BILL ANALYSIS Ó SENATE COMMITTEE ON VETERANS AFFAIRS Senator Jim Nielsen, Chair 2015 - 2016 Regular Bill No: AB 2273 Hearing Date: 6/14/16 ----------------------------------------------------------------- |Author: |Irwin | |-----------+-----------------------------------------------------| |Version: |3/14/16 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Wade Teasdale | | | | ----------------------------------------------------------------- Subject: Military law: suicide DESCRIPTION Summary: Prohibits a member of the active militia, including the California National Guard (CNG), from being prosecuted for a military crime, under state authority, based on an attempt to kill him or herself. Existing law: Provides that the California Military Department (CMD or Department) can prosecute member Soldiers and Airmen under state authority. This bill: 1)Prohibits a member of the active militia, including the CNG, from being prosecuted for a military crime based on an attempt to kill him or herself. 2)Requires the Adjutant General (TAG) 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 CMD's Behavioral Health Liaison Program, or its successor, to receive assistance, counseling, or referral to other appropriate available services. AB 2273 (Irwin) Page 2 of ? BACKGROUND California State Militia The MVC provides for a California state militia, which contains both an active militia and an unorganized militia, as follows: 1)The active militia consists of the CNG, State Military Reserve (SMR) and Naval Militia. (MVC §120) 2)The unorganized militia: a) Consists of all persons liable to serve in the militia, but not members of the CNG, SMR, or Naval Militia. (MVC §121) b) All able-bodied males between 18 and 45 years old who are not members of the CMD constitute the unorganized militia of the state. (MVC §122) 3)The Governor may call the unorganized militia for active duty in case of war, rebellion, insurrection, invasion, tumult, riot, breach of the peace, public calamity or catastrophe, or other emergency or imminent danger, or may be called forth for service under the Constitution and laws of the United States. (MVC §128) California Military Department The CMD is a state department located within the executive branch. According to MVC Code §51, the Department comprises the following: 1) The active militia, which consists of the CNG, State Military Reserve and Naval Militia; and 2) Two additional elements: (a) The Office of the Adjutant General and (b) the California Cadet Corps. The Department's eclectic personnel mix includes both paid employees and volunteers, uniformed military and civilian workers, both full-time and part-time, and both federally funded and state-funded. All uniformed employees are subject to military law, either federal or state, depending upon their AB 2273 (Irwin) Page 3 of ? category and current status. Military law Federal courts-martial are conducted under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM). Congress enacted the UCMJ, the code of military criminal laws applicable to all U.S. military members. The MCM contains the Rules for Courts-Martial (RCM) and Military Rules of Evidence (MRE). Under this legal framework, military members are subject to rules, orders, proceedings, and consequences different from the rights and obligations of their civilian counterparts. The UCMJ authorizes three types of courts-martial: (1) summary court-martial; (2) special court-martial; and (3) general court-martial. Depending on the severity of the alleged offense, the accused's commanding officer enjoys great discretion with respect to the type of court-martial to convene. Generally, each of the courts-martial provides fundamental constitutional and procedural rights to the accused, including, but not limited to, the right to a personal representative or counsel, the opportunity to confront evidence and witnesses, and the right to have a decision reviewed by a lawyer or a court of appeals. Military members convicted by federal courts-martial may appeal for review by the U.S. Court of Appeals for the Armed Services. This independent tribunal was established within the UCMJ by act of Congress -- not by a Presidential executive order. The same constitutional principles are applicable to the Courts-Martial Appellate Panel (CMAP) - the CMD's appellate tribunal. California law expressly adopts federal military statutes, the UCMJ, MCM, RCM, and MRE as far as they may be applicable to state military matters. MVC §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 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 AB 2273 (Irwin) Page 4 of ? 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 CNG, except as otherwise provided in this code, the California Manual for Courts-Martial, or other regulations as adopted by the Governor or Adjutant General. Suicide 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. Behavioral Health Liaison Program In a 2013 memorandum to the Little Hoover Commission, the CMD described its Behavioral Health Liaison Program (BHL) as follows: "Proposition 63 funding has dramatically improved access to mental health care for Soldiers and Airmen of the California National Guard. It has enabled the California National Guard to implement a behavioral health program that is recognized as the best in the nation. Commonly referred to as "The California Model," our approach to delivering behavioral health services is being replicated by state National Guards across the country. "The Military Department's Behavioral Health Outreach Liaison (BHL) program was established in 2009 with the assistance of the leadership of the California Legislature. Using Proposition 63 funds, this program provides two licensed therapists who are assigned to Northern and Southern California regions, and one agency coordinator." In February 2016 memorandum to the Joint Legislative Budget Committee, the CMD reported that the BHL program: AB 2273 (Irwin) Page 5 of ? " . . . (S)upports the behavioral health needs of over 21,000 CNG and (SMR members. The CMD BHL program had a FY 2015-16 baseline funding of $1,590,000 that funds 8.2 positions through Proposition 63." The 2016 memorandum reported that - in calendar year 2015 - the BHL program had 9,198 contacts with supported service members and made 1,567 referrals to county mental health departments and other agencies. The "five top issues" for which CNG members sought assistance were: 1)General mental health support 2)Suicidal ideation 3)Substance abuse 4)Employment 5)Family/relationship issues COMMENT Author's Comments : "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 service members 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 service members 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, service members may be criminally prosecuted in military courts martial for attempting suicide. "According to the IAVA, communities in and out of the military AB 2273 (Irwin) Page 6 of ? are vital to combating suicide among service members and 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." POSITIONS Sponsor: Author. Support: American G.I. Forum of California American Legion - Department of California AMVETS - Department of California California Association of County Veterans Service Officers Military Officers Association of America - California Council of Chapters National Association of Social Workers - California Chapter Veterans of Foreign Wars - Department of California Vietnam Veterans of American - California State Council One (1) individual - Ari Freilich, Esq., veteran advocate Oppose: None on file. -- END --