not only permit officers selected for early
retirement to plan a more
[[Page S5810]] orderly transition to civilian life while
still performing in their military positions, but would also
provide the Services more time in which to identify and
detail reliefs for these officers while still meeting fiscal
year officer end strength requirements.
This proposal to increase the transition period for
officers selected for early retirement by three months is a
modest, but necessary change which will positively affect one
of the military's most negative personnel reduction
processes. While this change will not eliminate an officer's
shock of being forcibly retired early from a Service, it will
soften the impact for affected officers and their families
who have dedicated 20 or more years of faithful and
professional military service to the United States.
There is no cost associated with this proposal. Selective
Early Retirement Boards could be convened three months
earlier to offset any net increase in total pay and
allowances expended as a result of the three month extension
in the transition period.
Section 504. Revision in the authorized strength limitations
for Air Force commissioned officers on active duty in the
grade of major
This section would authorize the Secretary of the Air Force
to raise temporarily the ceiling on the number of majors on
active duty in the Air Force by 1,100. Such statutory
authority
would allow the Air Force to accelerate promotion timing to
meet congressional intent as expressed through the Defense
Officer Personnel Management Act. This proposal will not
increase the total number of commissioned officers
authorized by the Air Force and will not impede planned
reductions in the officer force.
Section 505. Revision in the authorized strength limitations
for Navy commissioned officers on active duty in grades
of lieutenant commander, commander, and captain
This section temporarily and uniformly raises the ceilings
on the numbers of lieutenant commanders, commanders and
captains on active duty in Navy by 910, 722 and 300,
respectively. This temporary increase in ceilings is
necessary to provide sufficient grade authorizations to
maintain Unrestricted and Nurse promotion flow and
opportunity within Defense Officer Personnel Management Act
(DOPMA) guidelines. This temporary authority would expire on
the 30th of September, 1997, by which time Navy post-draw
down officer requirements and end strength will have
stabilized, and a more precise determination of permanent
grade table relief requirements can be made. For the long
term, Navy requires permanent grade table relief to maintain
officer career progression within Defense Officer Personnel
Management Act guidelines. Navy will pursue this permanent
relief as part of a joint Service effort coordinated by the
Department of Defense.
Navy's Unrestricted Line O-4 flow point will exceed the
Defense Officer Personnel Management Act guideline of 11
years in fiscal year 1999, and peak at 13 years and 6 months
in fiscal year 2003, despite the use of forced attrition
programs to control this increase. As the significant career
milestone of promotion to O-4 slips further off into the
future, Navy will find it increasingly more difficult to
attract high-caliber officers and retain its best junior
officers, particularly in the current climate of declining
strength, increased forced attrition and reduced retirement
benefits.
To provide Nurse Corps officers with comparable promotion
opportunity and, Navy has had to provide substantial internal
compensation to the Nurse Corps. Without this
``compensation'' Nurse Corps promotion opportunity and timing
would remain outside of the Defense Officer Personnel
Management Act promotion system
guidelines indefinitely at the grades of commander and
captain. In the current environment of declining strength
this compensation is becoming increasingly more difficult
to provide.
The proposed temporary change to the grade table will
provide sufficient grade relief to maintain Unrestricted Line
and Nurse Corps promotion opportunity and timing within
Defense Officer Personnel Management Act guidelines and
ensure Navy's ability to attract and retain the high-caliber
officers it requires.
The approximate cost to implement this initiative is
estimated as follows (in millions): Fiscal Year 1996: 00.00;
Fiscal Year 1997: 10.00.
These amounts have not been included in any estimates for
appropriations submitted through budget channels by the
Department of Defense.
Section 506. Authorization of general or flag officer
promotion zones
This section amends section 645 of title 10 to clarify the
definitions of promotion zones which are applicable to
Chapter 36 of title 10. The modified definitions will not
require executive level officers (grades 0-6 and above) to be
placed in a promotion eligibility category (above the zone)
for officers who have failed of selection for promotion.
Executive level officers become eligible to be selected for
promotion when they have one year service in grade, and
remain eligible unless selected for promotion or retired.
In part, the Defense Officer Personnel Management Act
(DOPMA) was enacted to make uniform the provisions of law
relating to promotion of regular commissioned officers of the
Army, Navy, Air Force, and Marine Corps. The Defense Officer
Personnel Management Act was, however, enacted primarily for
the purpose of field grade officer management.
