DEPARTMENT OF THE NAVY HEADQUARTERS UNITED STATES MARINE CORPS 3000 MARINE CORPS PENTAGON WASHINGTON DC 20350-3000 Canc: JUN 2018 MCBul 5800 JAD MARINE CORPS BULLETIN 5800 From: Commandant of the Marine Corps To: Distribution List Subj: MILITARY JUSTICE REQUIREMENTS AND IMPLEMENTATION GUIDANCE Ref: (a) 10 U.S.C. 5046 (b) SECNAVINST 5430.27D (c) MCO 5430.2 (d) MCO P5800.16A W/CH 7 (e) Public Law 112-239, National Defense Authorization Act for Fiscal Year 2013, January 2, 2013 (f) Public Law 113-66, National Defense Authorization Act for Fiscal Year 2014, December 26, 2013 (g) Public Law 113-291, Carl Levin and Howard P. Buck McKeon National Defense Authorization Act for Fiscal Year 2015, December 29, 2014 (h) Public Law 114-92, National Defense Authorization Act for Fiscal Year 2016, November 25, 2015 (i) 5 U.S.C. 552a (j) SECNAV M-5211.5E (k) SECNAV M-5210.1 (l) SECNAV M-5214.1 (m) DoD Instruction 5505.11, Fingerprint Card and Final Disposition Report Submission Requirements, July 21, 2014 (n) DoD Instruction 5505.14, Deoxyribonucleic Acid (DNA) Collection Requirements for Criminal Investigations, Law Enforcement, Corrections, and Commanders, December 22, 2015 (o) MARADMIN 372/12 (p) 10 U.S.C. 1044e (q) 10 U.S.C. 1044 (r) JAGINST 5800.7F (JAG Manual) (s) DoD Instruction 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures, March 28, 2013 as amended. (t) SECNAVINST 5370.7D (u) 8 U.S.C. 1430 Encl: (1) Military Justice Requirements and Implementation Guidance (2) Victims Legal Counsel Organization: Guidance on General Eligibility and Scope of Representation DISTRIBUTION STATEMENT A: Approved for public release; distribution is unlimited.
Report Required: Critical Information Requirements Report (Report Control Symbol EXEMPT), enclosure (1), paragraph 1 1. Purpose. References (a) through (c) require the Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC) to exercise overall functional supervision (as defined by reference (d)) of legal services and professional responsibility oversight within the Marine Corps. 2. Background. In order to address recent statutory (references (e) through (h)) and policy changes to the practice of military justice, the SJA to CMC approved the issuance of a series of military justice practice advisories. This bulletin consolidates these changes and adds additional regulatory requirements associated with the provision of military justice legal support within the Marine Corps. 3. Execution a. Commander s Intent and Concept of Operations (1) Commander s Intent. To promulgate standards, policies, and procedures for the provision and functional supervision of military justice within the Marine Corps. (2) Concept of Operations. The administration of military justice shall be conducted in accordance with enclosure (1). Guidance on general eligibility and scope of representation for the Victims Legal Counsel Organization is provided in enclosure (2). This Bulletin shall be read in conjunction with reference (d), Marine Corps Manual for Legal Administration (LEGADMINMAN). This bulletin supplements the LEGADMINMAN by adding additional and clarifying information. If any conflict exists between the LEGADMINMAN and this Bulletin, this Bulletin takes precedence. Nothing in this Bulletin 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. b. Subordinate Element Missions (1) Legal Services Support Section Officers in Charge (a) Administer the Legal Service Support Sections (LSSS) in accordance with this Bulletin. To ensure effective functional supervision, the LSSS leadership team (to include the Officer in Charge, the Legal Services Chief, the Legal Administrative Officer, and the Regional Trial Counsel) is required to conduct, at a minimum, quarterly site visits to outlying Legal Services Support Teams and, if applicable, Legal Services Support Detachments within its Legal Services Support Area. (b) Coordinate with supported Commanders SJAs to ensure military justice in the Marine Corps is administered in accordance with this Bulletin. (2) Staff Judge Advocates. Coordinate with the Officers in Charge (OICs), LSSS, in order to ensure military justice in the Marine Corps is administered in accordance with this Bulletin. 2
4. Administration and Logistics a. Privacy Act. Any misuse or unauthorized disclosure of Personally Identifiable Information (PII) may result in both civil and criminal penalties. The Department of the Navy (DON) recognizes that the privacy of an individual is a personal and fundamental right that shall be respected and protected. The DON s need to collect, use, maintain, or disseminate PII about individuals for purposes of discharging its statutory responsibilities will be balanced against the individuals' right to be protected against unwarranted invasion of privacy. All collection, use, maintenance, or dissemination of PII will be in accordance with the Privacy Act of 1974, as amended (reference (i)) and implemented per reference (j). b. Records Management. Records created as a result of this Order shall be managed according to National Archives and Records Administration approved dispositions per reference (k) to ensure proper maintenance, use, accessibility and preservation, regardless of format or medium. c. Additional Guidance. Additional guidance on the administration of military justice may be found in the practice advisories on the SJA to CMC website at http://www.hqmc.marines.mil/sja/branches/militaryjusticebranch(jmj).aspx. 5. Command and Signal a. This guidance is effective as of the date of this Bulletin. b. Release is authorized by MajGen J. R. Ewers, Staff Judge Advocate to the Commandant of the Marine Corps. 6. Reserve Applicability. This Bulletin is applicable to the Marine Corps Total Force. 7. Cancellation Contingency. This Bulletin is cancelled one year from date of publication. J. R. EWERS JR. Staff Judge Advocate to the Commandant of the Marine Corps Distribution: PCN 10209160200 3
