R 272000Z JUN 12 ALCOAST 308/12 COMDTNOTE 1620 SUBJ: WITHHOLDING INITIAL DISPOSITION AUTHORITY UNDER UCMJ IN CERTAIN SEXUAL ASSAULT CASES A. COMDT COGARD WASHINGTON DC 271439Z JAN 12/ ALCOAST 037/12 B. CCG DECISION MEMO 5810 OF 25 JUN 12 (NOTAL) C. THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2012, PUBLIC LAW 111-84 D. UNIFORM CODE OF MILITARY JUSTICE, TITLE 10 USC 801-941 E. SEXUAL ASSAULT PREVENTION AND RESPONSE (SAPR) PROGRAM, COMDTINST M1754.10 (SERIES) F. COAST GUARD INVESTIGATIVE SERVICE ROLES AND RESPONSIBILITIES, COMDTINST 5520.5 (SERIES) G. MILITARY JUSTICE MANUAL, COMDTINST M5810.1 (SERIES) 1. IN REF (A) THE COMMANDANT REITERATED THE DUTY OF ALL MEN AND WOMEN IN THE COAST GUARD TO RESPECT THEIR SHIPMATES BY ACTING WITH COURAGE TO PREVENT OR STOP INCIDENTS OF SEXUAL ASSAULT, HAZING, HARASSMENT, AND DISCRIMINATION, AND TO REPORT SUCH INCIDENTS IF THEY DO OCCUR. ON 25 JUNE 2012, THE COMMANDANT ISSUED FURTHER DIRECTION IN REF (B) WITH RESPECT TO OUR GOAL OF ELIMINATING SEXUAL ASSAULT IN THE COAST GUARD. 2. ON 31 DECEMBER 2011, PRESIDENT OBAMA SIGNED REF (C), THE 2012 NATIONAL DEFENSE AUTHORIZATION ACT (NDAA). THE NDAA INCLUDES SIGNIFICANT AMENDMENTS TO THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ), INCLUDING CHANGES AFFECTING SEX OFFENSES, INCLUDING A COMPLETE REWRITE OF ARTICLE 120 (RAPE AND SEXUAL ASSAULT). THE SEX OFFENSE AMENDMENTS IN REF (D) TAKE EFFECT ON 28 JUNE 2012. THE FULL TEXT OF THESE AMENDMENTS IS AVAILABLE AT: HTTP://WWW.USCG.MIL/LEGAL/MJ/MJ(UNDERSCORE)DOC/MCM2012.PDF 3. BECAUSE SEXUAL ASSAULT PREVENTION AND RESPONSE IS SO IMPORTANT, AS OF 28 JUNE 2012, THE COMMANDANT IN REF (B) WITHHOLDS INITIAL DISPOSITION AUTHORITY FROM ALL COMMANDERS WHO DO NOT POSSESS AT LEAST SPECIAL COURT-MARTIAL CONVENING AUTHORITY, HOLD THE RANK OF CAPTAIN (O-6) AND HAVE AN ASSIGNED STAFF JUDGE ADVOCATE FOR ANY ALLEGATION OF RAPE, SEXUAL ASSAULT, AGGRAVATED SEXUAL CONTACT, ABUSIVE SEXUAL CONTACT, FORCIBLE SODOMY, AND ALL ATTEMPTS TO COMMIT SUCH OFFENSES, IN VIOLATION OF ARTICLES 120, 125, AND 80 OF THE UCMJ. THE COMMANDANTS WITHHOLDING DECISION ALSO INCLUDES ANY ALLEGED COLLATERAL MISCONDUCT RELATED TO THE SEXUAL OFFENSES LISTED ABOVE, INCLUDING ANY ALLEGED MISCONDUCT OF THE ALLEGED VICTIM (I.E., UNDERAGE DRINKING, UA, ETC.). LEGAL SERVICE COMMAND IS CONSIDERED THE ASSIGNED STAFF JUDGE ADVOCATE FOR O-6 BASE COMMANDERS. 4. THIS DECISION MEANS THAT ONLY THE FOLLOWING COMMANDERS HAVE INITIAL DISPOSITION AUTHORITY: A. FLAG OFFICERS DESIGNATED AS GENERAL COURT-MARTIAL CONVENING AUTHORITY (I.E., AREA COMMANDERS, DISTRICT COMMANDERS, SUPERINTENDENT, COAST GUARD ACADEMY, DIRECTOR OF OPERATIONAL LOGISTICS, COMMANDER, PSC), B. TRAINING CENTERS WITH AN ASSIGNED STAFF JUDGE ADVOCATE, C. BASE COMMANDERS IN PAYGRADE O-6, AND, D. COMMANDER, DEPLOYABLE OPERATIONS GROUP. 5. ALL COMMANDERS WITHOUT INITIAL DISPOSITION AUTHORITY (I.E., COMMANDING OFFICERS, COMMANDERS AND OFFICERS IN CHARGE NOT LISTED IN PARAGRAPH 4, ABOVE) WHO RECEIVE A REPORT THAT A SEXUAL ASSAULT MAY HAVE OCCURRED MUST REPORT THAT ALLEGATION TO THE NEXT OFFICER IN THE CHAIN OF COMMAND LISTED IN PARAGRAPH 4, ABOVE. THE ALLEGATION OF SEXUAL ASSAULT MUST ALSO BE REPORTED TO THE SERVICING LEGAL OFFICE AND TO CGIS TO COMMENCE AN APPROPRIATE INVESTIGATION IAW REF (E) AND (F). COMMAND LEVEL INVESTIGATIONS OF SEXUAL ASSAULT PREDICATED BY COMMANDERS NOT LISTED IN PARAGRAPH 4 ARE PROHIBITED. 