The 2023 NDAA: Military Personnel Provisions
It’s a now-annual ritual for many of us: seeing what gets actually included in Congress’ year-end, must-pass omnibus military spending bill, after all the horse-trading is done. It isn’t usually like 1865, as the above shot from LINCOLN portrays it. but it’s wheres some of the most consequential measures are often enacted.
In the last few years, NDAAs have included landmark military justice reforms and efforts to try to address racism and white supremacy, the latter creating massive backlash from conservative lawmakers including former president Trump. So what’s in this years’ package, named for one of the sources of that backlash, James Mountain Inhofe?
Yes, it’s the James M. Inhofe National Defense Authorization Act of 2023. Each year someone gets their name planted on the bill, just as they’re about to leave Congress; last year it was Texas Rep Mac Thornberry, who’d decided in 2020 to stop fighting off MAGA challengers and was replaced by Ronny Jackson, former White House physician during the Trump Administration. Thornberry, born in 1958, was a spring chicken compared to the 88-year-old Oklahoma Senator whose name adorns this year’s bill.
So what’s in this 787-page compilation? Most famously, a reversal on the mandate for the COVID vaccine, though none of the other dozens of vaccines required by the military are mentioned, and a pay bump for military personnel of 4.6. Also making headlines was this, 150+ years too late: “The President is authorized to appoint Ulysses S. Grant posthumously to the grade of General of the Armies of the United States.”
This year’s NDAA also contained, besides the now-customary dizzying number of required studies and briefings, a handful of quite concrete changes for the daily life of military personnel.
The Best Good News: Military Justice Improved, Starting in 2024
As we’ve long covered in ON WATCH, the military justice system hasn’t looked just at all for many servicemembers subject to abuse. Until the 2022 NDAA, commanders had complete authority over the jurisprudence concerning sexual harassment and assault. The result of that was visible in the recent Netflix documentary I Am Vanessa Guillen, about the Army private who died in 2020 and whose family led a movement to press for changes in the system. Asked how that system decreases the prospect of justice, MLTF Director Kathleen Gilberd made a list: “Assault survivors not believed or taken seriously. Commanders and convening authorities being ed around the issue or tending to favor ‘buddies’ accused of assault. Commanders sending cases to non-judicial punishment or lower special courts-martial. Too many buying into the lie that women, in particular, make sexual assault accusations to avoid transfer, get away from units they don’t like or for other personal reasons.” The only way out, many of us believed, was to place these cases– the convening authority, the prosecutorial jurisdiction—in the office of an independent office for investigation and jurisprudence.
June 2021 saw the introduction of the Vanessa Guillén Military Justice Improvement and Increasing Prevention Act (HR4104), which included many long-sought changes tp the way the Department of Defense handles cases of sexual harassment, sexual assault, and domestic violence. While the legislation was first blocked in the Senate by then-Senator Inhofe, much of the Guillen Act was incorporated into the 2022 NDAA, most notably a brand-new department known as the Office of Special Trial Counsel, its staff empowered to call for general courts-martial.
Other provisions of that NDAA were based on the 80 recommendations of the Independent Review Commission on Sexual Violence in the Military, including hiring professionals to staff all sexual assault prevention and response offices, rather than service members in a collateral duty, and a new evaluation field that requires raters to describe how a service member upholds the principles of “Sexual Assault Prevention and Response.”
An entire bureaucracy on matters usually tagged as SHARP—Sexual Harassment and Assault Response and Prevention—has arisen in response, but until now commanders retained the ultimate authority over how such offenses are handled. Now, the services are given two years to build their Special Trial Counsel offices, and until 2028 to fulfill all of the provisions of the 2022 NDAA. That slow-walking appears to have contributed to a worsening of the problem, in the spring of 2022, Military Times reported that “Not only is unwanted sexual contact rising, but fewer people are opting to report it and fewer perpetrators are being legally punished.” The legislators who’d gotten the Guillen Act to passage therefore worked hard on successor bills that were then absorbed into the 2023 NDAA. This long list of changes are included in Title V of the NDAA, “Military Personnel Policy,” Subtitle E—Military Justice and Other Legal Matters.
