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Army publishes significant revision to AR 27-10

Army Lawyer, Sept, 2002

Introduction

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

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Judicial

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

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

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

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

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

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

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

Nonjudicial Punishment

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

Army publishes significant revision to AR 27-10

Army Lawyer, Sept, 2002

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