DEPARTMENT OF THE AIR FORCE - static.e-publishing.af.mil

[Pages:466]DEPARTMENT OF THE AIR FORCE

HEADQUARTERS UNITED STATES AIR FORCE WASHINGTON, DC

MEMORANDUM FOR DISTRIBUTION C MAJCOMs/FOAs/DRUs

DAFI 51-201_DAFGM2021-02 15 April 2021

FROM: HQ USAF/JA 1420 Air Force Pentagon Washington, DC 20330-1420

SUBJECT: Department of the Air Force Guidance Memorandum to DAFI 51-201, Administration of Military Justice

By Order of the Secretary of the Air Force, this Department of the Air Force Guidance Memorandum immediately implements changes to DAFI 51-201, Administration of Military Justice. Compliance with this Memorandum is mandatory. To the extent its directions are inconsistent with other Air Force publications, the information herein prevails, in accordance with DAFI 33-360, Publications and Forms Management.

This Memorandum clarifies that SVIP members must collaborate within 48 hours after determining that an allegation meets the criteria of a special victim covered offense. It also clarifies that the SVIP team must include VWAP personnel.

This Memorandum becomes void after one year has elapsed from the date of this Memorandum, or upon incorporation by interim change to, or rewrite of DAFI 51-201, whichever is earlier.

Attachment: Attachment 1

JEFFREY A. ROCKWELL Lieutenant General, USAF The Judge Advocate General

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1.2. Added: Templates. All templates implementing the UCMJ and MCM that are referenced in this instruction can be found in their most current form on the JAJM Virtual Military Justice Deskbook.

1.2.1. Added: Mandatory Templates. With limited exceptions, the use of the templates attached as Figures in DAFI 51-201 is mandatory when accomplishing actions prescribed in this instruction. (T-1). The following exceptions apply:

1.2.1.1. Added: Figure A3.4, Sample Language Requesting Order for Non-Disclosure of Existence of Warrant or Order;

1.2.1.2. Added: Figure A5.1, GCM Pretrial Advice Pursuant to Article 34, UCMJ, and R.C.M. 406 and Convening Authority Selection of Court-Martial Members;

1.2.1.3. Added: Figure A5.2, Template General Court-Martial Convening Authority Decision Not to Refer Sex Offense Charge;

1.2.1.4. Added: Figure A5.3, Template Superior General Court-Martial Convening Authority Review Under Fiscal Year 2014 National Defense Authorization Act, Section 1744(d);

1.2.1.5. Added: Figure A5.4, Template Secretary of the Air Force Review Pursuant to Fiscal Year 2014 National Defense Authorization Act, Section 1744(c); and

1.2.1.6. Added: All templates found in Attachments 11-13.

1.2.2. Added: Modification of Mandatory Templates. Mandatory templates may be modified to address the facts and circumstances of each individual case.

*2.3. Changed to read: Air Force Judiciary (JAJ). Exercises supervisory responsibility for the Military Justice Law and Policy Division (JAJM), Government Trial and Appellate Operations Division (JAJG), Trial Defense Division (JAJD), Appellate Defense Division (JAJA), Special Victims' Counsel Division (JAJS), Investigations, Inquiries and Relief Division (JAJI), and Office of Disability Counsel (JAJO).

*2.11. Added: Investigations, Inquiries and Relief Division (JAJI). Functions as a component of the Office of the Judge Advocate General (AF/JA) for matters pursuant to the UCMJ, as determined by TJAG and operating in close coordination with JAJ. Advises senior leaders, SAF/IGQ and SAF/IGS on senior officer misconduct and other matters. Processes adverse actions that require Secretary of the Air Force coordination or approval, including but not limited to non-judicial punishment appeals, recalls to active duty, requests for resignation, retirement, and discharge in lieu of court-martial. Advises HAF on congressional inquiries pertaining to military justice and discipline matters. Coordinates on Board for Correction of Military Records petitions. Recommends actions by SECAF on all affirmed officer courts-martial resulting in a dismissal, and action by SECAF or TJAG on all court-martial sentences in which clemency may be appropriate. Represents TJAG on the Air Force Clemency and Parole Board, advises the Office of the Pardon Attorney on applications for Presidential Pardon, and is counsel to the

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Director of Air Force Corrections on matters relating to corrections and rehabilitation of Air Force inmates.

