Federal Register, Volume 60 Issue 95 (Wednesday, May 17, 1995)
[Federal Register Volume 60, Number 95 (Wednesday, May 17, 1995)]
[Presidential Documents]
[Pages 26647-26666]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 95-12285]
[[Page 26645]]
_______________________________________________________________________
Part IX
The President
_______________________________________________________________________
Executive Order 12960--Amendments to the Manual For Courts-Martial,
United States, 1984
Presidential Documents
Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 26647]]
Executive Order 12960 of May 12, 1995
Amendments to the Manual for Courts-Martial,
United States, 1984
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including chapter 47 of title 10, United
States Code (Uniform Code of Military Justice, 10
U.S.C. 801-946), in order to prescribe amendments to
the Manual for Courts-Martial, United States, 1984,
prescribed by Executive Order No. 12473, as amended by
Executive Order No. 12484, Executive Order No. 12550,
Executive Order No. 12586, Executive Order No. 12708,
Executive Order No. 12767, Executive Order No. 12888,
and Executive Order No. 12936, it is hereby ordered as
follows:
Section 1. Part I of the Manual for Courts-Martial,
United States, 1984, is amended as follows:
Preamble, paragraph 4, is amended to read as follows:
``4. Structure and application of the Manual for
Courts-Martial.
The Manual for Courts-Martial shall consist of this
Preamble, the Rules for Courts-Martial, the Military
Rules of Evidence, the Punitive Articles, and the
Nonjudicial Punishment Procedures (Parts I-V). The
Manual shall be applied consistent with the purpose of
military law.
The Manual shall be identified as ``Manual for Courts-
Martial, United States (19xx edition).'' Any amendments
to the Manual made by Executive Order shall be
identified as ``19xx Amendments to the Manual for
Courts-Martial, United States.''''
Sec. 2. Part II of the Manual for Courts-Martial,
United States, 1984, is amended to read as follows:
a. R.C.M. 810(d) is amended to read as follows:
``(d) Sentence limitations.
(1) In general. Sentences at rehearings, new
trials, or other trials shall be adjudged within the
limitations set forth in R.C.M. 1003. Except as
otherwise provided in subsection (d)(2) of this rule,
offenses on which a rehearing, new trial, or other
trial has been ordered shall not be the basis for an
approved sentence in excess of or more severe than the
sentence ultimately approved by the convening or higher
authority following the previous trial or hearing,
unless the sentence prescribed for the offense is
mandatory. When a rehearing or sentencing is combined
with trial on new charges, the maximum punishment that
may be approved by the convening authority shall be the
maximum punishment under R.C.M. 1003 for the offenses
being reheard as limited above, plus the total maximum
punishment under R.C.M. 1003 for any new charges of
which the accused has been found guilty. In the case of
an ``other trial'' no sentence limitations apply if the
original trial was invalid because a summary or special
court-martial improperly tried an offense involving a
mandatory punishment or one otherwise considered
capital.
(2) Pretrial agreement. If, after the earlier
court-martial, the sentence was approved in accordance
with a pretrial agreement and at the rehearing the
accused fails to comply with the pretrial agreement, by
failing to enter a plea of guilty or otherwise, the
approved sentence resulting at a rehearing of the
affected charges and specifications may include any
otherwise lawful [[Page 26648]] punishment not in
excess of or more serious than lawfully adjudged at the
earlier court-martial.''
b. R.C.M. 924(a) is amended to read as follows:
``(a) Time for reconsideration. Members may
reconsider any finding reached by them before such
finding is announced in open session.''
c. R.C.M. 924(c) is amended to read as follows:
``(c) Military judge sitting alone. In a trial by
military judge alone, the military judge may reconsider
any finding of guilty at any time before announcement
of sentence and may reconsider the issue of the finding
of guilty of the elements in a finding of not guilty
only by reason of lack of mental responsibility at any
time before announcement of sentence or authentication
of the record of trial in the case of a complete
acquittal.''
d. R.C.M. 1003(b)(9) and the accompanying discussion
are deleted.
e. R.C.M. 1003(b)(10), (11), and (12) are redesignated
as subsections (9), (10), and (11), respectively.
f. R.C.M. 1009 is amended to read as follows:
``(a) Reconsideration. Subject to this rule, a
sentence may be reconsidered at any time before such
sentence is announced in open session of the court.
(b) Exceptions.
(1) If the sentence announced in open session was
less than the mandatory minimum prescribed for an
offense of which the accused has been found guilty, the
court that announced the sentence may reconsider such
sentence after it has been announced, and may increase
the sentence upon reconsideration in accordance with
subsection (e) of this rule.
(2) If the sentence announced in open session
exceeds the maximum permissible punishment for the
offense or the jurisdictional limitation of the court-
martial, the sentence may be reconsidered after
announcement in accordance with subsection (e) of this
rule.
(c) Clarification of sentence. A sentence may be
clarified at any time prior to action of the convening
authority on the case.
(1) Sentence adjudged by the military judge. When
a sentence adjudged by the military judge is ambiguous,
the military judge shall call a session for
clarification as soon as practical after the ambiguity
is discovered.
(2) Sentence adjudged by members. When a sentence
adjudged by members is ambiguous, the military judge
shall bring the matter to the attention of the members
if the matter is discovered before the court-martial is
adjourned. If the matter is discovered after
adjournment, the military judge may call a session for
clarification by the members who adjudged the sentence
as soon as practical after the ambiguity is discovered.
(d) Action by the convening authority. When a
sentence adjudged by the court-martial is ambiguous,
the convening authority may return the matter to the
court-martial for clarification. When a sentence
adjudged by the court-martial is apparently illegal,
the convening authority may return the matter to the
court-martial for reconsideration or may approve a
sentence no more severe than the legal, unambiguous
portions of the adjudged sentence.
