Military Moves Toward Sentencing Guidelines to Mirror the Federal System

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Updated October 31, 2026

For most of the military justice system's history, when a panel of officers and enlisted members decided guilt, the same panel decided the sentence. The members heard the sentencing evidence, deliberated, and announced one sentence covering all of the offenses. No guideline range applied. Before trial, an Article 32 investigation looked into the charges and gave the defense a view of the government's evidence.

Through a series of National Defense Authorization Acts (NDAAs) from 2013 to 2025, Congress:

• moved sentencing from panels to military judges in non-capital cases (for offenses committed after December 27, 2023);
• created sentencing parameters, a set of confinement ranges the judge must follow unless specific facts support a different sentence;
• replaced "pretrial agreements," whose sentence cap was kept from the judge, with plea agreements that state a sentence range the judge applies;
• changed the Article 32 investigation into a preliminary hearing on probable cause; and
• gave special trial counsel, military prosecutors outside the chain of command, the decision whether to prosecute the most serious offenses.

This article describes each change and its federal counterpart, lists the changes by NDAA in a timeline, sets out the differences that remain, and summarizes pending bills and reports. It is also the background for a series of data posts comparing federal sentences with court-martial sentences, collected at Federal Prosecution Analysis. A general overview of court-martial stages is at How a Court-Martial Works: Investigation to Appeal, and definitions of the terms used here are in the Military Justice Glossary.

How Federal Sentencing Works

The federal system was set up by the Sentencing Reform Act of 1984.

• The judge sentences. In federal court, the jury decides guilt and the judge decides the sentence in every non-capital case.
• A guidelines range comes first. The judge calculates a range under the U.S. Sentencing Guidelines from an offense level (1 to 43) and a criminal history category (I to VI). The guidelines took effect on November 1, 1987. Federal parole was abolished for crimes committed on or after that date.
• The range is advisory. Since United States v. Booker (2005), the guidelines range is advisory. The judge must calculate it and weigh it with the factors in 18 U.S.C. § 3553(a), and may impose a sentence outside it.
• Both sides can appeal a sentence. A government appeal needs approval from the Attorney General, the Solicitor General, or a designated deputy solicitor general (18 U.S.C. § 3742(b)). Appellate courts review for reasonableness and may presume that a sentence within the guidelines range is reasonable (Rita v. United States, 2007).
• Some plea agreements bind the judge. Under Federal Rule of Criminal Procedure 11(c)(1)(C), the parties can agree to a specific sentence or range. If the judge accepts the agreement, the judge is bound by it.
• Prosecutors decide charges. Assistant U.S. Attorneys decide whether to prosecute, under the Justice Department's Principles of Federal Prosecution. A grand jury indicts for felonies. When there is no indictment, a magistrate judge holds a preliminary hearing on probable cause and must dismiss the complaint if probable cause is not shown (Rule 5.1).

Federal courts see a narrower mix of cases. In fiscal year 2024, immigration and drug trafficking cases were 59% of everyone sentenced in federal court (36,664 of 61,678), according to U.S. Sentencing Commission data. Many offenses courts-martial try, including most sexual assaults between adults and most assaults, are usually prosecuted by states when the accused is a civilian.

Sentencing: From Panels to Judges

Before 2019. The accused chose trial by a military judge alone or by members. The same decision-maker decided guilt and the sentence. Members announced one sentence for all offenses, called a unitary sentence. No guideline or range applied. A 2017 description of that system is at Sentencing in Military Court-Martial.

The 2015 recommendation. The Military Justice Review Group, a Defense Department review chaired by former Chief Judge Andrew Effron of the Court of Appeals for the Armed Forces, issued its report in December 2015. It recommended military judge sentencing in all non-capital cases and sentencing parameters.

The Military Justice Act of 2016 (effective January 1, 2019). Congress adopted part of that recommendation in the FY2017 NDAA. The military judge became the default sentencing authority, and an accused tried by members could elect sentencing by members. When the judge sentences for more than one offense, the judge sets confinement (and any fine) for each offense and states whether the terms run concurrently or consecutively. Federal judges also sentence count by count. The Act set fixed panel sizes: 8 members for a non-capital general court-martial, 4 for a special court-martial, and 12 in capital cases. It also created a special court-martial tried by a military judge alone. The panel-size change is described in New Standard Sized Panels in the Military Justice Act of 2016, and the Court of Appeals for the Armed Forces upheld the judge-alone special court-martial in a case summarized at CAAF Upholds Military Judge-Alone Special Court-Martial in U.S. v. Wheeler.