3.3.6. Changed to read: Article 60, UCMJ, Authority. Use the version of Article 60 in effect on the date of the earliest offense resulting in a conviction only to determine the convening authority's ability to modify the findings and/or sentence for an entire case. In all cases, regardless of the date of the offense, the convening authority may suspend certain sentences upon the recommendation of the military judge pursuant to Article 60a(c).

4.6.3. Changed to read: See paragraph 4.12 for the exercise of convening authority over general officers.

4.12. Changed to read: General Officers. Only a commander of an Air Force MAJCOM, AFDW/CC, or a superior convening authority may exercise court-martial convening authority over an Air Force general officer. (T-1). This limitation does not apply to the exercise of courtmartial convening authority by the commanding officer of a unified or specified command. The Secretary of the Air Force has court-martial convening authority over the Chief of Staff of the Air Force, commanders of Air Force major commands, AFDW/CC, and Air Force generals and lieutenant generals not assigned to a MAJCOM or combatant command.

4.14.2. Changed to read: General and Special Courts-Martial. In any case in which the accused is a member of the Air Force Reserve or Air National Guard, trial counsel must introduce sufficient evidence to establish in personam (personal) jurisdiction over the accused at the time of the offense. (T-0). See United States v. McDonagh, 14 M.J. 415, 422, 424 (C.M.A. 1983); United States v. Laws, 11 M.J. 475, 476 77 (C.M.A. 1981). A member of an Air Reserve Component must be on active duty prior to arraignment at a general or special court-martial. (T0). See R.C.M. 204(b)(1). Court-martial recalls require Secretary of the Air Force approval and processing in accordance with paragraph 4.14.6 to preserve the option of confinement.

4.14.6.8. Changed to read: A written legal review by the wing-level legal office requesting the recall. (T-1). Written legal reviews by legal offices at intermediate levels of command are not required unless the intermediate legal office or reviewing commander non-concurs with the required legal review or recommendation of a subordinate reviewing commander. However, MAJCOM coordination on the recall request is required and must be annotated in the recall package. (T-1).

4.16.1. Changed to read: Retired active duty personnel who are entitled to receive pay (Article 2(a)(4), UCMJ), retired members of a reserve component receiving hospitalization from an armed force (Article 2(a)(5), UCMJ), and retired reserve component members not receiving pay (see Morgan v. Mahoney, Misc. Dkt. No. 99-03, 1999 CCA LEXIS 173 (A.F.C.C.A. 15 Mar. 1999)), may be tried by court-martial for acts or omissions committed while on active duty or inactive duty training or in Federal status, if their conduct clearly links them with the military or is adverse to a significant military interest of the United States. Retired active duty personnel who commit misconduct after retirement will not ordinarily be tried by court-martial unless the alleged misconduct clearly links them to the military or is adverse to a significant military interest of the United States. See AFPD 51-2, paragraph 2.5.2.

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*5.6: Changed to read: Disposition Other Than Trial

*5.6.1. Added: Notification to All Victims and Witnesses. In cases where allegations against a suspect are disposed of other than by trial, a victim or witness may want to be informed of the alternate disposition. Victims and witnesses should be provided as much relevant information as possible, consistent with the privacy rights of the accused. In accordance with 5 U.S.C. ? 552a (the Privacy Act), records and information related to administrative disposition, including nonjudicial punishment and administrative discharge proceedings, may potentially be disclosed as a routine use to victims and witnesses for consistency with the requirements of the Victim and Witness Assistance Program (VWAP); Article 6b, UCMJ; and Title 42 United States Code ? 10607(c), Services to Victims. When analyzing Privacy Act exceptions, consider the Air Force's interest in fostering cooperation of victims and witnesses in the instant case, whether the accused has made any disclosures about the action or disposition that would diminish his/her expectation of privacy, and other relevant factors. Because each case presents unique facts and circumstances, decisions to release information are reviewed on an individualized basis, in light of the Privacy Act and the exceptions allowing disclosure, as provided therein.

*5.6.2. Added: Timely Non-Referral Decision and Notification(s) to Victims of Qualifying Offenses. In accordance with FY20 NDAA, Section 540C, in any case where a qualifying offense has been preferred the convening authority that possesses authority to dispose of the offense must make a disposition decision in a timely manner. (T-0).