(e) Reconsideration procedure. Any member of the
court-martial may propose that a sentence reached by
the members be reconsidered.
(1) Instructions. When a sentence has been
reached by members and reconsideration has been
initiated, the military judge shall instruct the
members on the procedure for reconsideration.
(2) Voting. The members shall vote by secret
written ballot in closed session whether to reconsider
a sentence already reached by them.
(3) Number of votes required. [[Page 26649]]
(A) With a view to increasing. Subject to
subsection (b) of this rule, members may reconsider a
sentence with a view of increasing it only if at least
a majority of the members vote for reconsideration.
(B) With a view to decreasing. Members may
reconsider a sentence with a view to decreasing it only
if:
(i) In the case of a sentence which includes
death, at least one member votes to reconsider;
(ii) In the case of a sentence which includes
confinement for life or more than 10 years, more than
one-fourth of the members vote to reconsider; or
(iii) In the case of any other sentence, more
than one-third of the members vote to reconsider.
(4) Successful vote. If a vote to reconsider a
sentence succeeds, the procedures in R.C.M. 1006 shall
apply.''
g. R.C.M. 1103(b)(3)(L) is deleted.
h. R.C.M. 1103(b)(3)(M) and (N) are redesignated as
subsections (L) and (M), respectively.
i. R.C.M. 1103(c)(2) is amended to read as follows:
``(2) Not involving a bad-conduct discharge. If the
special court-martial resulted in findings of guilty
but a bad-conduct discharge was not adjudged, the
requirements of subsections (b)(1), (b)(2)(D), and
(b)(3)(A)--(F) and (I)--(M) of this rule shall apply.''
j. R.C.M. 1104(b)(2) is amended to read as follows:
``(2) Summary courts-martial. The summary court-
martial record of trial shall be disposed of as
provided in R.C.M. 1305(d). Subsection (b)(1)(D) of
this rule shall apply if classified information is
included in the record of trial of a summary court-
martial.''
k. R.C.M. 1106(d)(3) is amended by adding a new
subsection (B) as follows:
``(B) A recommendation for clemency by the
sentencing authority, made in conjunction with the
announced sentence;''
l. R.C.M. 1106(d)(3)(B)--(E) are redesignated as
subsections (C)--(F), respectively.
m. R.C.M. 1107(d) is amended by adding a new
subparagraph (3) as follows:
``(3) Postponing service of a sentence to
confinement.
(A) In a case in which a court-martial sentences
an accused referred to in subsection (B), below, to
confinement, the convening authority may postpone
service of a sentence to confinement by a court-
martial, without the consent of the accused, until
after the accused has been permanently released to the
armed forces by a state or foreign country.
(B) Subsection (A) applies to an accused who,
while in custody of a state or foreign country, is
temporarily returned by that state or foreign country
to the armed forces for trial by court-martial; and
after the court-martial, is returned to that state or
foreign country under the authority of a mutual
agreement or treaty, as the case may be.
(C) As used in subsection (d)(3), the term
``state'' means a state of the United States, the
District of Columbia, a territory, and a possession of
the United States.''
n. R.C.M. 1107(d)(3) is redesignated as R.C.M.
1107(d)(4).
o. R.C.M. 1107(e)(1)(C)(iii) is amended to read as
follows:
``(iii) Rehearing on sentence only. A rehearing on
sentence only shall not be referred to a different kind
of court-martial from that which made the original
findings. If the convening authority determines a
rehearing on sentence is impracticable, the convening
authority may approve a sentence of no punishment
without conducting a rehearing.''
p. R.C.M. 1107(f)(2) is amended to read as
follows: [[Page 26650]]
``(2) Modification of initial action. The convening
authority may recall and modify any action taken by
that convening authority at any time before it has been
published or before the accused has been officially
notified. The convening authority also may recall and
modify any action at any time prior to forwarding the
record for review, as long as the modification does not
result in action less favorable to the accused than the
earlier action. In addition, in any special court-
martial, the convening authority may recall and correct
an illegal, erroneous, incomplete, or ambiguous action
at any time before completion of review under R.C.M.
1112, as long as the correction does not result in
action less favorable to the accused than the earlier
action. When so directed by a higher reviewing
authority or the Judge Advocate General, the convening
authority shall modify any incomplete, ambiguous, void,
or inaccurate action noted in review of the record of
trial under Article 64, 66, 67, or examination of the
record of trial under Article 69. The convening
authority shall personally sign any supplementary or
corrective action.''
q. R.C.M. 1108(b) is amended to read as follows:
``(b) Who may suspend and remit. The convening
authority may, after approving the sentence, suspend
the execution of all or any part of the sentence of a
court-martial except for a sentence of death. The
general court-martial convening authority over the
accused at the time of the court-martial may, when
taking the action under R.C.M. 1112(f), suspend or
remit any part of the sentence. The Secretary concerned
and, when designated by the Secretary concerned, any
Under Secretary, Assistant Secretary, Judge Advocate
General, or commanding officer may suspend or remit any
part or amount of the unexecuted part of any sentence
other than a sentence approved by the President. The
commander of the accused who has the authority to
convene a court-martial of the kind which adjudged the
sentence may suspend or remit any part or amount of the
unexecuted part of any sentence by summary court-
martial or of any sentence by special court-martial
which does not include a bad-conduct discharge
regardless of whether the person acting has previously
approved the sentence. The ``unexecuted part of any
sentence'' includes that part which has been approved
and ordered executed but which has not actually been
carried out.''
