BILL ANALYSIS Ó
AB 2273
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Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON VETERANS AFFAIRS
Jacqui Irwin, Chair
AB 2273
(Irwin) - As Amended March 14, 2016
SUBJECT: Military law: suicide
SUMMARY: Prohibits a member of the active militia, including
the California National Guard, from being prosecuted for a
military crime based on an attempt to kill himself or herself.
The bill also requires the Adjutant General to ensure that any
member of the active militia that attempts to kill himself or
herself is referred, as soon as practically possible, to the
department's Behavioral Health Liaison Program, or its
successor, to receive assistance, counseling, or referral to
other appropriate available services.
EXISTING LAW: Military and Veterans Code (MVC) section 451
states:
(a) The constitution and jurisdiction of general
courts-martial, special courts-martial, summary
courts-martial, and courts of inquiry, the form and manner in
which the proceedings are conducted and recorded, the forms of
oaths and affirmations taken in the administration of military
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law by such courts, the limits of punishment, and the
proceedings in the revision thereof, shall be governed by the
terms of the laws and regulations governing the United States
Army, Air Force, or Navy, and the law and procedure of similar
courts of the United States Army, Air Force, or Navy, except
as otherwise provided in this chapter.
(b) The provisions of the Uniform Code of Military Justice
(UCMJ), and the rules and regulations published thereunder,
shall govern and be applicable to the active militia,
including the California National Guard, except as otherwise
provided in this code, the California Manual for
Courts-Martial, or other regulations as adopted by the
Governor or Adjutant General.
Articles 115 and 134 of the UCMJ penalize attempted suicide and
self-injury.
Article 134 of the federal UCMJ, called "the general article,"
criminalizes "all disorders and neglects to the prejudice of
good order and discipline in the Armed Forces" and "all conduct
of a nature to bring discredit upon the Armed Forces." The
Manual for Courts-Martial lists "self-injury without intent to
avoid service" as an example of conduct punishable under this
code
FISCAL EFFECT: Unknown at this time.
COMMENTS:
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According to the author:
The Department of Defense (DoD) reports that 434 service
members (active and reserve components) died by suicide in
2014. Through the third quarter of 2015 the DoD reported that
363 servicemembers died by suicide. The high number of
suicides among troops and veterans demands a proactive
approach to support troops and veterans in crisis. When
service members seek care, they should not fear retaliation
from their unit. No troop or veteran can be allowed to fall
through the cracks because they fear punishment.
According to the Iraq Afghanistan Veterans of America (IAVA),
member survey, an encouraging 77 percent of respondents sought
care when it was suggested that they do so by a friend or
family member. Still, the survey showed that many
servicemembers did not seek care because of concern that a
mental health diagnosis might affect their career. Those
concerns are not unfounded; under the Uniform Code of Military
Justice, servicemembers may be criminally prosecuted in
military courts martial for attempting suicide.
According to the IAVA, communities in and out of the military
are vital to combating suicide among service members and
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veterans to ensure they are supported in their efforts to seek
care and transition home. The stigma of seeking mental health
care is a national problem, not just among military members
and veterans, and keeps many people from trying to get help.
AB 2273 would decriminalize suicide attempts, removing the
disincentive for those who need help, to seek it, and for
friends and colleagues to encourage seeking help or report
accordingly.
National Guard servicemembers are covered by different sets of
military law at different times, depending on their duty status.
At times they are covered by the federal UCMJ, but when in a
purely Title 32, or "state" status, they are subject to the
federal UCMJ, as incorporated by Military and Veterans Code
section 451.
The existing MVC 451 contains an explicit provision
contemplating that as needed or desired, California may diverge
from the federal UCMJ, "The provisions of the ? UCMJ, ?shall
govern and be applicable to the ? California National Guard
except as otherwise provided in this code, ?(MVC section 451).
This bill would introduce a difference between the way suicide
attempts are handled under the federal UCMJ and the UCMJ as
applied to National Guard members when not covered by the
federal UCMJ.
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According to, "Fallen Soldier: Military (In)justice and the
Criminalization of Attempted Suicide After U.S. v. Caldwell"
(Berkeley Journal of Criminal Law, Spring 2014):
While military leadership has moved aggressively and with
informed compassion to combat its unprecedented suicide rate,
the military justice system has lagged tragically behind. In
July 2012, the same month the Defense Department declared a
"suicide epidemic" was afflicting the U.S. Armed Forces, the
military's highest court granted review of the following
question in United States v. Caldwell: whether a bona fide
suicide attempt remained criminally punishable under military
law. Two years earlier, a military trial judge had sentenced
Marine Corps Private Lazzaric Caldwell to prison on a charge
of "wrongful selfinjury" after he gashed his wrists in his
barracks. "You were thinking selfishly," the judge told him,
"because you were depressed." ?
In a vague and narrow 3-2 decision ?, the Court of Appeals for
the Armed Forces invalidated Private Caldwell's guilty plea
when it found insufficient evidence that his suicidal conduct
had any "direct and palpable effect on good order and
discipline." However, the court still failed to decriminalize
attempted suicide outright and declined to "determine whether,
as a general matter, a bona fide suicide attempt alone may be
service discrediting [and therefore criminally punishable], or
is more properly considered a noncriminal matter requiring
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treatment not prosecution." In doing so, the majority dodged
the granted issue entirely and left roughly 3,500 active duty
suicide survivors each year subject to prosecution and jail
time for "wrongful self-injury," no matter their intent."
Though this bill will not reach the federal UCMJ, it does make a
policy statement: California, where it is able, has made the
policy decision that our National Guard members, insofar as they
care in the control of the state, shall not be prosecuted for
attempting suicide but shall instead be given the mental health
support that they need.
REGISTERED SUPPORT / OPPOSITION:
Support
National Association of Social Workers, California Chapter
Opposition
None on File
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Analysis Prepared by:John Spangler / V.A. / (916) 319-3550