*5.6.2.1. Added: Non-Referral Decision--Insufficient Evidence to Support the Prosecution. If the convening authority assesses there is insufficient evidence to support the prosecution of a qualifying sex-related offense and decides not to refer such specification to a general or special court-martial, any further disposition recommendation or decision and corresponding notification to the victim must be made within 60 days of the convening authority's non-referral decision. (T-0). If the disposition decision cannot be made within 60 days of the non-referral decision, notice of the reason for the delay must be explained and memorialized in writing and provided to the alleged victim. (T-0). That notice must be provided to the alleged victim no later than the 60th day (if a disposition decision is not made and conveyed to the victim in the first 60 days) and within every 30-day period thereafter. (T-0). Note: Notification under this section, if made within the first 30 days, satisfies the requirements under FY20 NDAA, Section 549, and AFMAN 51-207, paragraph 6.1.2.

*5.6.2.2. Added: Applicable "Further Disposition." For purposes of this requirement, "further disposition" includes no action, administrative action (verbal counseling, RIC, LOC, LOA, or LOR), administrative separation, non-judicial punishment, referral of a lesser included or related offense that does not constitute one of the qualifying offenses, or subsequent referral of the qualifying offense.

*5.6.2.3. Added: Form of the Notification. The convening authority's disposition notification and delay notifications are provided by the servicing wing-level legal office on behalf of the convening authority. The servicing legal office should utilize the templates on the Virtual Military Justice Deskbook to provide such notifications. This mandate does not require the release of the disposition documentation and is intended to serve only as notice of the convening

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authority's disposition decision. Note: Prior to releasing any disposition documentation (e.g., completed administrative paperwork or nonjudicial punishment), consult the balancing test in paragraph 5.6.1.

*5.6.2.4. Added: Qualifying Offenses. For purposes of this requirement, qualifying offenses are offenses committed in violation of Articles 120, 130 (Article 120a if alleged to have been committed prior to 1 January 2019), 120b, 120c, 125 (if alleged to be nonconsensual and to have been committed prior to 1 January 2019), and 80 (attempts of these offenses).

*5.6.2.5. Added: Allegation-Specific Nature of the Requirement. This requirement applies to each qualifying offense alleged. For example: in a case with one victim that alleges three separate sexual assaults were committed by the accused, this requirement applies to each specification. Thus, if the convening authority decides not to refer any one of the specifications, this notification is required. (T-0).

*5.6.2.6. Added: Alternate Disposition by Lower Level Commander. If a case is returned to a subordinate commander who lacks convening authority for final disposition, the disposing commander must notify the convening authority of the final disposition. (T-0). The convening authority is then responsible for notifying the victim of the ultimate disposition of the allegation.

*5.6.2.7. Added: Victim Declination to Receive Further Notifications. If at any point in the process, a victim declines to receive future contact with the convening authority regarding the disposition of the case, this declination must be provided in writing from the victim or victim's counsel. (T-1). If the victim and/or counsel refuse to provide such documentation, VWAP personnel must document the refusal and retain such documentation in the case file. (T-1).

5.7.3.3. Added: An SPCMCA that determines not to refer a case listed in paragraph 5.7.1 to trial by court-martial shall notify the victim at least monthly of the status of the pending final disposition decision until the victim is notified of the final disposition (e.g., no action taken, administrative action taken, nonjudicial punishment imposed, or dismissal of the charge(s)). (T0). This monthly requirement is satisfied when the servicing legal office provides written or oral notification to the victim or the victim's counsel. Oral communications will be summarized in a Memorandum for Record or notated in AMJAMS. (T-3).

5.7.5.3. Added: If the SPCMCA recommends referring a case listed in paragraph 5.7.1 to trial by court-martial but the GCMCA determines not to refer the case to trial by court-martial, the GCMCA shall notify the victim at least monthly of the status of the pending final disposition decision until the victim is notified of the final disposition (e.g., no action taken, administrative action taken, nonjudicial punishment imposed, or dismissal of the charge(s)). (T-0). This monthly requirement is satisfied when the servicing legal office provides written or oral notification to the victim or the victim's counsel. Oral communications will be summarized in a Memorandum for Record or notated in AMJAMS. (T-3).