r. R.C.M. 1113(d)(2)(A) is amended by adding a new
subparagraph (iii) as follows:
``(iii) Periods during which the accused is in
custody of civilian or foreign authorities after the
convening authority, pursuant to Article 57(e), has
postponed the service of a sentence to confinement;''
s. R.C.M. 1113(d)(2)(A)(iii)--(iv) are redesignated
1113(d)(A)(iv)--(v), respectively.
t. R.C.M. 1113(d)(5) is deleted.
u. R.C.M. 1113(d)(6) is redesignated as subsection (5).
v. R.C.M. 1201(b)(3)(A) is amended to read as follows:
``(A) In general. Notwithstanding R.C.M. 1209, the
Judge Advocate General may, sua sponte or, except when
the accused has waived or withdrawn the right to
appellate review under R.C.M. 1110, upon application of
the accused or a person with authority to act for the
accused, vacate or modify, in whole or in part, the
findings, sentence, or both of a court-martial that has
been finally reviewed, but has not been reviewed either
by a Court of Military Review or by the Judge Advocate
General under subsection (b)(1) of this rule, on the
ground of newly discovered evidence, fraud on the
court-martial, lack of jurisdiction over the accused or
the offense, error prejudicial to the substantial
rights of the accused, or the appropriateness of the
sentence.''
w. R.C.M. 1305(d) is deleted.
x. R.C.M. 1305(e) is redesignated as subsection (d).
Sec. 3. Part III of the Manual for Courts-Martial,
United States, 1984, is amended as
follows: [[Page 26651]]
a. M.R.E. 311(g)(2) is amended to read as follows:
``(2) False statements. If the defense makes a
substantial preliminary showing that a government agent
included a false statement knowingly and intentionally
or with reckless disregard for the truth in the
information presented to the authorizing officer, and
if the allegedly false statement is necessary to the
finding of probable cause, the defense, upon request,
shall be entitled to a hearing. At the hearing, the
defense has the burden of establishing by a
preponderance of the evidence the allegation of knowing
and intentional falsity or reckless disregard for the
truth. If the defense meets its burden, the prosecution
has the burden of proving by a preponderance of the
evidence, with the false information set aside, that
the remaining information presented to the authorizing
officer is sufficient to establish probable cause. If
the prosecution does not meet its burden, the objection
or motion shall be granted unless the search is
otherwise lawful under these rules.''
b. M.R.E. 506(e) and (f) are amended to read as
follows:
``(e) Pretrial session. At any time after referral
of charges and prior to arraignment, any party may move
for a session under Article 39(a) to consider matters
relating to government information that may arise in
connection with the trial. Following such motion, or
sua sponte, the military judge promptly shall hold a
pretrial session under Article 39(a) to establish the
timing of requests for discovery, the provision of
notice under subsection (h), and the initiation of the
procedure under subsection (i). In addition, the
military judge may consider any other matters that
relate to government information or that may promote a
fair and expeditious trial.
(f) Action after motion for disclosure of
information. After referral of charges, if the defense
moves for disclosure of government information for
which a claim of privilege has been made under this
rule, the matter shall be reported to the convening
authority. The convening authority may:
(1) institute action to obtain the information
for use by the military judge in making a determination
under subdivision (i);
(2) dismiss the charges;
(3) dismiss the charges or specifications or both
to which the information relates; or
(4) take other action as may be required in the
interests of justice.
If, after a reasonable period of time, the information
is not provided to the military judge, the military
judge shall dismiss the charges or specifications or
both to which the information relates.''
c. M.R.E. 506(h) is amended to read as follows:
``(h) Prohibition against disclosure. The accused
may not disclose any information known or believed to
be subject to a claim of privilege under this rule
unless the military judge authorizes such disclosure.''
d. M.R.E. 506(i) is amended to read as follows:
``(i) In camera proceedings.
(1) Definition. For purposes of this subsection,
an ``in camera proceeding'' is a session under Article
39(a) from which the public is excluded.
(2) Motion for in camera proceeding. Within the
time specified by the military judge for the filing of
a motion under this rule, the Government may move for
an in camera proceeding concerning the use at any
proceeding of any government information that may be
subject to a claim of privilege. Thereafter, either
prior to or during trial, the military judge for good
cause shown or otherwise upon a claim of privilege may
grant the Government leave to move for an in camera
proceeding concerning the use of additional government
information.
(3) Demonstration of public interest nature of
the information. In order to obtain an in camera
proceeding under this rule, the Government shall
demonstrate, through the submission of affidavits and
information for examination only by the military judge,
that disclosure of the information reasonably could be
expected to cause identifiable damage to the public
interest. [[Page 26652]]
(4) In camera proceeding.
(A) Finding of identifiable damage. Upon finding
that the disclosure of some or all of the information
submitted by the Government under subsection (i)(3)
reasonably could be expected to cause identifiable
damage to the public interest, the military judge shall
conduct an in camera proceeding.
(B) Disclosure of the information to the defense.
Subject to subsection (F), below, the Government shall
disclose government information for which a claim of
privilege has been made to the accused, for the limited
purpose of litigating, in camera, the admissibility of
the information at trial. The military judge shall
enter an appropriate protective order to the accused
and all other appropriate trial participants concerning
the disclosure of the information according to
subsection (g), above. The accused shall not disclose
any information provided under this subsection unless,
and until, such information has been admitted into
evidence by the military judge. In the in camera
proceeding, both parties shall have the opportunity to
brief and argue the admissibility of the government
information at trial.
(C) Standard. Government information is subject
to disclosure at the court-martial proceeding under
this subsection if the party making the request
demonstrates a specific need for information containing
evidence that is relevant to the guilt or innocence or
to punishment of the accused, and is otherwise
admissible in the court-martial proceeding.