FY2020 NDAA. Section 537 directed the Secretary of Defense to develop non-binding sentencing guidelines. The FY2022 NDAA repealed that section and replaced it with sentencing parameters.

FY2022 NDAA (offenses after December 27, 2023). Section 539E removed the accused's election. In every non-capital general and special court-martial, the military judge sentences the accused, including when members decided guilt. This applies only where every guilty finding is for an offense committed after December 27, 2023. A case that includes an earlier offense stays under the prior rules, so members still sentence in some cases tried today.

In a capital case, the members decide whether the sentence will be death or life without parole, or return the case to the military judge for a lesser sentence. In federal capital cases, a jury decides whether to impose death.

Because members no longer sentence in non-capital cases, the choice between a judge and members now affects only who decides guilt. That choice is described at Forum Selection.

How often federal juries and judges acquit, compared with court-martial members and military judges, is in Are Courts-Martial More Likely to End in Acquittal Than Federal Trials? and Jury or Judge: Federal Bench and Jury Trials vs. Military Judge Alone and Members.

Plea Agreements: The Judge Now Sees the Range

Pretrial agreements before 2019. A pretrial agreement had two parts. In a judge-alone case, the judge reviewed the terms but did not see the "quantum," the part that capped the sentence, until after announcing the sentence. The Court of Military Appeals required this in 1976 (United States v. Green). The convening authority then approved no more than the lower of the judge's sentence and the cap.

Plea agreements (Article 53a, effective January 1, 2019). The Military Justice Act of 2016 replaced pretrial agreements with plea agreements. A plea agreement can set a maximum sentence, a minimum sentence, or both. The whole agreement, including the sentence limits, is disclosed to the military judge. If the judge accepts the agreement, the judge sentences within its limits.

After the FY2022 NDAA. The judge must accept a plea agreement unless the proposed sentence is "plainly unreasonable." For an offense with a sentencing parameter, the judge may reject an agreement proposing a sentence outside the parameter only on that ground. In covered-offense cases, the special trial counsel, not the commander, enters the plea agreement.

A federal Rule 11(c)(1)(C) agreement works in a similar way: the parties agree on a sentence or range, the judge sees it, and the judge is bound once the judge accepts it.

Plea agreements and guilty pleas in the two systems are compared in Plea Agreements: Federal Court vs. Courts-Martial, 2016–2025 and Guilty Pleas in Federal Court vs. Courts-Martial, Year by Year.

Sentencing Parameters

The FY2022 NDAA required the President to set sentencing parameters within two years, based on recommendations from a new Military Sentencing Parameters and Criteria Board. The Board's voting members come from the services' chief trial judges. The statute requires at least 5 and no more than 12 offense categories, each with upper and lower confinement limits, and directs the Board to consider the federal sentencing guidelines and military-specific factors.

The President set the parameters in Executive Order 14103 (July 28, 2023), effective December 27, 2023. They appear in Appendix 12B (confinement ranges) and Appendix 12C (offense categories) of the Manual for Courts-Martial.

If an offense's maximum confinement is lower than its category's upper limit, the offense maximum controls. At a special court-martial, the 12-month jurisdictional limit is the parameter for Category 3 and higher offenses.

Under the statute and the rules:

• The military judge must sentence within the parameter unless the judge finds specific facts that warrant a sentence outside it.
• A sentence outside the parameter requires a written statement of the factual basis in the record.
• Offenses the Board found unsuitable for parameters have "sentencing criteria," which the judge must consider.
• Parameters cover confinement. They do not cover a punitive discharge, reduction in rank, or forfeitures.
• Parameters do not apply to the decision whether to impose death.
• With the approval of the Judge Advocate General, the government can appeal a sentence that violates the law, results from an incorrect application of a parameter, or is plainly unreasonable. The Military Justice Act of 2016 first allowed government sentence appeals, and the FY2022 NDAA added the parameter ground. Federal prosecutors can appeal sentences under 18 U.S.C. § 3742(b).