ENCLOSURE 1 MILITARY JUSTICE REQUIREMENTS AND IMPLEMENTATION GUIDANCE 1. Staff Judge Advocate to the Commandant of the Marine Corps Critical Information Requirements (CIRs). CIRs are those events that potentially can have a strategic impact on the legal community or the Marine Corps. Legal Services Support Section (LSSS) Officers in Charge (OICs) and Staff Judge Advocates (SJAs) are directed to immediately report, via e-mail, any of the CIRs specified below to the Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC), Deputy SJA to CMC, and the Deputy Director of Community Development and Military Justice (JA-2). When in doubt about whether to report an item, err on the side of reporting. Updates should be provided continuously or when specifically requested. CIRs include, but are not limited to, high visibility cases. This reporting requirement is exempt from reports control according to reference (l), Part IV, paragraph 7g. The following should be reported: a. all murder, attempted murder, manslaughter, and battlefield misconduct allegations and any significant procedural development in such cases; b. serious cases involving an accused field grade officer, CWO-4, CWO-5, E-8, or E-9; c. national security cases; d. any case in which there has been a media inquiry; e. any case in which a Marine is detained for or charged with a felonylevel offense by a foreign nation; f. any unlawful command influence allegation against a general officer; g. any speedy trial violations under Article 10 or Rule for Court- Martial (R.C.M.) 707; h. any case in which there is untimely post-trial processing or a professional responsibility complaint; i. Article 62, Uniformed Code of Military Justice (UCMJ), appeals/petitions for extraordinary relief; and, j. any other case that has likely media interest or Commandant of the Marine Corps-level interest. 2. Case Management System (CMS) Entries. a. CMS will be used to track military justice cases that require services from the LSSS or LSST. Cases will be tracked through completion of the appellate review process and will be created in CMS regardless of the anticipated disposition at the earlier of: 1) notification to the LSSS or Legal Services Support Team (LSST) by a Military Criminal Investigative Organization (MCIO) or other law enforcement agency of any Special Victim Case defined in paragraph 5, or 1-1 Enclsosure (1)
2) receipt of the request for legal services (RLS). b. The following documents will be uploaded into CMS as applicable: 1) Prosecution Merits Memorandum; 2) Preferred and referred charge sheet; 3) Withdrawal/withdrawal and dismissal letter; 4) Report of Result of Trial; and 5) Sexual Assault Disposition Report (SADR). 3. Fingerprint and Deoxyribonucleic Acid (DNA) Collections. For the law enforcement probable cause determination regarding fingerprints and DNA samples taken in accordance with references (m) and (n), the installation SJA supporting the MCIO, Criminal Investigation Division, or the Provost Marshal Office will serve as the primary servicing legal advisor to the law enforcement agency. 4. Article 32, UCMJ, Preliminary Hearing Officer (PHO). The PHO shall be a judge advocate certified under Article 27(b), UCMJ; sworn under Article 42(a), UCMJ; if practicable, equal in grade to or senior in grade to both the trial and defense counsel; and in the grade of O-4/Major or higher, subject to the following exceptions: (1) A judge advocate below the grade of O- 4/Major may be detailed as a PHO if he or she has at least six months of experience as a trial or defense counsel, subject to the limitations in this section; (2) in those cases involving special victims a judge advocate below the grade of O-4/Major may not be detailed as a PHO unless he or she has previously acted as a trial counsel (TC), assistant trial counsel (ATC), defense counsel, associate defense counsel, or assistant defense counsel in at least one contested SVIP case; and (3) in those cases not involving special victims as defined in paragraph 5, when the appointment of a judge advocate is not practicable, or in exceptional circumstances in which the interests of justice warrants, the convening authority (CA) who directed the preliminary hearing may detail an impartial commissioned officer, who is not the accuser, as the PHO. Prior to conducting the hearing, the PHO must complete the Naval Justice School Article 32 Officer Course. 5. Special Victim Cases. Special victim cases are those cases involving alleged violations of Articles 118, 119, 119a, 120, 120a, 120b, 125 (with a child or forcible), 128 (domestic violence involving aggravated assault or child abuse), 134 (child pornography or assault with intent to commit the previously listed articles), or 80 (attempts to commit the previously listed articles) of the UCMJ. All special victim cases will be tried by a complex trial team (CTT) member. 6. Individual to Assume the Rights of Certain Victims. Prior to referral of charges, the CA may appoint a family member, representative of the estate of the victim, or other suitable individual to assume the rights of a victim who is incompetent, incapacitated, deceased, or a non-service member under 18 years of age. For the purposes of this appointment, a victim is an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense under the UCMJ. When determining whom to appoint under this rule, the CA may consider the following: the age and maturity, relationship to the victim, and physical proximity of any 1-2 Enclosure (1)