At the time of the Defense Officer Personnel Management
Act's enactment, it was apparent that executive level
officers
were not intended to be subject to all of the provisions of
the Defense Officer Personnel Management Act. The House of
Representatives Report of the Committee on Armed Services
which accompanied Senate bill 1918 states ``this category
of executives is in many ways unique and can and should be
managed accordingly. The small numbers involved permit
this, and the importance of the resource demands this.''
The House report further states that ``the concept of
failing selection for promotion does not apply when
officers are not selected for promotion to the flag and
general officer grades.''
Given that executive level officers do not fail selection
for promotion and, therefore, should not be placed in an
``above the promotion zone'' category, it is proposed that
the definition of ``promotion zone'' be modified to include
executive level officers considered previously for promotion.
The proposed amendment would, therefore, clarify that such
officers are not above the zone, and thereby eliminate any
stigma of failing of selection, bringing the statute squarely
within the apparent intent of Congress. There are no other
provisions of the Defense Officer Personnel Management Act
which are affected by the proposed modifications.
There are no costs associated with this legislation.
Subtitle B--Reserve Component Matters
Section 511. Repeal of requirement for physical examination
on calling militia into Federal service
This section repeals section 12408 of title 10, United
States Code, which requires that each member of the National
Guard receive a physical examination when called into, and
again when mustered out of, Federal service as militia. For
short periods of such service, this requires two complete
physical examinations during a period of days or weeks. In
view of other statutory and regulatory requirements for
periodic medical examinations and physical condition
certifications for members of the National Guard, this
additional examination requirement is unnecessary,
administratively burdensome, and expensive, and could impede
the rapid and efficient mobilization of the National Guard
for civil emergencies.
There is no corresponding statutory requirement for
physical examinations when members of the National Guard or
other reserve components are ordered to active duty as
reserves.
Section 512. Military leave for public safety duty performed
by members of the Reserve components of the Armed Forces
This section amends section 6323(b) of title 5 by
permitting employees to elect, when performing duties
described in that section, either military leave under that
subsection or annual leave or compensatory time to which they
are otherwise entitled. This amendment would not permit use
of sick leave for the performance of military duty described
in section 6323(b).
Section 513. Change to Reserve Officers' Training Corps
advanced course admission requirements
This section amends section 2104(b)(6)(A)(ii) of title 10
to permit the Secretary of the military department to
prescribe the length of the field training or practice cruise
that persons who have not participated in the first two years
of Reserve Officers' Training Corps must complete to be
enrolled in the Reserve Officers' Training Corps Advanced
Course. Currently, the preliminary training must last at
least six weeks.
This proposal authorizes the Secretary concerned to
prescribe the length of the field training or practice cruise
required for admission to the Reserve Officers' Training
Corps Advanced Course.
Section 514. Clarifying use of military morale, welfare, and
recreation facilities by Retired Reservists
This section amends section 1065(a) of title 10, United
States Code, to give members of the Retired Reserve who would
be eligible for retired pay but for the fact that they are
under 60 years of age (gray area reservists) the same
priority for use of morale, welfare, and recreation (MWR)
facilities of the military services as members who retired
after active-duty careers.
Currently, section 1065(a), enacted in 1990, gives the
retired reservists the same priority as active-duty members.
They, therefore, have preference over retirees from active
duty. This section amends the current section 1065(a) by
revising the last sentence to correct this inequity.
Enactment of this section will not result in an increase in
the budgetary requirements of the Department of Defense.
Section 515. Objective to increase percentage of prior active
duty personnel in the Selected Reserve
Section 1111(a) of the National Defense Authorization Act
for Fiscal Year 1993 provides that the Secretary of the Army
shall have an objective of increasing the percentage of prior
active duty personnel in the Army National Guard to 65
percent in the case of officers and 50 percent in the case of
enlisted members. This change would amend section 1111 and
eliminate from the law what may be seen as essentially an
arbitrary percentage as a target. It will also facilitate
increasing
[[Page S5811]] the active duty percentage of the career
officer and enlisted leadership under Department objectives
established by the Army's Section 1111 Congressional Plan
submitted to Congress in January, 1994. The plan, developed
after months of extensive modeling and analysis by the Deputy
Chief of Staff for Personnel, supports objectives of 65
percent for warrant officers and commissioned officers in the
grades above first lieutenant and below brigadier general. It
also limited the grades for enlisted members to sergeants and
above and increased the objective from 50 to 60 percent.