The parameters differ from the federal guidelines in two ways. The federal guidelines are advisory, while a military judge needs specific facts and a written statement to sentence outside a parameter. The federal range is set by both the offense and criminal history, while the military categories are assigned by offense alone, and the ranges are wide.

How often federal judges sentence outside the guideline range is in How Often Federal Judges Sentence Outside the Guideline Range, and how many federal sentences are set by a mandatory minimum is in Mandatory Minimums: How Many Federal Sentences Are Set by Congress. Court-martial sentences since the change are in The 2023 Military Sentencing Reform: What the Data Shows So Far.

Who Decides to Prosecute: Special Trial Counsel

In federal court, prosecutors decide whether to charge. In the military, commanders made that decision on the advice of a staff judge advocate. The FY2022 NDAA created the Offices of Special Trial Counsel, effective December 27, 2023.

Special trial counsel are judge advocates outside the accused's chain of command. They have exclusive authority over "covered offenses," including murder, manslaughter, rape and sexual assault (Articles 120, 120b, and 120c), kidnapping, domestic violence (Article 128b), stalking, retaliation, wrongful broadcast of intimate images, and images of child exploitation (charged under Article 134). Later NDAAs added more, including sexual harassment for offenses after January 1, 2025. A special trial counsel's decision to refer a covered offense is binding on the convening authority. If the special trial counsel declines to prefer or refer charges, the commander or convening authority may handle the offense with any other UCMJ authority, but may not refer a covered offense to a special or general court-martial.

The Military Justice Act of 2016 also added Article 33, which requires non-binding Defense Department guidance on disposition decisions that takes into account the Attorney General's guidance to federal prosecutors.

Commanders still decide all other offenses and the offenses special trial counsel defer, and the convening authority still convenes the court-martial and selects the members in special trial counsel cases. Background on these steps is at Referral of Charges and Who Has the Authority to Convene a Court-Martial. The text and elements of two of the most common covered offenses are at Article 120 UCMJ and Article 120b UCMJ.

Covered Offense or Same Conduct: Kruse and Galvin

Article 24a gives special trial counsel exclusive authority over covered offenses, including the decision whether reported conduct is a covered offense at all. When a special trial counsel defers, the commander may not refer "a covered offense" to a special or general court-martial. Two 2026 cases tested whether the commander can refer the same conduct under a different, non-covered article.

United States v. Kruse (Marine Corps). In September 2024, a Marine corporal's wife accused him of strangling her. The Office of Special Trial Counsel determined the allegation was a covered offense, domestic violence under Article 128b, and deferred it to the command under Article 24a(c)(5). The command then charged the same conduct as assault and aggravated assault under Article 128, which is not a covered offense, and referred it to a judge-alone special court-martial. The military judge ruled against the government. On a government appeal, the Navy-Marine Corps Court of Criminal Appeals reversed in a published opinion, holding that the convening authority may refer non-covered offenses after a deferral. The Court of Appeals for the Armed Forces affirmed on September 1, 2026, in a unanimous opinion by Judge Johnson. It held that special trial counsel have exclusive authority over covered offenses, including the determination whether conduct is a covered offense, and that after a deferral the convening authority may take the same underlying conduct to court-martial as long as it is not charged as a covered offense. The decision and its effect on deferred domestic violence cases are summarized in This Just In: Military Appellate Courts, Week of 9 September 2026 and on the Article 128 UCMJ page.

United States v. Galvin (Air Force). An Air Force staff sergeant was accused of conduct amounting to sexual harassment at or near Okinawa, Japan. Sexual harassment under Article 134 is a covered offense. The Office of Special Trial Counsel deferred twice, and the command charged the conduct as dereliction of duty under Article 92. The military judge dismissed that specification without prejudice. On a government appeal, the Air Force Court of Criminal Appeals held in an unpublished decision (Misc. Dkt. No. 2026-01, June 5, 2026) that the convening authority had no authority to refer the specification after the deferral. The Judge Advocate General of the Air Force certified the case to the Court of Appeals for the Armed Forces. On October 19, 2026, citing Kruse, that court ruled by summary disposition that the Air Force court erred, set aside its decision, and returned the case for further review of the government appeal.