proposed representative; the costs incurred in effecting the appointment; the willingness of the proposed representative to serve in such a role; the previous appointment of a guardian by a court of competent jurisdiction; the preference of the victim; any potential delay in any proceeding that may be caused by a specific appointment; when appropriate, recommendations of trial counsel, defense counsel, and the victim's legal counsel; and any other relevant information. The designee may be the custodial guardian of the child, but under no circumstances may the designee be the accused. When appointed, this representative is appointed for the sole purpose of assuming the legal rights of the victim under Article 6b, UCMJ, and is not a substitute for a victims legal counsel, victim advocate, or other victim services providers. 7. Sexual Assault Offense Processing Requirements a. Sexual Assault Initial Disposition Authority (SA-IDA). Per reference (o), the initial disposition authority for certain sexual assault cases and collateral misconduct related to these cases must be an O-6 Special Court- Martial Convening Authority SPCMCA, or higher. When acting in this role, the O-6 SPCMCA, or higher, is known as a Sexual Assault Initial Disposition Authority (SA-IDA). This withholding applies to all other alleged offenses arising from the same incident whether committed by the accused or reported victim. Before a SA-IDA makes an initial disposition decision under R.C.M. 306, the SA-IDA must consider the victim s preference and review the report of investigation, the Article 32 report (if applicable), and consult with the cognizant SJA. The SA-IDA may not forward any offense relating to the initial incident to a subordinate commander. This withholding includes sexual assault offenses and non-sexual assault offenses such as underage drinking that are collateral to the reporting of the sexual assault offense. Unless forwarded to a superior commander for disposition, the SA-IDA maintains disposition authority over the case until final adjudication of all offenses arising from the incident, even if the SA-IDA decides to go forward on charges not listed in this paragraph or disposes of the case at a lower forum such as nonjudicial punishment (NJP) or administrative separation. For example, if the SA-IDA finds insufficient evidence for a sex-related offense, but finds sufficient evidence of collateral misconduct, such as underage drinking, the SA-IDA will adjudicate that offense and may not forward to a subordinate commander. The withholding of initial disposition authority to the SA-IDA applies to the following offenses: 1) rape in violation of Article 120, UCMJ, 2) sexual assault in violation of Article 120, UCMJ, 3) aggravated sexual contact in violation of Article 120, UCMJ, 4) abusive sexual contact in violation of Article 120, UCMJ; 5) rape of a child in violation of Article 120b, UCMJ, 6) sexual assault of a child in violation of Article 120b, UCMJ, 7) sexual abuse of a child in violation of Article 120b, UCMJ; 8) forcible sodomy in violation of Article 125, UCMJ; and 1-3 Enclosure (1)
UCMJ. 9) attempts to commit those offenses in violation of Article 80, b. Prosecution Merit Memorandum (PMM) 1) Generally. Except where no military jurisdiction exists, the servicing LSSS shall provide a PMM to the SJA for: (a) all allegations of the offenses listed in paragraph 7.a.; occurs; or occurs. (b) cases of aggravated child abuse where grievous bodily harm (c) aggravated domestic violence where grievous bodily harm 2) Contents. At a minimum, a PMM must include: a summary of the case; indicate the victim s preferred disposition, and reason for that preference if offered; an indication as to whether civilian authorities declined the case and reasons for the declination; an evaluation of the real, documentary, and testimonial evidence in the case; and, a discussion of any jurisdictional and statute of limitation concerns. The PMM may provide a recommendation as to disposition to the SJA; however this recommendation is not required. The PMM shall be marked, FOUO ATTORNEY WORK PRODUCT. The PMM template may be found on the JAD Forms tab on the CMC JA public website. c. SA-IDA initial disposition decision requirement. The PMM must be submitted to the SJA prior to the SA-IDA initial disposition decision and, after submission to the SJA, the PMM must be uploaded to CMS. The PMM must be signed by special victim qualified trial counsel (SVTC), as defined in paragraph 14.a, in consultation with the region s Highly Qualified Expert, if available, and approved by the Regional Trial Counsel. d. Consultation regarding victim s preference in prosecution venue for certain sex-related offenses. Per reference (g), for allegations of sexrelated offenses that occur within the United States, whenever practicable, the victim must be provided an opportunity to express views as to whether the offense should be prosecuted by court-martial or in a civilian court with jurisdiction over the offense. The cognizant commander must consider such views as to the victim s preference for jurisdiction, if available, prior to making the initial disposition decision described in paragraph 7.a. While persuasive, the victim s preference is not binding on the cognizant commander and, in appropriate cases, the cognizant commander may take initial disposition actions regardless of the victim s preference. If the victim expresses a preference that the offense be prosecuted in a civilian court with jurisdiction over the offense, the cognizant commander shall ensure that the appropriate civilian authority is notified of this preference. Following notification to the appropriate civilian authority, the cognizant commander is responsible for notifying the victim if the cognizant commander learns of any decision by the civilian authority to prosecute or not prosecute the offense in a civilian court. If the victim s views as to jurisdiction change, the cognizant commander must be notified. The cognizant commander is under a continuing obligation to consider the views of the victim as to jurisdiction until final action on the case. This paragraph applies to any allegation of a violation of Article 120, 120a, 120b, 120c, or 125 or any attempt thereof under Article 80, UCMJ. For purposes of this paragraph, 1-4 Enclosure (1)
