Libertas et Veritas

Transforming Military Justice

In December 2021 Congress enacted sweeping reforms to the Uniform Code of Military Justice (UCMJ) as part of the Fiscal Year 2022 National Defense Authorization Act. The reforms respond to years of advocacy from survivors of sexual violence and their families. They remove prosecution of sexual assault and related crimes from the traditional chain of command and establish an Office of the Special Trial Counsel in each service. Each Lead Special Trial Counsel reports directly to the service secretary, ensuring independence from the accused’s commander. Decisions to prosecute are binding on commanders, and the reforms preserve the independence of judges and juries. Prosecutors must meet training and experience requirements, and Congress mandated the inclusion of race and ethnicity data in annual reports. The law also adds sexual harassment as a standalone offense under the UCMJ and requires independent investigations of harassment complaints¹.

The Department of Defense has since stood up Offices of the Special Trial Counsel (OSTC) across the services. In a January 2024 background briefing, officials explained that the Army’s office includes 65 specially trained prosecutors who are certified to handle serious crimes such as sexual assault, domestic violence and murder. Before certification, each prosecutor must complete a tailored training program. The OSTC has independent decision authority to evaluate and prosecute cases based on evidence, free from outside influence. Officials emphasized that prosecutors will engage directly with victims at every stage of the case and that independence is intended to restore trust in the military justice system².

Founded Cases & Titling: Consequences for the Accused

Determining whether a reported offense is founded or unfounded has significant implications for those named in a Criminal Investigation Division report. According to an Army Lawyer article explaining the titling process, titling is the operational decision to place a person’s name in the subject block of a report of investigation when credible information suggests they may have committed an offense. It is not a legal judgment, and the threshold is merely “credible information,” not probable cause. A founded offense means that investigators have determined that a crime occurred, whereas unfounded means no offense took place; another category, “insufficient evidence,” reflects the inability to establish probable cause. The article stresses that a founded determination is an investigative decision independent of any court proceedings and that titling a subject can occur even when there is insufficient evidence to substantiate the subject’s guilt⁷.

Once a person is titled, their name remains in the law‑enforcement database even if the offense is later deemed unfounded or unsubstantiated. The article illustrates this with an example: a soldier listed as a subject in a theft investigation produces a receipt proving he purchased the allegedly stolen item. The offense remains founded because the theft occurred, but probable cause does not exist to believe he committed it. Despite being cleared, the soldier stays titled in the report, and some agents mistakenly mark such cases as unfounded, conflating whether a crime occurred with whether the subject committed it. The article cautions that this confusion can lead to unjust titling decisions and emphasizes that exonerated individuals may still face lasting records in the Criminal Investigation Command database⁸.

Administrative decisions confirm the potential harm from erroneous titling. In a 2024 Army Board for Correction of Military Records case, a service member sought to remove his name from a CID report after a court‑martial found him not guilty. The board noted that he had been mistakenly titled and that the false allegations cost him promotion opportunities and forced him to fight to restore his career; yet because of the titling decision, adverse information remained in the database⁹. Such cases illustrate how CID’s practice of marking offenses as founded—even when evidence later exonerates the subject—can damage reputations and careers.

Due Process and Suspect Rights

Fairness in military justice requires that service members under investigation have access to the evidence against them and an opportunity to respond. A 2022 Board for Correction of Military Records case highlights systemic problems: the applicant complained that he was not given the standard five days to submit matters in defense before nonjudicial punishment, was only allowed to see the CID report minutes before the hearing, and that a board member conducted an ex parte investigation. The board noted that evidence about a key witness’s credibility was excluded, the legal advisor gave erroneous guidance on the rules of evidence, and prosecutors made unfounded statements. The board concluded that the nonjudicial punishment and board of inquiry violated due process and equal treatment requirements¹⁰. These findings underscore how investigative practices can mislead suspects and hinder their ability to defend themselves.

Combined with the shortcomings identified in the Fort Hood independent review—where inexperienced CID agents used a checklist‑driven approach and sometimes closed cases without thorough inquiry—these cases highlight how investigative errors and incomplete evidence can harm both victims and the accused. Ensuring that subjects are informed of allegations, allowed to review investigative reports, and given a meaningful opportunity to respond is essential to maintaining trust in the military justice system.

Examples of CID Negligence

High‑profile cases have underscored the need for stronger oversight of the Army’s Criminal Investigation Division. An independent review of the Fort Hood installation released in December 2020 found systemic leadership failures that fostered a permissive environment for sexual harassment, assault and violence. The review reported that the Fort Hood CID detachment lacked experienced agents and, because of resource shortages, relied on a checklist‑driven approach to investigations. Deaths and serious crimes sometimes went without thorough inquiry, prompting national outrage and the eventual replacement of the CID’s commanding officer³.

Oversight audits have also revealed procedural shortcomings. A Department of Defense Inspector General evaluation of the services’ major procurement‑fraud programs examined 133 cases closed between 2017 and 2019. Investigators discovered that case agents frequently failed to notify centralized oversight offices, depriving themselves of legal advice and opportunities to recommend remedies. Conflicting guidance between service regulations and a handful of poorly developed investigations prompted recommendations for better supervisory procedures and notification policies⁴.

Gender Bias and Male Victims

Ensuring fairness in military investigative programs requires attention to gender bias. At a DoD domestic‑abuse victim advocate training session, Family Advocacy Program manager Kathy Robertson observed that advocates are seeing more male victims. She noted that men are often reluctant to report domestic abuse and that enabling men to come forward is vital for their safety and wellbeing⁵.

Allegations of bias have surfaced in individual cases. In 2018 a Navy sailor at Joint Base Pearl Harbor‑Hickam, Petty Officer 1st Class Jon Stremel, filed a complaint alleging that the base’s Family Advocacy Program ignored his reports of abuse because he was a man. According to a Honolulu Civil Beat investigation, a preliminary command inquiry found that FAP supervisors withheld police reports, photographs and other documents from the Incident Determination Committee, leaving the committee without a full understanding of the case. A witness said anything concerning a male victim was disregarded, and the investigation recommended a comprehensive review of FAP policies and staff training. The Navy has since been reviewing its procedures to ensure that all victims receive fair consideration⁶.