(D) Ruling. No information may be disclosed at
the court-martial proceeding or otherwise unless the
military judge makes a written determination that the
information is subject to disclosure under the standard
set forth in subsection (C), above. The military judge
will specify in writing any information that he or she
determines is subject to disclosure. The record of the
in camera proceeding shall be sealed and attached to
the record of trial as an appellate exhibit. The
accused may seek reconsideration of the determination
prior to or during trial.
(E) Alternatives to full disclosure. If the
military judge makes a determination under this
subsection that the information is subject to
disclosure, or if the Government elects not to contest
the relevance, necessity, and admissibility of the
government information, the Government may proffer a
statement admitting for purposes of the court-martial
any relevant facts such information would tend to prove
or may submit a portion or summary to be used in lieu
of the information. The military judge shall order that
such statement, portion, summary, or some other form of
information which the military judge finds to be
consistent with the interests of justice, be used by
the accused in place of the government information,
unless the military judge finds that use of the
government information itself is necessary to afford
the accused a fair trial.
(F) Sanctions. Government information may not be
disclosed over the Government's objection. If the
Government continues to object to disclosure of the
information following rulings by the military judge,
the military judge shall issue any order that the
interests of justice require. Such an order may
include:
(i) striking or precluding all or part of the
testimony of a witness;
(ii) declaring a mistrial;
(iii) finding against the Government on any issue
as to which the evidence is relevant and necessary to
the defense;
(iv) dismissing the charges, with or without
prejudice; or
(v) dismissing the charges or specifications or
both to which the information relates.''
e. A new M.R.E. 506(j) is added as follows:
``(j) Appeals of orders and rulings. In a court-
martial in which a punitive discharge may be adjudged,
the Government may appeal an order or ruling
[[Page 26653]] of the military judge that terminates
the proceedings with respect to a charge or
specification, directs the disclosure of government
information, or imposes sanctions for nondisclosure of
government information. The Government also may appeal
an order or ruling in which the military judge refuses
to issue a protective order sought by the United States
to prevent the disclosure of government information, or
to enforce such an order previously issued by
appropriate authority. The Government may not appeal an
order or ruling that is, or amounts to, a finding of
not guilty with respect to the charge or
specification.''
f. M.R.E. 506(j) and (k) are redesignated as (k) and
(l), respectively.
Sec. 4. Part IV of the Manual for Courts-Martial,
United States, 1984, is amended to read as follows:
a. Paragraph 4.c. is amended by adding a new
subparagraph (4) as follows:
``(4) Voluntary abandonment. It is a defense to an
attempt offense that the person voluntarily and
completely abandoned the intended crime, solely because
of the person's own sense that it was wrong, prior to
the completion of the crime. The voluntary abandonment
defense is not allowed if the abandonment results, in
whole or in part, from other reasons, such as, the
person feared detection or apprehension, decided to
await a better opportunity for success, was unable to
complete the crime, or encountered unanticipated
difficulties or unexpected resistance. A person who is
entitled to the defense of voluntary abandonment may
nonetheless be guilty of a lesser included, completed
offense. For example, a person who voluntarily
abandoned an attempted armed robbery may nonetheless be
guilty of assault with a dangerous weapon.''
b. Paragraph 4.c.(4), (5), and (6) are redesignated as
subparagraphs (5), (6) and (7), respectively.
c. Paragraph 30a.c(1), is amended to read as follows:
``(1) Intent. ``Intent or reason to believe'' that
the information ``is to be used to the injury of the
United States or to the advantage of a foreign nation''
means that the accused acted in bad faith and [delete
``or otherwise''] without lawful authority with respect
to information that is not lawfully accessible to the
public.''
d. Paragraph 35 is amended to read as follows:
``35. Article 111--Drunken or reckless operation of
a vehicle, aircraft, or vessel
a. Text.
``Any person subject to this chapter who--
(1) operates or physically controls any vehicle,
aircraft, or vessel in a reckless or wanton manner or
while impaired by a substance described in section
912a(b) of this title (Article 112a(b)), or
(2) operates or is in actual physical control of
any vehicle, aircraft, or vessel while drunk or when
the alcohol concentration in the person's blood or
breath is 0.10 grams of alcohol per 100 milliliters of
blood or 0.10 grams of alcohol per 210 liters of
breath, as shown by chemical analysis, shall be
punished as a court-martial may direct.''
b. Elements.
(1) That the accused was operating or in physical
control of a vehicle, aircraft, or vessel; and
(2) That while operating or in physical control
of a vehicle, aircraft, or vessel, the accused:
(a) did so in a wanton or reckless manner, or
(b) was drunk or impaired, or
(c) the alcohol concentration in the accused's
blood or breath was 0.10 grams of alcohol per 100
milliliters of blood or 0.10 grams of alcohol per 210
liters of breath, or greater, as shown by chemical
analysis. [[Page 26654]]
[Note: If injury resulted add the following
element]
(3) That the accused thereby caused the vehicle,
aircraft, or vessel to injure a person.
c. Explanation.
(1) Vehicle. See 1 U.S.C. Sec. 4.
(2) Vessel. See 1 U.S.C. Sec. 3.
(3) Aircraft. Any contrivance used or designed
for transportation in the air.
(4) Operates. Operating a vehicle, aircraft, or
vessel includes not only driving or guiding a vehicle,
aircraft, or vessel while it is in motion, either in
person or through the agency of another, but also
setting of its motive power in action or the
manipulation of its controls so as to cause the
particular vehicle, aircraft, or vessel to move.
(5) Physical control and actual physical control.