cognizant commander means the SA-IDA, General Court-Martial Convening Authority (GCMCA), or any other appropriate commander taking action on the case. e. NAVMC 1752, Sexual Assault Disposition Report (SADR). No later than two business days after final disposition of a sexual assault case, a NAVMC 1752 SADR form will be completed by the cognizant SA-IDA. As used in this paragraph, sexual assault is defined as a violation of Article 120, 120b, 125, or any attempt thereof under Article 80, UCMJ. The default SA-IDA is the O-6 SPCMCA in the chain of command of the reported subject if the subject is subject to the UCMJ or a member of the reserve component. If the subject is not subject to the UCMJ or a member of the reserve component, the SA-IDA in the chain of command of the reported victim will be responsible for completing and submitting the SADR form. The purpose of the SADR form is to ensure consistency of data collection and reporting related to the DoD SAPRO Annual Report. The GCMCA SJA shall maintain a copy of the SADR in local files, upload it into CMS, and ensure submission to Judge Advocate Division (JAD). The SADR form is available on the JAD Forms tab on the CMC JA public website. For purposes of this paragraph, final disposition occurs on the date of court-martial sentence or acquittal (do not wait for the CA s action), the date NJP is administered, the date the separation authority takes final action, the date civilian authorities or a court take final action on the subject s criminal case, the date that some other final administrative action takes place, or the date that the cognizant CA decides to take no action, whichever is latest. In cases where multiple dispositions occur, list all of the actions taken where applicable in the SADR form and in the case synopsis of the SADR form. Follow the instructions on the SADR form to submit the form to JAD and Naval Criminal Investigative Service (NCIS) after the last disposition is complete. 8. Elevated Review of Disposition Decisions Regarding Certain Sex-Related Offenses a. Per reference (f), in any case involving a sex-related offense, as defined in paragraph 8.d., in which an SJA, pursuant to Article 34, UCMJ, recommends that any specification(s) of a sex-related offense be referred for trial by court-martial and the CA does not refer to court-martial all of those specification(s) recommended by the SJA for referral, the CA shall forward those specifications not referred along with a copy of the case file to the SECNAV for review. A specification recommended for referral but not referred need not be forwarded if the specification was charged only as an alternative theory of proof to a specification that was referred to courtmartial. b. In any case involving a sex-related offense in which an SJA, pursuant to Article 34, UCMJ, recommends that any specification(s) of a sex-related offense not be referred for trial by court-martial and the CA does not refer to court-martial those specification(s), the CA shall forward those specifications not referred along with a copy of the case file to the next superior commander authorized to exercise GCMCA for review. c. In any case involving a sex-related offense, which has been reviewed by the next superior commander, pursuant to paragraph 8.b., and a sex-related offense is not referred to a court-martial, the detailed TC may request that JA-2 review the case file and determine whether to seek SECNAV review of the case file. The detailed TC shall forward this request through the Regional 1-5 Enclosure (1)
Trial Counsel (RTC). If the JA-2 determines the case has prosecutorial merit, JA-2 shall forward the case file to the SECNAV for review. MCBul 5800 d. For the purpose of this paragraph, sex-related offenses are rape or sexual assault in violation of Article 120(a) or (b), UCMJ, forcible sodomy in violation of Article 125, UCMJ, or attempts to commit any of these offenses in violation of Article 80, UCMJ. e. When forwarding a case file for review under this paragraph, the file shall contain copies of the following: (1) All charges and specifications related to the case, whether or not subject to review under this paragraph; (2) Reports of investigations related to the specifications submitted for review, and if applicable, the report prepared pursuant to Article 32, UCMJ; (3) Certification that the reported victim was given the opportunity to state whether or not the victim believes that the offense alleged is a sex-related offense; (4) Certification that the reported victim was notified of the opportunity to express his or her views regarding disposition of the reported offense for consideration by the CA; (5) All statements made by the reported victim regarding the offense or the victim s views on and preference for disposition; (6) The advice of the SJA provided pursuant to Article 34, UCMJ; (7) A written statement explaining the reasons for the CA s decision not to refer the specification(s) subject to this review; and (8) Certification that the alleged victim was informed of the CA s decision to forward the specification(s) subject to this review. f. Before forwarding specification(s) for review by higher authority pursuant to this paragraph, the CA shall dismiss without prejudice those specification(s) being forwarded unless there is a substantial likelihood that the statute of limitations for those specification(s) will run before the higher authority has an opportunity for review. g. Upon completion of any review by higher authority under this paragraph, the victim of the reported sex-related offense shall be notified of the results of the review. 9. Searches of Offices that Contain Privileged Communications and Material. Although highly discouraged, there may be rare occasions when it is be necessary to search the offices of individuals who maintain materials that may be privileged under Section V of the Military Rules of Evidence. Because of the potential effect of this type of search on the privileged relationships and the possibility that the government may encounter material protected by a legitimate claim of privilege, it is important to exercise close control over this type of search and that copies of seized materials are provided to the affected professionals that maintained the privileged materials. Therefore, the following guidelines should be followed with respect to such searches: a. All parties involved are expected to take the least intrusive approach available balanced against the need to obtain and preserve evidence. Consideration should be given to obtaining information from other sources or by less intrusive means, such as requesting voluntary disclosure from the holder of the privilege or their counsel, or through the use of a preservation order or judicial order, unless such efforts are unavailable to government actors, could compromise the investigation, could result in the destruction of evidence, or otherwise would be ineffective. 1-6 Enclosure (1)
