BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON VETERANS AFFAIRS
                             Senator Jim Nielsen, Chair
                                2015 - 2016  Regular 

          Bill No:             AB 2273        Hearing Date:    6/14/16
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          |Author:    |Irwin                                                |
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          |Version:   |3/14/16                                              |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Wade Teasdale                                        |
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                          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.
                                           







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                                     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  








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          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  








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               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:








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          " . . . (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  








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          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.


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