These terms as used in the statute are synonymous. They
describe the present capability and power to dominate,
direct, or regulate the vehicle, vessel, or aircraft,
either in person or through the agency of another,
regardless of whether such vehicle, aircraft, or vessel
is operated. For example, the intoxicated person seated
behind the steering wheel of a vehicle with the keys of
the vehicle in or near the ignition but with the engine
not turned on could be deemed in actual physical
control of that vehicle. However, the person asleep in
the back seat with the keys in his or her pocket would
not be deemed in actual physical control. Physical
control necessarily encompasses operation.
(6) Drunk or impaired. ``Drunk'' and ``impaired''
mean any intoxication which is sufficient to impair the
rational and full exercise of the mental or physical
faculties. The term ``drunk'' is used in relation to
intoxication by alcohol. The term ``impaired'' is used
in relation to intoxication by a substance described in
Article 112(a), Uniform Code of Military Justice.
(7) Reckless. The operation or physical control
of a vehicle, vessel, or aircraft is ``reckless'' when
it exhibits a culpable disregard of foreseeable
consequences to others from the act or omission
involved. Recklessness is not determined solely by
reason of the happening of an injury, or the invasion
of the rights of another, nor by proof alone of
excessive speed or erratic operation, but all these
factors may be admissible and relevant as bearing upon
the ultimate question: whether, under all the
circumstances, the accused's manner of operation or
physical control of the vehicle, vessel, or aircraft
was of that heedless nature which made it actually or
imminently dangerous to the occupants, or to the rights
or safety of others. It is operating or physically
controlling a vehicle, vessel, or aircraft with such a
high degree of negligence that if death were caused,
the accused would have committed involuntary
manslaughter, at least. The nature of the conditions in
which the vehicle, vessel, or aircraft is operated or
controlled, the time of day or night, the proximity and
number of other vehicles, vessels, or aircraft, and the
condition of the vehicle, vessel, or aircraft, are
often matters of importance in the proof of an offense
charged under this article and, where they are of
importance, may properly be alleged.
(8) Wanton. ``Wanton'' includes ``reckless'', but
in describing the operation or physical control of a
vehicle, vessel, or aircraft, ``wanton'' may, in a
proper case, connote willfulness, or a disregard of
probable consequences, and thus describe a more
aggravated offense.
(9) Causation. The accused's drunken or reckless
driving must be a proximate cause of injury for the
accused to be guilty of drunken or reckless driving
resulting in personal injury. To be proximate, the
accused's actions need not be the sole cause of the
injury, nor must they be the immediate cause of the
injury; that is, the latest in time and space preceding
the injury. A contributing cause is deemed proximate
only if it plays a material role in the victim's
injury. [[Page 26655]]
(10) Separate offenses. While the same course of
conduct may constitute violations of both subsections
(1) and (2) of the Article, (e.g., both drunken and
reckless operation or physical control), this article
proscribes the conduct described in both subsections as
separate offenses, which may be charged separately.
However, as recklessness is a relative matter, evidence
of all the surrounding circumstances that made the
operation dangerous, whether alleged or not, may be
admissible. Thus, on a charge of reckless driving, for
example, evidence of drunkenness might be admissible as
establishing one aspect of the recklessness, and
evidence that the vehicle exceeded a safe speed, at a
relevant prior point and time, might be admissible as
corroborating other evidence of the specific
recklessness charged. Similarly, on a charge of drunken
driving, relevant evidence of recklessness might have
probative value as corroborating other proof of
drunkenness.
d. Lesser included offense.
(1) Reckless or wanton or impaired operation or
physical control of a vessel. Article 110--improper
hazarding of a vessel.
(2) Drunken operation of a vehicle, vessel, or
aircraft while drunk or with a blood or breath alcohol
concentration in violation of the described per se
standard.
(a) Article 110--improper hazarding of a vessel
(b) Article 112--drunk on duty
(c) Article 134--drunk on station
e. Maximum punishment.
(1) Resulting in personal injury. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 18 months.
(2) No personal injury involved. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
f. Sample specification.
In that (personal jurisdiction
data), did (at/onboard--location) (subject-matter
jurisdiction data, if required), on or about
19, (in the motor pool area) (near the
Officer's Club)(at the intersection of and
) (while in the Gulf of Mexico)(while in
flight over North America) physically control [a
vehicle, to wit: (a truck)(a passenger car) (
)] [an aircraft, to wit: (an AH-64
helicopter)(an F-14A fighter) (a KC-135 tanker) (
)] [a vessel, to wit: (the aircraft
carrier USS ) (the Coast Guard
Cutter ) (
--)], [while drunk] [while impaired by
--] [while the alcohol concentration in his (blood was
0.10 grams of alcohol per 100 milliliters of blood or
greater)(breath was 0.10 grams of alcohol per 210
liters of breath or greater) as shown by chemical
analysis] [in a (reckless)(wanton) manner by
(attempting to pass another vehicle on a sharp
curve)(by ordering that the aircraft be flown below the
authorized altitude)] [and did thereby cause said
(vehicle) (aircraft)(vessel) to (strike and) (injure --
)].''
e. Paragraph 43.a.(3) is amended to read as follows:
``(3) is engaged in an act that is inherently
dangerous to another and evinces a wanton disregard of
human life; or''
f. Paragraph 43.b.(3)(c) is amended to read as follows:
``(c) That this act was inherently dangerous to
another and showed a wanton disregard for human life;''
g. Paragraph 43.c.(4)(a) is amended to read as follows:
``(a) Wanton disregard for human life.