b. Prior to granting a search authorization, the commander must consult with the cognizant SJA. Prior to advising said commander, the cognizant SJA must consult with the law enforcement officials seeking the search authorization, with the RTC, and with the JA-2. c. The SJA must ensure there are adequate precautions in place to minimize the exposure of privileged materials. At a minimum the command authorized search and seizure should be drafted in a way that minimizes the need to search where privileged materials may be located and drawn as narrowly as possible to minimize the possibility of agents viewing privileged material, but broad enough to ensure the discovery and seizure of items(s) subject to the command authorized search and seizure. The SJA must also ensure there are adequate procedures to minimize the intrusion on potentially privileged materials. These procedures should address specifically how the search should be conducted, what materials should or should not be reviewed, and how to handle materials in client files. The SJA must additionally ensure there are adequate procedures addressing how to handle materials seized during the search, how to store the materials, who will conduct the review of the materials, and how the review will be conducted to minimize exposure to privileged material. d. There must be a privilege team appointed to conduct the search and review the materials seized. The privilege team shall consist of an investigator(s) and at least one judge advocate, in the rank of Major or higher, all of whom are unassociated with the underlying investigation or court-martial. The judge advocate should not be serving in the billet of OIC, TC, defense counsel, or victims legal counsel. e. Copies of seized materials should be provided to the affected professionals that maintained the privileged materials. 10. Approval of Confinement of a Service Member in a Civilian Confinement Facility. Confinement facilities will not be used to confine service members unless specifically approved and certified by CMC (Law Enforcement and Corrections (PSL)). If a female prisoner, pre-trial or post-trial, is to be confined in a civilian confinement facility, an echelon 2 commander must approve the confinement on a case-by-case basis. For the purposes of this instruction, all GCMCAs are echelon 2 commanders. 11. Regional Trial Counsel. The RTC is directly responsible to the LSSS OIC for the functional supervision of all trial services within the Legal Services Support Area (LSSA) and direct supervision over all cases personally detailed by the RTC and all cases at the co-located LSST. The LSST OIC is responsible for direct supervision of all other cases. The RTC is responsible for ensuring SVIP requirements are met within the LSSA including: leveraging the regional trial assets to deliver a SVIP TC, ensuring SVC qualified TCs meet or consult with NCIS SVIP members within 48 hours after notification of a special victim investigation, and meeting or consulting with NCIS at least monthly to assess the progress of investigations and prosecutions. With the exception of detailing authority, the responsibility for ensuring SVIP requirements are met may be delegated, but to an officer no lower than the rank of O-4/Major who is qualified as a SVIP TC. 12. Qualifications of Trial Counsel and Legal Services Marines. Any commissioned officer may be detailed as a TC in a special court-martial, except for special victim cases as defined in paragraph 5. All TCs must complete a TC orientation course before being detailed to a special court- 1-7 Enclosure (1)
martial. Only judge advocates, qualified as described in paragraph 14.a., may be detailed as a counsel for the government at an Article 32, TC at a general court-martial, or as a TC to a special court-martial containing one of the UCMJ Articles listed in paragraph 5. 13. General Court-Martial Qualified Trial Counsel (GCMTC). Qualification as a GCMTC shall be in writing by the RTC or LSSS OIC and cannot be delegated. Qualification is based on meeting all of the following requirements: (1) Be certified as a TC under Article 27(b), UCMJ and sworn under Article 42(a), UCMJ; (2) served as a TC for six months or have a combined eighteen months experience as a trial and/or defense counsel or military judge; (3) prosecuted a contested special court-martial as the lead TC or a contested general court-martial as an ATC; (4) completed the NJS Article 32 Officer Course; and (5) received recommendations, in writing, from the cognizant STC and, when applicable, LSST OIC. In extraordinary situations, as determined by the LSSS OIC, the LSSS OIC may waive the requirement to have served as a TC for six months or have a combined eighteen months experience as a trial and/or defense counsel or military judge. 