Galvin also raises a second question that Kruse did not: whether the government can charge sexual harassment as dereliction of duty under Article 92 after Congress made sexual harassment its own Article 134 offense in January 2022. That question, called preemption, was not decided in the October 19 order. Both cases are discussed in the episode S4 E1: Galvin and OSTC Jurisdiction.

After Kruse, a deferral by special trial counsel does not end the possibility of a court-martial. The command can still refer the same conduct under a non-covered article, such as Article 128 instead of Article 128b, or handle it through nonjudicial punishment or administrative action. This also affects the court-martial data: a case charged under Article 128 or Article 92 may involve conduct that special trial counsel first reviewed as a covered offense, and the records do not show deferrals.

Article 32: From Investigation to Preliminary Hearing

Before December 26, 2014. Article 32 required a "thorough and impartial investigation" before charges could be referred to a general court-martial. The investigating officer inquired into the truth of the charges, and the defense could use the proceeding to learn the government's evidence. Complaining witnesses could be called to testify.

FY2014 NDAA, Section 1702 (hearings on or after December 26, 2014). Congress changed Article 32 to a "preliminary hearing" limited to four purposes:

1. whether there is probable cause to believe an offense was committed and the accused committed it;
2. whether the court-martial would have jurisdiction;
3. the form of the charges; and
4. a recommendation on disposition of the case.

The hearing officer is a judge advocate whenever practicable. A victim cannot be compelled to testify. The FY2015 NDAA allowed the accused to waive the hearing. Executive Order 13696 (June 17, 2015) rewrote Rule for Courts-Martial 405 to match. The federal Rule 5.1 preliminary hearing also tests only probable cause.

Military Justice Act of 2016. The hearing officer must make a disposition recommendation and analyze additional information the parties submit. New Article 30a allows military judges and military magistrates to act before referral, for example on subpoenas and warrants, a role similar to a federal magistrate judge's.

FY2022 NDAA, Section 536. When a special trial counsel controls the charges, the special trial counsel requests the hearing officer, and the report goes to the special trial counsel.

The hearing officer's conclusions remain recommendations. A finding of no probable cause does not end the case. Before referral to a general court-martial, the staff judge advocate, or for covered offenses the special trial counsel, must find probable cause. The current hearing is described at Article 32(b) Preliminary Hearings.

Appeals

• Entry of judgment. Since 2019, the military judge enters the judgment of the court-martial (Article 60c). The FY2014 NDAA began limiting the convening authority's power to change findings and sentences.
• Factual sufficiency. The Courts of Criminal Appeals once reweighed the evidence in every case they reviewed. For offenses on or after January 1, 2021, the FY2021 NDAA allows that review only when the accused requests it and makes a specific showing of a deficiency in proof. Federal appeals courts review legal sufficiency only. The Court of Appeals for the Armed Forces interpreted the new standard in a case summarized at U.S. v. Harvey: CAAF Defines the New Article 66 Factual Sufficiency Standard.
• Supreme Court review. Under the FY2024 NDAA, a service member can petition the U.S. Supreme Court even when the Court of Appeals for the Armed Forces denies review. Federal defendants could already petition in every case. The 2016 appellate changes are described in Military Appeals and the Military Justice Act of 2016, and decisions of the Court of Appeals for the Armed Forces are collected in the CAAF Opinion Library.

Timeline: Military Justice Changes by NDAA (2013–2026)

Most procedural changes apply by the date of the hearing or referral. Most sentencing and punishment changes apply by the date of the offense. As a result, cases under the old rules and the new rules are tried in the same years after each change.

What Remains Distinct in the Military

These differences between courts-martial and federal criminal cases remain.