6. ALL COMMANDERS WITHOUT INITIAL DISPOSITION AUTHORITY (I.E., COMMANDING OFFICERS, COMMANDERS AND OFFICERS IN CHARGE NOT LISTED IN PARAGRAPH 4, ABOVE) WHO RECEIVE A REPORT THAT A SEXUAL ASSAULT MAY HAVE OCCURRED MAY NOT TAKE ANY ACTION TO DISPOSE OF THE CASE WITHIN THE MEANING OF RULES FOR COURTS-MARTIAL (RCM) 306 OR RCM 401. THIS PROHIBITION INCLUDES TAKING THE ACCUSED OR VICTIM TO MAST OR DISMISSING THE CASE WITH NO ACTION. HOWEVER, NOTHING IN THIS DIRECTIVE AFFECTS THE AUTHORITY OR RESPONSIBILITY OF COMMANDERS OF AN ACCUSED OR VICTIM FROM TAKING OTHER DISCRETIONARY ACTIONS RELATED TO THE SUSPECT OR VICTIM SUCH AS PLACING A SUSPECT OF AN INVESTIGATION INTO PRETRIAL RESTRAINT UNDER RCM 304 OR PRETRIAL CONFINEMENT UNDER RCM 305, ISSUING MILITARY PROTECTIVE ORDERS, AND PROVIDING AND COORDINATING VICTIM SUPPORT AND ADVOCACY AS MANDATED IN REF (E). 7. ONLY COMMANDERS WITH DISPOSITION AUTHORITY AS IDENTIFIED IN PARAGRAPH 4 MAY TAKE INITIAL DISPOSITION ACTION. INITIAL DISPOSITION INCLUDES: A. TAKING NO ACTION, B. IMPOSING NON-JUDICIAL PUNISHMENT (MAST), C. TAKING ADVERSE ADMINISTRATIVE ACTION, D. FORWARDING OR DISPOSING OF COURT-MARTIAL CHARGES UNDER RCM 401, OR, E. FORWARDING THE MATTER FOR DISPOSITION BY ANOTHER COMMANDER. 8. COMMANDERS HOLDING INITIAL DISPOSITION AUTHORITY MUST CONSULT WITH THEIR ASSIGNED STAFF JUDGE ADVOCATE BEFORE ELECTING ANY INITIAL DISPOSITION. IF, AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, THE COMMANDER WITH INITIAL DISPOSITION AUTHORITY DECIDES THAT THE APPROPRIATE COURSE OF ACTION IS TO RETURN THE CASE TO A SUBORDINATE COMMANDER IN THE BEST INTEREST OF GOOD ORDER AND DISCIPLINE, THAT DECISION MUST BE ACCOMPANIED BY WRITTEN ADVICE FROM THEIR ASSIGNED STAFF JUDGE ADVOCATE. IF THE CASE IS RETURNED TO A SUBORDINATE FOR APPROPRIATE ACTION, THE SUBORDINATE COMMANDER THEN HAS THE FULL RANGE OF DISCIPLINARY AND ADMINISTRATIVE ACTIONS WITHIN THEIR JURISDICTION AT THEIR DISPOSAL. 9. THE EFFECTIVE DATE OF THE COMMANDANTS WITHHOLDING DECISION IS 28 JUNE 2012. ALL CASES NOT IN THE POSSESSION OF OR PREVIOUSLY REVIEWED BY THE SUBORDINATE DISPOSITION AUTHORITY AS OF 28 JUNE 2012 ARE THEREAFTER SUBJECT TO THIS ACTION. 10. THIS ORDER WILL BE INCORPORATED IN THE NEXT CHANGE TO REF (G). 11. EVERY COMMANDER AND OFFICER IN CHARGE AT EVERY LEVEL SHOULD WORK TOWARD ESTABLISHING AN ENVIRONMENT FREE OF SEXUAL ASSAULT, TO PROVIDE SUPPORT AND ASSISTANCE TO VICTIMS, AND TO TREAT VICTIMS WITH DIGNITY, ALLEGED OFFENDERS WITH DUE PROCESS AND MAINTAIN GOOD ORDER AND DISCIPLINE WITHIN THEIR UNITS. 12. FURTHER EXPLANATION AND/OR TRAINING ON THIS DIRECTIVE IS AVAILABLE TO ALL COMMANDS EXERCISING MAST AUTHORITY AND/OR COURT-MARTIAL CONVENING AUTHORITY. CONTACT YOUR SERVICING LEGAL OFFICE. 13. POC: CAPT S. K. SELMAN, COMDT (CG-0946), (202) 372-8805 14. MR. C. M. LEDERER, ACTING JUDGE ADVOCATE GENERAL, US COAST GUARD, SENDS. 15. INTERNET RELEASE AUTHORIZED.