14. Special Victim Investigation and Prosecution (SVIP). The RTC will employ the CTT to deliver SVIP capabilities through a task-organized combination of prosecutors, highly qualified experts (HQEs), victim witness assistance personnel, investigators, administrative support, and paralegal support from across the region. The CTT will work in conjunction with the victim, victim support providers, the command, and NCIS to deliver a comprehensive investigation and, when appropriate, prosecution. The LSSS OIC shall designate, and maintain a list of, all SVIP personnel. The list shall contain the name, date of SVIP designation, and the location of the individual. Designation of such SVIP personnel shall be at the discretion of the LSSS OIC and may not be delegated. Such personnel include SVIP Trial Counsel, SVIP Regional Trial Investigators, and SVIP Administrative Support Personnel. An individual that has a conviction for, a substantiated incident of, or is currently facing an open investigation into any of the following offenses is expressly prohibited from serving as SVIP personnel: (1) Sexual assault; (2) Domestic violence; (3) Child abuse; or (4) Any other felonylevel offense. a. SVIP Trial Counsel. Qualification is based on the following requirements: (1) Be a GCMTC; (2) Demonstrate to the LSSS OIC s satisfaction that the TC possesses the requisite expertise, experience, education, innate ability, and disposition to competently prosecute special victim cases; (3) Prosecute a contested special or general court-martial in a special victim case as an ATC; (4) Attend an intermediate level trial advocacy training course for the prosecution of special victims cases (e.g.,, Trial Counsel Assistance Program (TCAP) Prosecuting Special Victim Cases Course); and (5) Receive recommendations, in writing, from the STC, RTC, and, when applicable, LSST OIC. In extraordinary situations, as determined by the LSSS OIC, the LSSS OIC may waive the requirement to attend an intermediate level trial advocacy training course for the prosecution of special victim cases. b. Regional Trial Investigators (RTI). Should also: (1) Complete the TC Orientation Course; and (2) attend a TCAP-approved special victim training course. c. SVIP Administrative Support Personnel. Qualification is based on the following requirements: (1) Complete the TC Orientation Course; and (2) attend a TCAP-approved special victim training course. 1-8 Enclosure (1)
d. Highly Qualified Expert (HQE) Consultation. In all cases that involve allegations of violations of the Articles listed in paragraph 5, the detailed SVTC is required to provide an initial case assessment to and seek advice from the regional HQE as soon as possible, but no later than ten days after being detailed to the case. If a regional HQE is unavailable, the SVTC must provide the initial case assessment to and seek advice from the RTC, who will provide assistance and facilitate coordination with either TCAP or a HQE from another region. 15. Timely Notice of the Availability of Victims Legal Counsel (VLC) Assistance. Notice of availability of VLC shall be provided to victims of certain sex-related offenses (Articles 120, 120a, 120b, 120c, 125 and attempts to commit these offenses under Article 80) before any TC interviews or requests statements from the victim. 16. Disclosure to Victims. Where a victim is not represented by counsel, the Counsel for the Government is responsible for notifying the victim that he or she is entitled to the disclosures and notifications listed in this paragraph. Nothing in this section is intended to prevent the Counsel for the Government from disclosing additional documents if authorized under references (i) and (j). Further, nothing in this section is intended to prevent the victim or the victim s counsel, if applicable, from requesting disclosure of additional documents as necessary to safeguard victims rights. These requirements do not replace the specific requirements to provide information and materials to victims under the Uniform Code of Military Justice, Rules for Courts-Martial, Military Rules of Evidence, Victim Witness Assistance Program, and other sources of applicable law and policy. Upon request by the victim or the victim s counsel, the Counsel for the Government, normally the Trial Counsel, shall provide the following to the victim or victim s counsel as applicable unless otherwise directed by a court-martial: a. During the investigation stage prior to the preferral of charges. 1) A copy of all statements and documentary evidence adopted, produced, or provided by the victim that are in the possession of the Counsel for the Government or the SJA. Obligation to disclose continues throughout the court-martial proceeding. However, any request for a video of law enforcement s interview of the victim will be sent to the law enforcement agency that conducted the interview, typically NCIS. 2) Copies of any official requests, subpoenas, search authorizations or search warrants issued by military authorities to any third party custodian for documents or records in which the victim maintains a privacy interest. This includes, but is not limited to, requests for the victim s medical or behavioral health records from a military treatment facility or subpoenas issued to a telecommunications carrier for a victim s telephone records. Copies should be provided prior to execution when possible. Obligation to disclose continues throughout the court-martial proceeding. 3) The date, time, and location of any pretrial confinement review pursuant to R.C.M. 305. b. Upon preferral of charges. 1-9 Enclosure (1)
