The Office of the Special Trial Counsel (OSTC) is a new office within the United States Army that is responsible for making referral decisions in certain court-martial cases. The establishment of the OSTC is viewed by some as an important step towards ensuring fairness and impartiality in the Army’s legal system.

Types of Cases the OSTC Makes Referral Decisions On:  The OSTC is responsible for making referral decisions in two types of court-martial cases: rape and related offenses and certain other serious offenses. The OSTC will have exclusive authority to prosecute the following offenses: murder, manslaughter, rape and sexual assault, rape of a child, sexual assault of a child, other sexual misconduct, kidnapping, domestic violence, stalking, retaliation, child pornography and wrongful broadcast.  In these cases, the OSTC will review the evidence and make a determination about whether to refer the case to a general court-martial, a special court-martial, or dismiss the charges altogether. The OSTC makes these decisions based on the evidence presented and the requirements of the Uniform Code of Military Justice.

Cases Decided by the Local Commanding General: While the OSTC is responsible for making referral decisions in certain court-martial cases, there are still many cases that are decided by the local commanding general. These cases include minor offenses, such as being absent without leave, and less serious offenses, such as failure to obey an order or disorderly conduct. The local commanding general may also make referral decisions in cases that do not fall within the jurisdiction of the OSTC. For example, if a service member is accused of a drug offense, the local commanding general may be responsible for making the referral decision.

Additionally, alongside the establishment of the OSTC, significant changes are being made to the military justice system as a result of the National Defense Authorization Act of 2023. These modifications build upon the military justice reforms enacted in the FY 2022 NDAA and include expanding the list of covered offenses under the authority of the OSTC.

Furthermore, amendments to the Manual for Courts-Martial will be made to ensure that residual prosecutorial and judicial responsibilities related to covered offenses are appropriately transferred to the relevant entity. The Department of Defense (DOD) will be required to provide comprehensive reports on the implementation of the reforms from the previous year.

In addition, Article 66 of the Uniform Code of Military Justice (UCMJ) will be amended to allow for judicial review of any conviction by court-martial, regardless of the imposed sentence. Article 69 of the UCMJ will also be amended to provide clarity on the scope of review for general and special court-martial cases reviewed by a judge advocate general.

Lastly, Article 25 of the UCMJ will be amended to mandate randomized selection of personnel for service as panel members on courts-martial.