Intentionally engaging in an act inherently dangerous
to another--although without an intent to cause the
death of or great bodily harm to any particular person,
or even with a wish that death will not be caused--may
also constitute murder if the [[Page 26656]] act shows
wanton disregard of human life. Such disregard is
characterized by heedlessness of the probable
consequences of the act or omission, or indifference to
the likelihood of death or great bodily harm. Examples
include throwing a live grenade toward another or
others in jest or flying an aircraft very low over one
or more persons to cause alarm.''
h. Paragraph 45.a.(a) is amended to read as follows:
``(a) Any person subject to this chapter who
commits an act of sexual intercourse by force and
without consent, is guilty of rape and shall be
punished by death or such other punishment as a court-
martial may direct.''
i. Paragraph 45.b.(1) is amended to read as follows:
``(a) That the accused committed an act of sexual
intercourse; and
(b) That the act of sexual intercourse was done by
force and without consent.''
j. Paragraph 45.c.(1)(a) and (b) are amended as
follows:
``(a) Nature of offense. Rape is sexual intercourse
by a person, executed by force and without consent of
the victim. It may be committed on a victim of any age.
Any penetration, however slight, is sufficient to
complete the offense.
(b) Force and lack of consent. Force and lack of
consent are necessary to the offense. Thus, if the
victim consents to the act, it is not rape. The lack of
consent required, however, is more than mere lack of
acquiescence. If a victim in possession of his or her
mental faculties fails to make lack of consent
reasonably manifest by taking such measures of
resistance as are called for by the circumstances, the
inference may be drawn that the victim did consent.
Consent, however, may not be inferred if resistance
would have been futile, where resistance is overcome by
threats of death or great bodily harm, or where the
victim is unable to resist because of the lack of
mental or physical faculties. In such a case there is
no consent and the force involved in penetration will
suffice. All the surrounding circumstances are to be
considered in determining whether a victim gave
consent, or whether he or she failed or ceased to
resist only because of a reasonable fear of death or
grievous bodily harm. If there is actual consent,
although obtained by fraud, the act is not rape, but if
to the accused's knowledge the victim is of unsound
mind or unconscious to an extent rendering him or her
incapable of giving consent, the act is rape. Likewise,
the acquiescence of a child of such tender years that
he or she is incapable of understanding the nature of
the act is not consent.''
k. Paragraph 89.c. is amended to read as follows:
``(c) Explanation. ``Indecent'' language is that
which is grossly offensive to modesty, decency, or
propriety, or shocks the moral sense, because of its
vulgar, filthy, or disgusting nature, or its tendency
to incite lustful thought. Language is indecent if it
tends reasonably to corrupt morals or incite libidinous
thoughts. The language must violate community
standards. See paragraph 87 if the communication was
made in the physical presence of a child.''
l. The following new paragraph is added after paragraph
103:
``103a. Article 134 (Self-injury without intent to
avoid service)
a. Text. See paragraph 60.
b. Elements.
(1) That the accused intentionally inflicted
injury upon himself or herself;
(2) That, under the circumstances, the conduct of
the accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
[Note: If the offense was committed in time of
war or in a hostile fire pay zone, add the following
element]
(3) That the offense was committed (in time of
war) (in a hostile fire pay zone). [[Page 26657]]
c. Explanation.
(1) Nature of offense. This offense differs from
malingering (see paragraph 40) in that for this
offense, the accused need not have harbored a design to
avoid performance of any work, duty, or service which
may properly or normally be expected of one in the
military service. This offense is characterized by
intentional self-injury under such circumstances as
prejudice good order and discipline or discredit the
armed forces. It is not required that the accused be
unable to perform duties, or that the accused actually
be absent from his or her place of duty as a result of
the injury. For example, the accused may inflict the
injury while on leave or pass. The circumstances and
extent of injury, however, are relevant to a
determination that the accused's conduct was
prejudicial to good order and discipline, or service-
discrediting.
(2) How injury inflicted. The injury may be
inflicted by nonviolent as well as by violent means and
may be accomplished by any act or omission that
produces, prolongs, or aggravates a sickness or
disability. Thus, voluntary starvation that results in
a debility is a self-inflicted injury. Similarly, the
injury may be inflicted by another at the accused's
request.
d. Lesser included offense. Article 80--attempts
e. Maximum punishment.
(1) Intentional self-inflicted injury.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 2 years.
(2) Intentional self-inflicted injury in time of
war or in a hostile fire pay zone. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
f. Sample specification.
In that (personal jurisdiction
data), did, (at/on board--location) (in a hostile fire
pay zone) on or about 19, (a
time of war,) intentionally injure himself/herself by
(nature and circumstances of injury).''
Sec. 5. These amendments shall take effect on June 10,
1995, subject to the following:
a. Nothing in these amendments shall be construed to
make punishable any act done or omitted prior to June
10, 1995.
b. The maximum punishment for an offense committed
prior to June 10, 1995, shall not exceed the applicable
maximum in effect at the time of the commission of such
offense.
c. Nothing in these amendments shall be construed to
invalidate any nonjudicial punishment proceeding,
restraint, investigation, referral of charges, trial in
which arraignment occurred, or other action begun prior
to June 10, 1995, and any such nonjudicial punishment,
restraint, investigation, referral of charges, trial,
or other action may proceed in the same manner and with
the same effect as if these amendments had not been
prescribed.
(Presidential Sig.)
THE WHITE HOUSE,
May 12, 1995.
Billing code 3195-01-P
[[Page 26658]]
Changes to the Analysis accompanying the Manual for
Courts-Martial, United States, 1984.
1. Changes to Appendix 21, the Analysis accompanying
the Rules for Courts-Martial (Part II, MCM, 1984).
a. R.C.M. 203. The Analysis accompanying R.C.M. 203 is
amended by inserting the following at the end thereof:
``1995 Amendment: The discussion was amended in
light of Solorio v. United States, 483 U.S. 435 (1987).