Section 516. Wear of military uniform by National Guard
technicians
This section would amend section 709 of title 32, United
States Code to provide that National Guard technicians who
are required as a condition of such civilian employment to be
members of the National Guard are also required to wear
military uniforms in the course of performing their duties as
technicians. These technicians are currently required to wear
uniforms in their civilian jobs, and this requirement has
been upheld by the Federal Labor Relations Authority and the
courts. Recent decisions by the Federal Labor Relations
Authority and the FSIP have required state National Guard
organizations to negotiate with employee unions on the
civilian clothing allowance under 5 U.S.C. 5901. These
decisions may result in state Guard
organizations being required to provide monetary civilian
clothing allowances to compensate technicians that have
already been furnished the required military uniforms
under the military wear and tear replacement provisions of
37 U.S.C. 418.
Subsection (b) would allow a period of service as a
technician by a person who is an officer in the National
Guard to be considered active duty for the purposes of
uniform allowances for officers under title 37. This would
place technician officers on the same footing as AGRs as to
eligibility for uniform allowances. This subsection would
also provide that these allowances are exclusive of civilian
uniform allowances authorized under titles 5 and 10.
Subsection (c) would authorize more frequent issuance of
military uniforms to members of the National Guard who are
technicians, as a result of wear and tear from wear during
the course of their civilian employment. It would also
provide that the issuance of uniforms or provision of a
uniform allowance to these technicians under 37 U.S.C. 418
would be exclusive of authority to provide civilian uniforms
or allowances under 5 U.S.C. 5901 or 10 U.S.C. 1593.
Section 517. Active duty retirement sanctuary for reservists
This section amends sections 1163(d) of title 10 to provide
for an exception to the active duty retirement sanctuary
provision for a member of a reserve component, who is on
active duty (other than for training) and is within two years
of becoming eligible for retired pay or retainer pay under a
purely military retirement system. This proposal would
provide authority for the Secretaries of the military
departments to issue regulations requiring that the length of
active duty be at least 180 days before members of a reserve
component could request retention on active duty until they
become eligible for active duty retired pay. Such regulations
would require reservists with 18 or more years of qualifying
service for active duty retired pay to serve on active duty
for special work for a period of 180 consecutive days or
longer in order to request active duty retirement sanctuary.
Certain reservists involuntarily recalled to active duty
would be exempt from the 180-day requirement. There are no
costs associated with the provision.
Section 518. Involuntarily separated military reserve
technicians
This section amends section 3329 of title 5 which requires
that certain eligible Department of Defense military reserve
technicians who were involuntarily separated from their
positions are given competitive service job offers in the
Department of Defense within 6 months of application.
Eligibility consisted of those who:
Separated on or after October 23, 1992, with 15 years
technician and 20 years of service creditable for non-regular
retirement under title 10, United States Code, section 1332;
Lost military membership not due to misconduct or
delinquency;
Are not eligible for immediate or early retirement; and
Apply within one year of separation.
This would eliminate the requirement that separated
technicians receive a job offer giving them placement rights
above other separated Department of Defense civilian
employees (including veterans). It also eliminates the
requirement that a vacancy be artificially created. The
proposed amendment would accord eligible technicians the same
priority placement consideration as other displaced
Department of Defense employees.
Subtitle C--Amendments to the Uniform Code of Military Justice
The legislative proposals in this subtitle are the result
of an annual review of the Uniform Code of Military Justice
by the Joint Service Committee on Military Justice. The Joint
Service Committee on Military Justice was established in
response to Executive Order 12473, as amended by Executive
Orders 12484, 12550, and 12708, and consists of
representatives from each of the five services and from The
United States Court of Appeals for the Armed Forces. The
purpose of the Joint Service Committee is to assist the
President in his responsibilities under article 36 of the
Uniform Code of Military Justice (10 U.S.C. 836) to ensure
that the principles of law and the rules of evidence
generally recognized in the trial of criminal cases in the
United States District Courts are applied, so far as
practicable, to cases triable by court-martial. The enactment
of this proposed
legislation would result in no additional cost to the
Government.
Section 551. Definitions
This section amends article 1 of the Uniform Code of
Military Justice (10 U.S.C. 801) by providing definitions of
the terms ``classified information'' and ``national
security''. These definitions are identical to those used in
the Classified Information Procedures Act (18 App. U.S.C. 1).
The section also provides a definition of the term ``armed
conflict''. This definition is similar to the definition of
``contingency operation'' found in section 101(a)(13) of
title 10, United States Code.