• No grand jury, and no binding probable-cause finding. The Fifth Amendment's grand jury requirement does not apply to "cases arising in the land or naval forces." An Article 32 hearing officer's finding of no probable cause is a recommendation. A federal magistrate judge who finds no probable cause must dismiss the complaint.
• Commanders still decide cases without a covered offense and cases special trial counsel defer. Outside covered offenses, commanders decide whether to prosecute drug offenses, most assaults, larceny, absence without leave, and military offenses such as disobeying orders. When a special trial counsel declines to prefer or refer charges, the case goes back to the commander or convening authority, who may use any other authority under the UCMJ but may not refer a covered offense to a special or general court-martial (Article 24a(c)(5)). In the court-martial results on this site, 1,310 of the 2,897 courts-martial tried from January 2024 through October 2026 (45%) included at least one covered-offense charge. The share was 53% in the Army (669 of 1,252), 45% in the Air Force (268 of 598), 36% in the Navy (166 of 457), 34% in the Marine Corps (188 of 556), and 19 of 34 in the Coast Guard. A covered-offense charge does not by itself show that special trial counsel handled the case. Special trial counsel have authority over covered offenses committed after December 27, 2023, and over some earlier offenses at their discretion, and the records list trial dates, not offense dates. Cases involving images of child exploitation were counted only when the record's description named that offense, and 41 records that list no article were counted as not covered. Courts-martial are also only part of military discipline: nonjudicial punishment under Article 15, which has no federal counterpart, and administrative actions are decided by commanders and are not in these numbers. The forms of military discipline are compared at Article 15 vs. Summary vs. Special vs. General Court-Martial Comparison.
• The convening authority selects the members. Members are chosen under Article 25 for age, education, training, experience, length of service, and judicial temperament, with random selection "to the maximum extent practicable" since December 23, 2024. An enlisted accused can request enlisted members. Federal jurors are drawn at random from the community.
• Verdicts do not have to be unanimous. In a non-capital case, three-fourths of the members can convict. Federal juries of 12 must be unanimous. The Court of Appeals for the Armed Forces held in United States v. Anderson (2023) that service members have no constitutional right to a unanimous verdict. Background is at PSA: Non-Unanimous Verdicts in the Military.
• Punishments with no federal counterpart. A court-martial can impose a bad-conduct discharge, dishonorable discharge, or dismissal, reduction in rank, and forfeiture of pay. The parameters do not cover these punishments. A dishonorable discharge or dismissal is mandatory for rape and sexual assault. The types of discharge are listed at Types of Military Discharge.
• No supervised release. Most federal prison terms are followed by a term of supervised release set by the judge. A court-martial cannot impose supervision after release. Military parole and mandatory supervised release are decided later by a board. Good-conduct credit rules also differ. Federal supervised release terms are covered in Supervised Release: The Federal Sentence That Courts-Martial Cannot Impose.
• Sentencing follows findings, and the parties present the evidence. Federal sentencing usually takes place months after conviction and relies on a presentence report prepared by a probation officer. A court-martial sentencing hearing usually follows the findings without a break, and the parties decide what evidence to present. The accused may make an unsworn statement, which is not subject to cross-examination; see Unsworn Statements. The Military Justice Review Panel's 2024 review compared the two systems and found the remaining differences in military sentencing appropriate, including the adversarial presentencing process and sentencing without a separate later hearing.
• Parameters are binding in form; federal guidelines are advisory. A military judge needs specific facts and a written statement to sentence outside a parameter. The military ranges are wide and do not account for criminal history.
• Judges and sentence review. Federal district judges have life tenure. Military judges are officers assigned to judicial duty. The Courts of Criminal Appeals can reduce a sentence they find inappropriately severe. Federal appeals courts can vacate an unreasonable sentence but do not set a new one. The Court of Appeals for the Armed Forces addressed a comparison between military and civilian sentences in a case summarized at CAAF Examines Sentencing Disparity with Civilian Coactors in U.S. v. Swisher.
• Old and new rules overlap. The sentencing changes apply only where every guilty finding is for an offense after December 27, 2023. Some courts-martial tried in 2024, 2025, and 2026 used member sentencing and had no parameters.

Two provisions in the House-passed FY2027 NDAA would add differences. Section 549 would authorize the death penalty for rape of a child under Article 120b. The Supreme Court barred that punishment in civilian prosecutions in Kennedy v. Louisiana (2008). Section 549B would make people confined for certain sexual offenses ineligible for good-conduct time. Federal prisoners serving more than one year, other than life, can earn good-conduct credit for any offense.

Pending Legislation and Reports

As of October 31, 2026, the FY2027 NDAA has not been enacted. The House passed H.R. 8800 on July 22, 2026, by a vote of 216 to 212. The Senate Armed Services Committee reported S. 4784 on June 15, 2026. The full Senate has not passed it. Congress is expected to return to the bill after the November 2026 election.