Taken together with the establishment of the Office of Special Trial Counsel in each Service Secretariat, the combined 2022 and 2023 NDAAs greatly reduce the role of defendants’ commanders in the conducting of Courts-Martial for military defendants accused of certain crimes under the Uniform Code of Military Justice.
In accordance with last year’s bill, the decision to refer certain charges to Court-Martial will be made by the Special Trial Counsel instead of the defendant’s commander beginning in January 2024. And this year’s bill transfers additional duties from the defendant’s commander to the Special Trial Counsel. These include decisions on grants of immunity, the hiring of expert witnesses and the taking of depositions.
Additionally, the defendant’s commander will no longer name the members of the court-martial panels/juries. Whenever possible, the panel members will be chosen randomly. Commanders will retain the authority they need to maintain the good order and discipline of their units, but authority for adjudicating many felony-level crimes—including sexual assault––will transfer to the Special Trial Counsel.”
The office will be the decision-maker on whether to file charges on 11 crimes: murder, manslaughter, rape, sexual assault, rape of a child, sexual assault of a child, other sexual misconduct, kidnapping, domestic violence, stalking, retaliation, child pornography and nonconsensual pornography. All four services have already selected officers to build their STC divisions.
The deadline for completing the transition to STCs is the end of 2023. If the services comply, the volume of investigations may finally increase. MLTF will be watching closely, and may need to develop new lines of communication with these offices.
Speaking of which, civilian counsel are acknowledged explicitly in this same title: Section 549B and C orders DoD to develop a policy about information-sharing with outside counsel, taking into account privacy concerns and the requirements of the UCMJ. Section 549 specifically names, but does not forbid, the sharing of forensic and biometric information. In addition, “Not later than one year after the date of the enactment of this Act, the Secretary of Defense, acting through the head of the Sexual Assault Prevention and Response Office of the Department of Defense, shall ensure that information on the availability of legal resources from civilian legal service organizations is distributed to military-connected sexual assault victims in an organized and consistent manner.” Which civilian legal organizations will participate is not specified.
Bad News: What’s All That About Diversity?
Two years ago, our NDAA summary noted changes in the wake of the “national reckoning on race” that followed the May 2020 police killing of George Floyd. Its first main section was entitled “Diversity, Military Racism and White Supremacy,” and included provisions establishing DOD’s Chief Diversity Officer, ensuring racial equity in recruitment and promotions, and the renaming of former Confederate bases. Its multiple sections required that diversity and inclusion be accounted for at every level, from contracting to special forces. Those provisions sparked a backlash among Republicans on the Senate Armed Services Committee, who in November 2021 denounced it as “too woke” in a statement from Senator Inhofe’s office. Nonetheless, the 2022 NDAA tried to build on that process, requiring each Service Secretary to conduct ongoing diversity, equity, and inclusion (DEI) training programs, including training on racism, discrimination, harassment, reprisal, and more.
By comparison, the Inhofe NDAA has relatively minimal mention of diversity, except in supply chains and procurement. And most critical: NDAA attempts to reverse the tentative steps the Pentagon has taken against white-supremacist extremism following January 6, 2021, when some soldiers and veterans marched on the Capitol with Confederate flags. In its cover letter for the Senate markup, the committee “issued nonbinding language calling for an “immediate” halt to Pentagon counter-extremism programs,” and the final draft cuts provisions passed by the House Armed Services Committee, which would have required the services to collect and report on “the threat posed by groups such as domestic terrorists, criminal gangs and organizations committed to advancing white supremacy or antisemitism.” Language about the influence of foreign terrorism remains in the bill, but any intention to address domestic terrorism has been eliminated.
But hey, Ulysses Grant has been promoted to general! That was about as anti-racist as the Inhofe bill was about to get.