1) A copy of the charge sheet, redacted for PII, setting forth the preferred specifications pertaining to that victim; 2) A copy of any appointing order directing a preliminary hearing under Article 32, UCMJ; the date, time, and location of any preliminary hearing pursuant to R.C.M. 405; and any requests for continuance. c. Upon receipt or filing by the government. 1) A transcript or summarized transcript of the victim s testimony at the preliminary hearing; 2) A copy of the charge sheet, redacted for PII, setting forth the referred specifications pertaining to that victim; 3) Any docket requests, as well as docketing or scheduling orders, including deadlines for filing motions and the date, time, and location for any session of trial; 4) A copy of any filing, including attachments, that implicates the victim s rights, privileges, or protections. Such filings include those that seek to limit a victim s ability to participate in the court-martial, affect the victim s possessory rights in any property, concern the victim s privileged communications or private medical information, involve the victim s right to be heard, seek to admit evidence of the victim s past sexual behavior or sexual predisposition, seek to obtain information from a third party custodian via documents or records in which the victim may maintain a privacy interest, or the scheduling of the court-marital; 5) Per reference (g), any request to interview the victim received from defense counsel; 6) Notice of pretrial agreement negotiations and an opportunity to express the views of the victim regarding all proposed terms of the agreement relevant to that victim; 7) A copy of any approved pretrial agreement. d. Upon request, counsel for the government shall provide the victim access to, or a copy of, the recording of the Article 32 preliminary hearing. Such access or copy shall be provided not later than a reasonable time following dismissal of the charges, unless charges are dismissed for the purpose of re-referral, or court-martial adjournment. 17. Post-Trial Review a. Providing the Record of Trial to Qualifying Victims. The Post-Trial Review Office (PTRO) must prepare and deliver a copy of the record of trial to all qualifying victims in accordance with Article 54(e), UCMJ, and Rules for Courts-Martial 1103 and 1104. For the purposes of this section, the record of trial only needs to contain a verbatim transcript when required by R.C.M. 1103. In preparing the record of trial, the PTRO must redact all information that would unlawfully violate the privacy interest of any party, to include those afforded by references (i) and (j). In order to protect those privacy interests, the following information must be redacted from the record of trial: (1) Social Security Numbers; (2) Home Addresses; (3) Personal E-mail Addresses and Phone Numbers; (4) Financial Account Numbers; 1-10 Enclosure (1)
(5) Birth Dates; (6) The name of other victims or minors (in place of the name, initials should be provided for all victims or minors); and (7) Any unsealed medical records of other victims. The PTRO must certify waiver or delivery of the record of trial to qualifying victims using the standardized form available under the JAD Forms tab on the CMC JA public website. This certification must be included in the record of trial. b. Requests for Audio Recordings of Courts and Boards. Audio recordings of courts-martial, administrative separations boards, and boards of inquiry as a general rule will not be released unless provided for under law. 18. Nonjudicial Punishment Jurisdiction over Enlisted Reservists. Reserve commanding officers, Site Commanders or Inspector/Instructors (I/I) may exercise command authority over members of their command or upon service members who are assigned or attached to their command by written orders. An I/I or site commander may succeed a supported unit s commanding officer and exercise command authority and administrative control over members of the supported reserve command in the temporary absence of the reserve commanding officer or other reserve officers that could act for the commanding officer when the reserve officers are not in a duty status, or otherwise unavailable to execute command functions per succession of command guidance issued by the Commander, Marine Forces Reserve. 1-11 Enclosure (1)
ENCLOSURE 2 VICTIMS LEGAL COUNSEL ORGANIZATION: GUIDANCE ON GENERAL ELIGIBILITY AND SCOPE OF REPRESENTATION 1. General eligibility. Victims of sexual assault and other crimes who are eligible for Victims Legal Counsel Organization (VLCO) services are generally those individuals provided in reference (p) and those individuals eligible for legal assistance according to reference (q) and paragraph 0705 of reference (r). See the USMC Victims Legal Counsel Manual (Manual) for additional guidance. Specific examples include the following: a. Active duty Marines. See reference (r) para 0705. b. Marine reservists who became victims during the following circumstances: 1) During a period in which the Marine served on active duty or inactive-duty training; or 2) During any period, regardless of the duty status of the individual, if the circumstances of the alleged sex-related offense have a nexus to the military service of the victim. See 10 U.S.C. 1044e(a)(2)(B). c. Other DoD service members upon the approval of the OIC, VLCO, after a request from the Special Victims Counsel (SVC)/Victims Legal Counsel (VLC) Program Manager for the Service of the victim. By agreement of the Services, the uniform of the victim will generally determine the uniform of the VLC attorney that will be detailed. Requests for a Marine VLC attorney made by a member of another Service shall be forwarded to the OIC, VLCO, who will consult with the Program Manager of the other Service. d. Retirees. See reference (r) para 0705. e. Dependents of active duty and retired service members. See reference (r) para 0705. f. Overseas dependents of civilians employed by, serving with, or accompanying the Armed Forces of the United States, when they are assigned to a unit or command in a foreign country or to a vessel of the Armed Forces of the United States deployed in excess of 30 days having been the victim of a crime where a Marine commander has authority to make disposition decisions over the alleged offender. See reference (r) para 0705. g. DoD civilian employees. See 10 U.S.C. 1044e(a)(2)(C). h. Other persons authorized by the OIC, VLCO. 1) Authority. The OIC, VLCO, may grant exceptions and authorize the provision of VLCO services to persons who fall outside these eligibility standards when warranted for good cause that is consistent with the VLCO mission. 2) Process. Regional Victims Legal Counsel (RVLC) may submit an action memo to the OIC, VLCO, to obtain authorization. 2-1 Enclosure (2)