5.7.4.1. Changed to read: Victim Preference for Civilian or Military Prosecution. Victims of any sex related offense that occurs in the United States have the right to express a preference as

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to whether the offense will be prosecuted by court-martial or in a civilian court with jurisdiction over the offense.

5.7.4.1.1. Added: Sex Related Offense Defined. For purposes of this requirement, "sex related offense" is defined as any allegation arising under Articles 120, 120a, 120b, 120c, or 125, UCMJ, including attempts thereof, which occurred prior to 1 January 2019; or any allegation arising under Articles 120, 120b, 120c, or 130, UCMJ, including attempts thereof, which occurred on or after 1 January 2019.

5.7.4.1.2. Added: Obtaining Victim's Preference. In all cases, including those arising in exclusive federal jurisdiction, where a sex related offense is alleged to have occurred in the United States, the SJA must obtain the victim's preference as to whether the case should be prosecuted by the military or civilian prosecutors. (T-0). Such preference will be obtained on the template found at Figure A2.1. (T-1). If the victim refuses to complete the form, the SJA must document on the template that the victim refused to complete the form. (T-1). A copy of the notification memorandum and the indorsement with the victim's preference must be maintained in the case file. (T-1).

5.7.4.3. Added: Civilian Prosecution Preferred.

5.7.4.3.1. Added: If the offense was committed in an area of concurrent jurisdiction and the victim indicates a preference for civilian prosecution, the SJA should determine whether the victim has a preference for prosecution by the state or federal government or has no preference.

5.7.4.3.2. Added: If the offense was committed in an area of exclusive federal jurisdiction and the victim indicates a preference for civilian prosecution, the convening authority (or SJA on behalf of the convening authority) must notify the United States Attorneys' Office. In the event the victim indicates he or she prefers civilian prosecution of the sex related offense, the convening authority (or SJA on behalf of the convening authority) must notify the prosecutorial agency or agencies in that jurisdiction of the victim's preference. (T-0). This can be done using Figure A2.2. The convening authority (or SJA on behalf of the convening authority) must then notify the victim of the civilian agency's response. (T-0). This can be done using Figure A2.3.

5.7.4.4. Added: Although the victim's preference is not binding, the initial disposition authority must consider the victim's views before taking action. (T-1).

5.7.5.2. Changed to read: When final disposition of the alleged offense is complete, the GCMCA signs the written acknowledgment of the initial disposition authority's action. (T-0). This responsibility is not delegable. A template review is included at Figure A2.8. A copy of this review serves as a notice of disposition and is forwarded by the legal office supporting the SPCMCA to AFOSI. Refer to Chapter 15 for additional information on disposition data submission to law enforcement.

5.7.6.1. Changed to read: In cases where an Air Force Reserve member is accused of committing a covered offense, as listed in paragraphs 5.7.1.1-5.7.1.3, while on active duty, the RegAF SPCMCA to whom the accused is assigned is responsible for obtaining victims views on

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disposition as detailed in paragraphs 5.7.4.1-5.7.4.2. The RegAF SPCMCA and RegAF GCMCA to whom the accused is assigned are responsible for making and reviewing the initial disposition decision for covered offenses, as detailed in paragraphs 5.7.5.1 and 5.7.5.2. The servicing legal office responsible for advising the RegAF SPCMCA and GCMCA regarding the initial disposition is the RegAF legal office that services the RegAF SPCMCA to whom the accused is assigned, unless such provision of advice has been withheld to the RegAF GCMCA legal office level. Note: Air Force Reserve Command (AFRC) is not responsible for the processes defined in paragraph 5.7.4.1-5.7.4.3 or 5.7.5.1-5.7.5.2. However, servicing RegAF legal offices should consult with AFRC/JA prior to making a recommendation as to initial disposition.

5.14.3. Added: If the deposition is taken by agreement of both trial and defense counsel, the convening authority is not required to produce an order, but must still detail a deposition officer as noted in paragraph 5.14.2.