FY2027 NDAA: appellate review tied to the parameters (both bills). House Section 546 and Senate Section 536 contain the same text. A Court of Criminal Appeals could not find confinement "inappropriately severe" if it is at or below the upper limit of the applicable sentencing parameter. Federal appellate courts may presume that a sentence within the guidelines range is reasonable.

FY2027 NDAA: factual sufficiency review (House only). House Section 545 would bar the Courts of Criminal Appeals from considering factual sufficiency, leaving review of legal sufficiency, the standard federal appeals courts apply. A related decision is summarized at CAAF's No Factual Sufficiency Review in U.S. v. Csiti.

FY2027 NDAA: special trial counsel agreements (both bills). House Section 542 and Senate Section 535 would allow special trial counsel to enter pretrial agreements for offenses committed before January 1, 2019, binding the convening authority once the judge accepts them.

FY2027 NDAA: the Special Review Panel (both bills). On May 8, 2026, the Secretary of Defense directed a Special Review Panel, led by the Defense Department's General Counsel, to review the military legal system and compare it with the Justice Department and civilian criminal justice systems. House Section 549C would bar carrying out the panel's recommendations until 180 days after they are submitted to Congress. Senate Section 539C would require annual reports through 2031, including the effect of any changes on the independence of special trial counsel. The House committee report also lists items on the termination and reinstatement of the Military Justice Review Panel and a GAO review of special trial counsel staffing.

Military Justice Review Panel: Article 32 (December 2023). The panel, created by Congress in the Military Justice Act of 2016, recommended amending Article 32 to (1) add discovery and protection against unfounded charges as purposes of the hearing, (2) require certified, trained hearing officers, such as military judges or magistrates, and (3) make a finding of no probable cause bar referral of that charge to a general court-martial, subject to review by a military judge. The third recommendation corresponds to federal Rule 5.1. Congress has not acted on it.

Military Justice Review Panel: special trial counsel independence (January 2025). A special report, Ensuring Office of the Special Trial Counsel Prosecutorial Independence, recommended measures to keep special trial counsel independent of command. The Defense Department directed the panel to stop operating on March 7, 2025.

Unanimous verdicts. In 2023, the House included a unanimous-verdict requirement in its FY2024 NDAA. The final law instead ordered a Defense Department study (Section 536), and the FY2025 NDAA changed its deadline. The Joint Service Committee completed the study in November 2024, and it became public through a FOIA request in May 2025. It concluded that requiring unanimous verdicts "is not advisable at this time," citing the effect of mistrials on military readiness, the loss of secret voting, and the risk of rank and command influence. As Congress required, the report included draft legislation requiring unanimity both to convict and to acquit, with a mistrial when the members cannot agree. The draft states that it is not Defense Department policy. Unanimity, which federal juries require, has not been enacted.

Not in the pending bills. None of the pending bills would create a grand jury, end the convening authority's role in selecting members, move all serious offenses to special trial counsel, or make the sentencing parameters advisory.

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Sources: 10 U.S.C. § 856 (Article 56) · 10 U.S.C. § 853 (Article 53) · 10 U.S.C. § 853a (Article 53a) · 10 U.S.C. § 806 (Article 6) · H.R. 8800, FY2027 NDAA (House-passed) · S. 4784, FY2027 NDAA (reported) · Joint Service Committee Report on the Adoption of Unanimous Verdicts (Nov. 2024) · Military Justice Review Panel, Assessment of Article 32 (Dec. 2023) · Military Justice Review Panel, Ensuring OSTC Prosecutorial Independence (Jan. 2025) · CAAF conference materials on the FY2022 NDAA · Military Justice Review Group report excerpt on Article 32 · Lawfare, What the FY2022 NDAA Does and Does Not Do for Military Justice · Military Times, Hegseth orders broad review of military legal system (May 22, 2026) · Just Security, The Armed Forces Need the Military Justice Review Panel

Kruse and Galvin: United States v. Kruse, No. 26-0156/MC (C.A.A.F. Sept. 1, 2026) · CAAF summary dispositions, including United States v. Galvin, No. 26-0300/AF (Oct. 19, 2026)

About the author. Jocelyn C. Stewart is a retired Army JAG with more than 24 years of trying courts-martial and more than 200 jury trials. She hosts Where All The Bodies Are Buried and runs the Law Office of Jocelyn C. Stewart. This analysis is for education and information only. It is not legal advice, and every case is different.