2. Scope of Victim Services Provided. A VLCO attorney may provide confidential and privileged legal advice and counseling to those victims of any crimes punishable under the UCMJ who fall into one of the categories described in paragraph 1. See the Manual for a detailed description of services offered under advice and counseling. VLCO may make the Manual available upon request. 3. Detailed Representation. A VLCO attorney may be detailed to represent and form an attorney-client relationship with sexual assault, domestic violence, and child abuse victims according to the following parameters: (the Manual contains additional information on representation and definitions of covered offenses). a. A VLCO attorney shall be detailed to represent eligible victims of sexual assault who have requested representation. The detailing authority shall detail a VLCO attorney in writing to a victim of sexual assault as soon as practicable after the victim s request. b. A VLCO attorney may be detailed to represent eligible victims of domestic violence and child abuse. The timing of the detailing is within the discretion of the detailing authority. c. A VLCO attorney may be detailed to eligible victims of other crimes with an opportunity to be heard under Military Rules of Evidence 412, 513, or 514. d. For all other cases, a VLCO attorney may be detailed only when authorized by the OIC, VLCO. RVLC may submit a request for authorization to the OIC, VLCO, through the Deputy OIC, VLCO. 4. Scope of Detailed Representation. A VLCO attorney detailed to represent a victim may provide the following services (the Manual provides additional guidance on services that may be provided): a. Representation and advocacy at any military law enforcement or other investigative interview or any military justice or administrative proceeding in connection with the reporting, military investigation, pre-trial confinement hearing, initial disposition decision, pretrial hearing, Article 39(a) session, court-martial proceeding, and any appellate litigation associated with the military prosecution of the alleged sex-related offense, domestic violence offense, or child abuse offense. b. Representation and advocacy vis-à-vis the client s command or the offender s command in connection with the following: 1) Report of a crime of sexual assault, child abuse, and domestic violence; 2) Participation in a military investigation and military prosecution of the crime that forms the basis of the representation; 3) Disposition of collateral misconduct alleged against the client. See reference (s) for a definition and description of collateral misconduct; or 4) Requests to the Command to stop retaliation against the client by members of the Command or by members of a subordinate Command. See generally 2-2 Enclosure (2)
reference (t), enclosure (1) for definitions of retaliation both command reprisal as well as social ostracism. c. Legal consultation, assistance, and advocacy for the client in any complaint against the Government. Some examples of a complaint against the Government include the following: a request mast, petitions to the Board of Corrections for Naval Records to remove or correct records (e.g., including but not limited to records associated with collateral misconduct or retaliation against the victim), complaints under Article 138 of the UCMJ or Article 1150 of the U.S. Navy Regulations, complaints to an inspector general (e.g., including but not limited to complaints of retaliation under reference (t)), allegations under review by an inspector general, complaints regarding equal employment opportunities, any request for information under the Freedom of Information Act, and any correspondence or other communication with Congress (e.g., including but not limited to complaints regarding a Command s disposition of a report of misconduct and complaints of retaliation under reference (t)). d. Representation and advocacy of the client s interests and statutory rights. e. Providing the client with all VWAP notifications. When a VLCO attorney is detailed to represent a victim, the Command and trial counsel will make their notifications to the VLCO attorney who will have the responsibility of providing them to the client. f. Legal assistance in personal civil legal matters that are directly connected to a reported offense. This may include notarizations, certain landlord-tenant matters, transitional compensation, and basic powers of attorney. This may include special powers of attorney related to temporary child care, transit or relocation of the victim, and/or the victim s own financial matters. Legal assistance support for victims in matters not directly connected to a reported offense should be referred to a military Legal Assistance attorney to afford the victim the best trained and experienced legal resource for effective support. g. Legal consultation regarding the potential for civil litigation against parties other than the United States. h. Legal assistance with immigration law for foreign nationals who are victims of domestic violence and need assistance becoming a US citizen when their spouse stops cooperating with immigration procedures. See reference (u). i. Legal assistance in obtaining any protections offered by civilian and military protection or restraining orders. In jurisdictions where citizens may file requests for a civilian protection order without the assistance of an attorney, VLCO attorney may assist clients in completing the request. VLCO attorneys should be aware of whether the Command s FAP or SARC already provide this service. j. Legal Assistance in obtaining any available military and veteran benefits, such as transitional compensation benefits, and in obtaining other benefits from State and Federal victims compensation programs. Such assistance may include contacting officials administering State and Federal victims compensation programs. 2-3 Enclosure (2)