6.3.3. Changed to read: Exception to Article 30(a) Proceeding Requirement. Prior to referral, government counsel may also seek authorization from the GCMCA to issue an investigative subpoena. See R.C.M. 703(g)(3)(D)(v). However, blanket authorizations for investigative subpoenas are not authorized (i.e., one subpoena for the entirety of a case). (T-0). Government counsel must request authorization from the GCMCA for each pre-referral investigative subpoena. Authorization by the GCMCA to government counsel must be in writing. (T-1). The GCMCA may delegate the authority to approve pre-referral investigative subpoenas to subordinate SPCMCAs, but such delegation must be in writing. (T-1). Grant of a subpoena under this provision does not require an Article 30a proceeding.

6.3.6. Added: Nothing in paragraph 6.3, et seq, is intended to limit the ability of a trial counsel to issue an investigative subpoena for evidence after referral of charges, in accordance with R.C.M. 703(g)(3)(D).

6.14. Added: Post-Referral Requests for Warrants or Orders. Article 46, UCMJ, and RCM 703A allow for military judges to issue court orders or search warrants both pre-referral (and pre-preferral) and post-referral. An Article 30a, UCMJ, proceeding is only required pre-referral. Requests for court orders or search warrants post-referral would instead require an Article 39(a), UCMJ, hearing.

9.4.1.5. Added: A copy of the referred charge sheet must be served upon the accused in accordance with R.C.M. 602. (T-0).

9.11.1. Changed to read: In cases where the GCMCA refers no covered specifications, as listed in paragraph 5.7, as to a victim of such an offense, the GCMCA forwards the decision to a superior convening authority for review as described below. (T-0). See paragraph 5.7; Fiscal Year 2014 National Defense Authorization Act, Section 1744(d).

9.11.3. Changed to read: Secretary of the Air Force Review of Non-Referral Decision. In any case where the GCMCA SJA's pretrial advice recommends referring a covered charge or specification to a court-martial and the GCMCA non-concurs, such that the effect of that non-

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concurrence is that no covered offense as to that victim would be referred to trial, then the GCMCA forwards the non-referral decision and the corresponding case file, as defined in paragraph 9.11.4, to the Secretary of the Air Force for review. The case file is transmitted to JAJM through functional channels. Figure A5.4 is a template for the Secretary of the Air Force's response.

9.12.2. Changed to read: Notice to Accused and Opportunity to Object. Inclusion of the special language in paragraph 9.12.1 and service of the memorandum discussed in paragraphs 9.12.2.1 and 9.12.2.2 serve as notice to the accused that the charges are being referred to a special court-martial by military judge alone. Prior coordination between accused's counsel, if represented, and the SJA or detailed trial counsel is encouraged.

9.14. Added: Special Order Convening Courts-Martial. Convening orders are prepared in accordance with R.C.M. 504, 1302, and this chapter. A sample convening order is provided at Figure A7.2.

9.14.1. Added: Authority Cited in Convening Order. The current Department of the Air Force Special Order (i.e., the "Worldwide Convening Order"), or other document authorizing the commander to convene courts is cited as authority for convening the court-martial.

9.14.2. Added: Amendments. Convening orders may be amended. A sample amended convening order is provided at Figure A7.3. The original order should be amended to reflect changes in court members, except when members are excused without replacement. If excusal of a member without replacement is not reduced to writing, the military judge or trial counsel announces the excusal on the record. No more than two amendments to the original order may be issued. (T-1). If it is necessary to further amend the convening order, a new order should be published with a savings clause that transfers all cases in which the court has not yet been assembled to the new order. A sample order with a savings clause is included at Figure A7.4. All amendments to a convening order and all convening orders with a savings clause should cite all prior orders. Copies of all convening orders and amendments to convening orders should be provided to the military judge and included in all copies of the ROT.

9.14.3. Added: Numbering Convening Orders. Orders convening courts-martial are special orders that are numbered consecutively on a fiscal year basis, starting with number 1. The number follows an A-series letter prefix. Use an A letter prefix for general courts-martial, an AB letter prefix for special courts-martial, an AC letter prefix for summary courts-martial, and an AD letter prefix for special courts-martial by military judge alone under Article 16(c)(2), UCMJ.

9.14.4. Added: Identification of Members. Special orders convening a court-martial should contain the name, rank and unit of all persons detailed. Do not include personal information (e.g., social security number). If a detailed member is not under the command of the convening authority, ensure the special order clearly indicates that the member was detailed with the concurrence of the member's commander.

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