Section 552. Jurisdiction over civilians accompanying the
forces in the field of time of armed conflict
This section amends article 2(a)(10) of the Uniform Code of
Military Justice (10 U.S.C. 802(a)(10)) by extending
jurisdiction over civilians accompanying the forces in the
field to situations of armed conflict. This amendment
recognizes that armed conflict may exist without a
declaration of war and overturns United States v. Averette,
41 C.M.R. 363 (C.M.A. 1970). Determining whether an armed
conflict exists in the absence of a formal declaration of war
is a factual determination based on the totality of the
circumstances, including: the nature of the conflict (whether
it involves armed hostilities against an organized enemy);
the movement to and the numbers of United States forces in
the combat area; the casualties involved and the sacrifices
required; the maintenance of large numbers of active duty
personnel; legislation by Congress recognizing or providing
for the hostilities; executive orders and proclamations
concerning the hostilities; and expenditures in the war
effort.
Section 553. Investigations
This section amends article 32 of the Uniform Code of
Military Justice (10 U.S.C. 832) by adding a new subsection
which authorizes an article 32 investigating officer to
investigate uncharged offenses when, during the course of a
hearing under this article, the evidence indicates that the
accused may have committed such offenses. An article 32
proceeding frequently
eliminates weak or baseless charges saving the government
the time and expense of having to address them at trial.
It also serves the defense as a valuable discovery tool
permitting it to cross-examine government witnesses under
oath before trial. The investigation's swift completion
saves the accused from the anxiety and uncertainty of what
charges, if any, he will have to defend against and
assures his right to a speedy resolution of the issues.
Authorizing an investigating officer to broaden the scope
of the investigation beyond those offenses charged
benefits both the government and the accused. Under
current procedure, the investigating officer would at a
minimum, have to delay the proceeding in order to allow
the Government time to prepare and serve additional
charges should a basis for such charges arise during the
investigation. Such delays are contrary to the interests
of both the accused and the government in ensuring the
swift and efficient administration of justice.
The proposed legislation should allow the investigating
officer to investigate the uncharged allegation of
allegations without having to delay the proceeding, but still
insure that the accused's due process rights were protected.
The investigating officer would be required to advise the
accused of the nature of the uncharged offense or offenses
and that the offense or offenses will be investigated during
the current investigation. The accused would retain the same
rights with regard to the uncharged offenses as existed with
regard to the charged offenses, i.e., the right to be present
and represented by counsel, to confront and cross-examine
available witnesses, to examine real and documentary
evidence, to examine statements of unavailable witnesses, to
request that the investigating officer call witnesses, and to
present evidence in defense or remain silent. After hearing
all the evidence, the investigating officer may then
recommend the preferral and referral of additional charges in
the formal report on finding that a sufficient factual basis
for doing so exists.
Section 554. Refusal to testify before court-martial
This section amends article 47(b) of the Uniform Code of
Military Justice (10 U.S.C. 847(b)) by removing the
limitations on punishment which may be imposed by a Federal
District Court for a civilian witness's refusal, after being
subpoenaed, to appear or testify before a court-martial.
Under the present
statute, the Federal District Court may only impose ``a fine
of not more than $500.00, or imprisonment for not more
than six months, or both'' on a recalcitrant witness. This
proposal leaves the amount of confinement or fine to the
discretion of the Federal Court having jurisdiction over
the case and is based on 18 U.S.C. 401-402. This approach
provides the court greater flexibility in determining a
punishment more appropriately designed to elicit
cooperation from a recalcitrant witness.
[[Page S5812]] Section 555. Records of trial
This section amends article 54(c)(1)(A) of the Uniform Code
of Military Justice (10 U.S.C. 854(c)(1)(A)) by changing the
triggering factors which require a verbatim record of trial
in general courts-martial. It eliminates verbatim records of
trial in general courts-martial where the adjudged sentence
does not require mandatory review by a Court of Criminal
Appeals under article 66(b)(1) of the Uniform Code of
Military Justice, i.e., a sentence which does not extend to
death, dismissal, discharge, or confinement for one year or
more. As a result, staff judge advocates would have the
option of preparing the records for such cases in either
summarized or verbatim format, as their available resources
dictate. Courts-martial affected by this legislation are
examined under article 69(a) of the Uniform Code of Military
Justice (10 U.S.C. 869(a)) in the Service office of The Judge
Advocate General and can be fairly and efficiently examined
through use of a summarized record of trial, as is currently
the case with records of special courts-marital in which no
punitive discharge is adjudged.