Good News, Part II: Military Socialism Tweaked
Military members want to know what they’re entitled to? A little more, after this NDAA. Headlines about military families struggling to feed their kids may have shamed lawmakers into providing more than the much-ballyhooed 4.6 percent pay raise.
- Basic Needs Allowance. Active-duty service members with dependents, whose gross household income falls below 150% of federal poverty guidelines, will soon be able to apply for a Basic Needs Allowance, or BNA. The BNA would increase paychecks to aid military families in need, though with a complex application process that counts much other aid (e.g. housing allowances or the WIC food aid program) as income that might disqualify otherwise-eligible personnel.
- Parental Leave and Child Care. The long-sought 12 weeks of parental leave are scheduled to kick in, as promised in the 2022 NDAA. Previously, services varied as to how long parents could take off; now, across DoD it’s a standard 12 weeks after the birth or adoption of a child. NDAA also authorizes the building of 7 new Child Development Centers and a pilot program to underwrite childcare expenses.
Mental Health Parity. Alaska Senator Lisa Murkowski lauded inclusion in the NDAA of her Guarding Mental Health Act, which requires the Coast Guard (USCG) to achieve parity with the policies of the Department of Defense, allowing members to seek treatment for mental and behavioral health challenges without automatically being processed for discharge.
- Military Children. Requires a pilot program to hire special educator inclusion coordinators at Child Development Centers with high populations of military children enrolled in the Exceptional Family Member program.
- Forever Chemicals Need Studying. Years of efforts to focus attention on what some call “forever chemicals” in military water sources have led to Subtitle D of Section III, Operations and Maintenance: Treatment of Perfluoroalkyl Substances and Polyfluoroalkyl Substances . From Sec. 341 to 347, NDAA authorizes funding for multiple studies on the effects of PFAS and one on uses in which such substances are still needed. Also, in Sec. 343. Prizes for development of non-PFAS-containing turnout gear.”
What About War and Peace, Anyway?
As an appropriations bill, the NDAA’s scope spans the globe, with sections for everywhere the military has a presence from the Middle East to Southeast Asia. Fleets and facilities are reauthorized, multiple studies commissioned including of the effects of military justice reform. But you have to really squint to find evidence of the U.S. military’s actual activities. You have to go to Article X, General Provisions, which first authorizes anti-drug policing in Colombia and about 10 plans for naval shipyards. After all that naval modification comes Subtitle D, Counterterrorism.
But the entirety of the Counterterrorism subtitle, from Section 1031 to 1033. is some variation on this: “ Extension of prohibition on use of funds to close or relinquish control of United States Naval Station, Guantanamo Bay, Cuba. “ Or to move detainees “to certain countries” including the United States, or to modify any US prison facilities to enable the detention of prisoners transferred from Gitmo. These are all existing prohibitions, just extended here. The rest of what the United States does in the face of terrorism seems embedded in the military firmament, 20+ years after September 11, 2001.
This NDAA does acknowledge the blowback from U.S. action against suspected terrorists abroad=specifically, the daily airstrikes against suspected hostiles. Section 1065, under Reports, authorizes the creation of a Civilian Protection Center of Excellence (CP CoE), to serve as the focal point for matters related to civilian casualties and other forms of civilian harm resulting from U.S. military operations, and to institutionalize and advance efforts to prevent, mitigate, and respond to civilian harm.
The NDAA also updates requirements to the annual report on civilian casualties in connection with U.S. military operations, to include further information that can help illuminate the different accounting of civilian harm documented by DoD and civil society organizations. The authorized funding level is a mere $25 million, which might not seem to be adequate to “address civilian harm” in all U.S. operations. But it’s a start, and MLTF might want to monitor the development of this CoE. Who’s providing that “further information?” Could NLG members seek to be part of the process?
As Kathleen Gilberd noted in the 2021 NDAA summary linked above, the NDAA is so brimming with commitments that half our job in the MLTF is to look for concrete demonstration of these commitments, and any unintended consequences. We can also support those speaking out about what’s missing.
Also published in ON WATCH, the quarterly of the Military Law Task Force of the National Guild.