O'Callahan v. Parker, 395 U.S. 258 (1969), held that an
offense under the code could not be tried by court-
martial unless the offense was ``service connected.''
Solorio overruled O'Callahan.''
b. R.C.M. 307. The Analysis accompanying R.C.M. 307 is
amended by inserting the following at the end thereof:
``1995 Amendment: The discussion was amended in
conformance with a concurrent change to R.C.M. 203, in
light of Solorio v. United States, 483 U.S. 435 (1987).
O'Callahan v. Parker, 395 U.S. 258 (1969), held that an
offense under the code could not be tried by court-
martial unless the offense was ``service connected.''
Solorio overruled O'Callahan.''
c. R.C.M. 810. The Analysis accompanying R.C.M. 810 is
amended by inserting the following at the end thereof:
``1995 Amendment: Subsection (d) was amended in
light of the change to Article 63 effected by the
National Defense Authorization Act for Fiscal Year
1993, Pub. L. No. 102-484, 106 Stat. 2315, 2506 (1992).
The amendment reflects that subsection (d) sentencing
limitations only affect the sentence that may be
approved by the convening or higher authority following
the rehearing, new trial or other trial. Subsection (d)
does not limit the maximum sentence that may be
adjudged at the rehearing, new trial, or other trial.''
d. R.C.M. 924. The Analysis accompanying R.C.M. 924 is
amended by inserting the following at the end thereof:
``1995 Amendment: The amendment limits
reconsideration of findings by the members to findings
reached in closed session but not yet announced in open
court and provides for the military judge, in judge
alone cases, to reconsider the ``guilty finding'' of a
not guilty only by reason of lack of mental
responsibility finding.''
e. R.C.M. 1003(b). The Analysis accompanying R.C.M.
1003(b) is amended by inserting the following:
``1995 Amendment: Punishment of confinement on
bread and water or diminished rations [R.C.M.
1003(d)(9)], as a punishment imposable by a court-
martial, was deleted. Confinement on bread and water or
diminished rations was originally intended as an
immediate, remedial punishment. While this is still the
case with nonjudicial punishment (Article 15), it is
not effective as a court-martial punishment.
Subsections (d)(10) through (d)(12) were redesignated
(d)(9) through (d)(11), respectively.''
f. R.C.M. 1009. The Analysis accompanying R.C.M. 1009
is amended by inserting the following at the end
thereof:
``1995 Amendment: This rule was changed to prevent
a sentencing authority from reconsidering a sentence
announced in open session. Subsection (b) was amended
to allow reconsideration if the sentence was less than
the mandatory maximum prescribed for the offense or the
sentence exceeds the maximum permissible punishment for
the offense or the jurisdictional limitation of the
court-martial. Subsection (c) is new and provides for
the military judge to clarify an announced sentence
that is ambiguous. Subsection (d) provides for the
convening authority to exercise discretionary authority
to return an ambiguous sentence for clarification, or
take action consistent with R.C.M. 1107.''
g. R.C.M. 1103. The Analysis accompanying R.C.M. 1103
is amended by inserting the following at the end
thereof:
``1995 Amendment: Punishment of confinement on
bread and water or diminished rations [R.C.M.
1003(d)(9)], as a punishment imposable by a
[[Page 26659]] court-martial, was deleted.
Consequently, the requirement to attach a Medical
Certificate to the record of trial [R.C.M.
1103(b)(3)(L)] was deleted. Subsections (3)(M) and
(3)(N) were redesignated (3)(L) and (3)(M),
respectively.''
h. R.C.M. 1105(b)(4). The Analysis accompanying R.C.M.
1105(b) is amended to read as follows:
``1995 Amendment: The Discussion accompanying
subsection (b)(4) was amended to reflect the new
requirement, under R.C.M. 1106(d)(3)(B), that the staff
judge advocate or legal advisor inform the convening
authority of a recommendation for clemency by the
sentencing authority, made in conjunction with the
announced sentence.''
i. R.C.M. 1106(d)(3). The Analysis accompanying R.C.M.
1106(d) is amended to read as follows:
``1995 Amendment: Subsection (d)(3)(B) is new. It
requires that the staff judge advocate's or legal
advisor's recommendation inform the convening authority
of any clemency recommendation made by the sentencing
authority in conjunction with the announced sentence,
absent a written request by the defense to the
contrary. Prior to this amendment, an accused was
responsible for informing the convening authority of
any such recommendation. The amendment recognizes that
any clemency recommendation is so closely related to
the sentence that staff judge advocates and legal
advisors should be responsible for informing convening
authorities of it. The accused remains responsible for
informing the convening authority of other
recommendations for clemency, including those made by
the military judge in a trial with member sentencing
and those made by individual members. See United States
v. Clear, 34 M.J. 129 (C.M.A. 1992); R.C.M. 1105(b)(4).
Subsections (d)(3)(B)--(d)(3)(E) are redesignated as
(d)(3)(C)--(d)(3)(F), respectively.''
j. R.C.M. 1107(d). The Analysis accompanying R.C.M.
1107(d) is amended to read as follows:
``1995 Amendment: Subsection (d)(3) is new. It is
based on the recently enacted Article 57(e). National
Defense Authorization Act for Fiscal Year 1993, Pub. L.
No. 102-484, 106 Stat. 2315, 2505 (1992). See generally
Interstate Agreement on Detainers Act, 18 U.S.C. App.
