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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