Skip to content
The FormationAccountability Project

The Formation Accountability Project is an independent, nonpartisan legislative research and advocacy initiative. Its proposals are discussion drafts and do not represent enacted law, official Department of Defense policy, congressional sponsorship, or legal advice.

Current lawProposed amendmentResearch questionImplementation consideration
Reform brief — current law, proposed changes, and review questions

The problem

  • Expanding independent prosecutorial authority to additional designated offenses.

Existing law

  • 10 U.S.C. § 824a establishes special trial counsel with exclusive authority over 'covered offenses', including many sexual offenses, domestic violence, murder, kidnapping, and retaliation.
  • For offenses outside OSTC coverage, commanders generally retain disposition authority.

Proposed reform

  • Add all Article 93 offenses to OSTC coverage.
  • Add designated aggravated Article 107 offenses.
  • Add the proposed UCMJ trafficking offense.
  • Preserve and strengthen existing coverage of Article 132 retaliation.
  • Remove commander-controlled criminal disposition authority over designated offenses, including after OSTC declines prosecution.
  • Protection against unlawful interference with prosecutorial decisions.

How it would work

Receive information → safety and screening → independent jurisdiction and threshold assessment → investigation or noncriminal review where warranted → authorized disposition → oversight.

Interactive accountability process

Why it matters

  • Conflicts of interest or perceived command influence may undermine confidence in impartial proceedings.
  • Congress has already moved many serious offenses to independent prosecutors; this proposal extends that model.

Legal safeguards

  • Removing disposition authority after declination raises questions about administrative and non-judicial alternatives that require careful drafting.
  • Resourcing and staffing implications for OSTC must be assessed.

Implementation considerations

  • Evaluate staffing, forensic capacity, training, fiscal costs, reporting burdens, and unintended operational effects before enactment.
  • These are research and implementation questions, not established findings or guaranteed benefits.

Independent prosecution · Existing law and proposed expansion

Independent investigation. Independent prosecutorial judgment.

Investigators establish facts. Legally authorized prosecutors make charging decisions.

Existing authority and proposed coverage

OSTC exercises prosecutorial authority over offenses assigned by law. Article 132 retaliation is already covered. The proposed Act would expand coverage to additional designated offenses, including Article 93, aggravated Article 107, and a proposed UCMJ trafficking offense.

  • Add all Article 93 offenses to OSTC coverage.
  • Add designated aggravated Article 107 offenses.
  • Add the proposed UCMJ trafficking offense.
  • Preserve and strengthen existing coverage of Article 132 retaliation.
  • Remove commander-controlled criminal disposition authority over designated offenses, including after OSTC declines prosecution.
  • Protection against unlawful interference with prosecutorial decisions.
Expanded coverage is a discussion draft, not enacted law. MCIO referral does not require OSTC to prosecute; charging depends on evidence, jurisdiction, and law. The presumption of innocence applies.
Full OSTC reform summaryMandatory MCIO referral frameworkLegislative documents