Section 556. Effective date of punishments
This section amends article 57(a) of the Uniform Code of
Military Justice (10 U.S.C. 857(a)) by making forfeitures of
pay and allowances and reductions in grade effective
immediately upon being adjudged by a court-martial. It
discontinues the current practice of allowing a convicted
member to retain the privileges of his rank until the record
of trial has been prepared, the accused presents matters for
the convening authority's consideration (up to ten days from
service of the record upon the accused), and the convening
authority reviews the record and takes action on the
sentence. This situation can last from several weeks to
months depending upon the length and complexity
of the trial. The immediate application of forfeitures and
reduction in grade would not only have the desired
punitive and rehabilitative impact upon the accused, but
would also impress upon other members the costs of
misconduct, thus engendering an enhanced deterrence to
future criminal behavior by military members.
Section 557. Deferment of confinement
This section adds a new article 57a of the Uniform Code of
Military Justice (10 U.S.C. 857a) which combines the existing
provision authorizing deferment of confinement, i.e., article
57(d) of the Uniform Code of Military Justice, with two new
provisions describing additional circumstances under which
such action is authorized.
The first of the new provisions, article 57a(b), permits
the Secretary concerned, or his designee, to defer the
service of an accused's confinement when a Judge Advocate
General orders a case reversed by a Court of Military Review
to be sent to the United States Court of Military Appeals for
further review under article 67(a)(2). The latter court has
directed that, when the government appeals a court of
military review's reversal of the findings or sentence to
confinement, the accused must be released from confinement
pending the government's appeal unless it can be shown that
the accused is a flight risk or a potential threat to the
community should release be granted. See Moore v. Adkins, 30
M.J. 249 (C.M.A. 1990). Since current law only allows
deferment prior to ordering the execution of the sentence to
confinement, this legislation is necessary for the purpose of
establishing procedures to satisfy the mandate of the court.
The second of the new provisions, article 57a(c) allows the
convening authority to defer the running of a sentence to
confinement when a state or foreign country has temporarily
released the accused from its custody to allow the military
to try the accused before a court-martial and the military is
then obligated by agreement such as the Interstate Agreement
on Detainers Act, 18 App. U.S.C., or a treaty to return the
accused to the sender state's custody after the court-martial
is completed. Since article 57(b) provides that an accused's
sentence to confinement begins to run upon the date it is
adjudged, any sentence of confinement imposed by the court-
martial would have
to run concurrently with the accused's confinement by the
sender state in the absence of this legislation. This
would be the case regardless of the fact that the court-
martial conviction was based on different crimes than
those prosecuted by the sender state. The military courts
have been determined to be federal courts for the purpose
of complying with the Interstate Agreement on Detainers
Act. See United States v. Greer, 21 M.J. 338 (C.M.A.
1986).
Section 558. Submission of matters to the convening authority
for consideration
This section amends article 60(b)(1) of the Uniform Code of
Military Justice (10 U.S.C. 860(b)(1)) by inserting the word
``written'' in the first sentence. The amendment requires
matters submitted by an accused for consideration by a
convening authority with respect to the findings and sentence
of a court-martial to be limited to written matters.
Section 559. Proceedings in revision
This section amends article 60 of the Uniform Code of
Military Justice (10 U.S.C. 860) by adding a new paragraph
(3) to subsection (e). It provides that a proceeding in
revision may be ordered, prior to authentication of the
record of trial by the Military Judge, to correct an
erroneously announced sentence. The sentence may be corrected
even if, in doing so, the severity of the sentence is
increased. The amendment applies only to correction of an
erroneously announced sentence and does not authorize
reconsideration. The amendment overrules United States v.
Baker, 32 M.J. 290 (C.M.A. 1991). The previously designated
subsection (e)(3) is redesignated as subsection (e)(4).
Section 560. Post-trial review of courts-martial
Subsection (a) of this section amends article 61(c) of the
Uniform Code of Military Justice (10 U.S.C. 861(c)) by adding
the phrase ``or an application for relief under section
869(b) of this title (article 69(b))''. Subsection (b) amends
article 69(b) of the Uniform Code of Military Justice (10
U.S.C. 969(b)) by adding the phrase ``Unless the accused has
waived or withdrawn the right to appellate review under
section 861 of this title (article 61)''. These amendments
address a statutory loophole which
permits an accused to formally waive or withdraw appellate
review under the provisions of article 66 or 69(a) and up
to two years later submit an Application for Relief under
the provisions of article 69(b). The proposed change
limits an accused to a single avenue of post-trial review.
When an accused formally waives or withdraws appellate
review, he or she knowingly waives the right to bring issues
to the attention of a Court of Criminal Appeals or the Office
of The Judge Advocate General. Most legal issues are best
resolved through the normal appellate review process.
Permitting an accused who has waived or withdrawn appellate
review much later to submit an Application for Relief to The
Judge Advocate General allows that accused to equivocate at
the expense of judicial efficiency and economy and in effect
to ``shop'' for the most effective forum.
Section 561. Appeal by the United States
This section amends article 62 of the Uniform Code of
Military Justice (10 U.S.C. 862) by allowing the Government
to file an interlocutory appeal of rulings or orders issued
by the military judge which direct the government to disclose
classified information, impose sanctions for nondisclosure of
classified information, or refuse a protective order sought
to prevent the disclosure of classified information. It makes
applicable to courts-martial the same protections with regard
to classified information as apply to orders or rulings
issued on Federal District Courts under the Classified
Information Procedures Act (18 App. U.S.C. 7).
Section 562. Flight from apprehension
This section amends article 95 of the Uniform Code of
Military Justice (10 U.S.C. 895.) to proscribe fleeing from
apprehension without regard to whether the accused otherwise
resisted apprehension.
The proposed change responds to the United States Court of
Military Appeals decisions in United States v. Harris, 29
M.J. 169 (C.M.A. 1989), and United States v. Burgess, 32 M.J.
446 (C.M.A. 1991). In both cases, the Court held that
resisting apprehension does not include fleeing from
apprehension, despite
the explanation in Part IV, paragraph 19c(1), MCM, 1984, of
the nature of the resistance required for resisting
apprehension: ``The resistance must be active, such as
assaulting the person attempting to apprehend or flight''
(emphasis added). The 1951 and 1969 Manuals for Courts-
Martial also explained that flight could constitute
resisting apprehension under article 95, an interpretation
affirmed in the only early military case on point, United
States v. Mercer,11 C.M.R. 812 (A.F.B.R. 1953).
Flight from apprehension should be expressly deterred and
punished under military law. Contrary to civilian
jurisdictions, military personnel are specially trained and
routinely expected to submit to lawful authority. Rather than
being a merely incidental or reflexive action, flight from
apprehension in the context of the armed forces may have a
distinct and cognizable impact on military discipline. The
present alternatives for reaching and punishing flight from
apprehension are unsatisfactory, in that they lack uniformity
and are potentially unfair. Reliance on local regulations
(e.g., installation traffic regulations requiring drivers to
stop for a police vehicle with its lights and siren on), or
assimilation of state statutes makes prosecution dependent
upon the vagaries of inconsistent and sometimes nonexistent
law. Punishing a fleeing suspect for disobedience of a law
enforcement officer's order is both problematic (it requires
that the suspect receive an order, which is often not the
case or is impossible to prove) and unfair to the accused
(the maximum punishment for disobedience far exceeds the
misdemeanor-type nature of fleeing apprehension). Finally,
proceeding under article 134 as the Court suggested in
Harris, typically would raise several difficult legal issues,
including preemption and notice.
The Uniform Code of Military Justice must be amended in
order to uniformly proscribe fleeing apprehension under
military law; the Harris and Burgess decisions are premised
upon statutory interpretation, not Manual provisions. The
proposed Manual changes will be included in the Joint Service
Committee's 1994 Annual Review after the legislation passes.
Section 563. Carnal knowledge
Subsection (a) of this section amends article 120(b) of the
Uniform Code of Military Justice (10 U.S.C. 920(b)) by making
the crime of carnal knowledge gender neutral,
[[Page S5813]] bringing article 120 of the Uniform Code of
Military Justice into conformity with the spirit of the
Sexual Abuse Act of 1986 (16 U.S.C. 2241-2245).
Subsection (b) of this section amends article 120 of the
Uniform Code of Military Justice (10 U.S.C. 920) by adding a
new subsection (d) permitting an affirmative defense of
mistake of fact for alleged carnal knowledge, regarding the
age of the person with whom the accused committed the act of
sexual intercourse. It allows the accused to defend against a
charge of carnal knowledge on the basis that he or she lacked
a criminal intent while protecting children under 12 years of
age from sexual abuse and, thus causes the military offense
of carnal knowledge to more closely conform to its federal
civilian counterpart (18 U.S.C. 2243).
Section 564. Instruction in the Uniform Code of Military
Justice
This section amends article 137(a)(1) of the Uniform Code
of Military Justice (10 U.S.C. 937(a)(1)) by lengthening the
period of time in which training in certain provisions of the
Uniform Code of Military Justice is provided to new enlistees
from six to fourteen days.