III. It permits a military sentence to be served
consecutively, rather than concurrently, with a
civilian or foreign sentence. The prior subsection
(d)(3) is redesignated (d)(4).''
k. R.C.M. 1107(d)(2). The Analysis accompanying R.C.M.
1107(d)(2) is amended to read as follows:
``1995 Amendment: The last sentence in the
Discussion accompanying subsection (d)(2) is new. It
clarifies that forfeitures adjudged at courts-martial
take precedence over all debts owed by the accused.
Department of Defense Military Pay and Allowances
Entitlement Manual, Volume 7, Part A, paragraph 70507a
(12 December 1994).''
l. R.C.M. 1107(e)(1)(C)(iii). The Analysis accompanying
R.C.M. 1107(e)(1) is amended to read as follows:
``1995 Amendment: The second sentence in R.C.M.
1107(e)(1)(C)(iii) is new. It expressly recognizes that
the convening authority may approve a sentence of no
punishment if the convening authority determines that a
rehearing on sentence is impracticable. This authority
has been recognized by the appellate courts. See e.g.,
United States v. Monetesinos, 28 M.J. 38 (C.M.A. 1989);
United States v. Sala, 30 M.J. 813 (A.C.M.R. 1990).''
m. R.C.M. 1107(f)(2). The Analysis accompanying R.C.M.
1107(f)(2) is amended by inserting the following at its
end:
``1995 Amendment: The amendment allows a convening
authority to recall and modify any action after it has
been published or after an accused has been officially
notified, but before a record has been forwarded for
review, as long as the new action is not less favorable
to the accused than the prior action. A convening
authority is not limited to taking only corrective
action, but may also modify the approved findings or
sentence provided the modification is not less
favorable to the accused than the earlier
action.'' [[Page 26660]]
n. R.C.M. 1113(d)(2)(A). The Analysis accompanying
R.C.M. 1113(d)(2)(A) is amended by inserting the
following at the end thereof:
``1995 Amendment: Subsection (d)(2)(A)(iii) is new.
It is based on the recently enacted Article 57(e).
National Defense Authorization Act for Fiscal Year
1993, Pub. L. No. 102-484, 106 Stat. 2315, 2505 (1992).
See generally Interstate Agreement on Detainers Act, 18
U.S.C. App. III. It permits a military sentence to be
served consecutively, rather than concurrently, with a
civilian or foreign sentence. The prior subsections
(d)(2)(A)(iii)--(iv) are redesignated (d)(2)(A)(iv)--
(v), respectively.''
o. R.C.M. 1113(d)(5). The Analysis accompanying R.C.M.
1113(d)(5) is amended by inserting the following at the
end thereof:
``1995 Amendment: Subsection (5) was deleted when
the punishment of confinement on bread and water or
diminished rations [R.C.M. 1113(d)(9)], as a punishment
imposable by a court-martial, was deleted. Subsection
(6) was redesignated (5).''
p. R.C.M. 1201(b)(1). The Analysis accompanying R.C.M.
1201(b)(1) is amended to read as follows:
``1995 Amendment: The Discussion accompanying
subsection (1) was amended to conform with the language
of Article 69(a), as enacted by the Military Justice
Amendments of 1989, tit. XIII, sec. 1302(a)(2),
National Defense Authorization Act for Fiscal Years
1990 and 1991, Pub. L. No. 101-189, 103 Stat. 1352,
1576 (1989).''
2. Changes to Appendix 21, the Analysis accompanying
the Punitive Articles (Part IV, MCM, 1984).
a. Paragraph 4c. The Analysis accompanying paragraph 4c
is amended to read as follows:
``1995 Amendment: Subparagraph (4) is new. It
recognizes voluntary abandonment as an affirmative
defense as established by the case law. See United
States v. Byrd, 24 M.J. 286 (C.M.A. 1987). See also
United States v. Schoof, 37 M.J. 96, 103-04 (C.M.A.
1993); United States v. Rios, 33 M.J. 436, 440-41
(C.M.A. 1991); United States v. Miller, 30 M.J. 999
(N.M.C.M.R. 1990); United States v. Walther, 30 M.J.
829, 829-33 (N.M.C.M.R. 1990). The prior subparagraphs
(4)--(6) have been redesignated (5)--(7),
respectively.''
b. Paragraph 30a.c. The Analysis accompanying paragraph
30a.c., is amended as follows:
``1995 Amendment: This subparagraph was amended to
clarify that the intent element of espionage is not
satisfied merely by proving that the accused acted
without lawful authority. Article 106a, Uniform Code of
Military Justice. The accused must have acted in bad
faith. United States v. Richardson, 33 M.J. 127 (C.M.A.
1991); see Gorin v. United States, 312 U.S. 19, 21 n.1
(1941).''
c. Paragraph 35. The Analysis accompanying paragraph 35
is amended to read as follows:
``1995 Amendment: This paragraph was amended
pursuant to the changes to Article 111 included in the
National Defense Authorization Act for Fiscal Year
1993, Pub. L. No. 102-484, 106 Stat. 2315, 2506 (1992).
New subparagraphs c(2) and (3) were added to include
vessels and aircraft, respectively. Paragraph 35 was
also amended to make punishable actual physical control
of a vehicle, aircraft, or vessel while drunk or
impaired, or in a reckless fashion, or while one's
blood or breath alcohol concentration is in violation
of the described per se standard. A new subparagraph
c(5) was added to define the concept of actual physical
control. This change allows drunk or impaired
individuals who demonstrate the capability and power to
operate a vehicle, aircraft, or vessel to be
apprehended if in the vehicle, aircraft, or vessel, but
not actually operating it at the time.
The amendment also clarifies that culpability
extends to the person operating or exercising actual
physical control through the agency of another (e.g.,
the captain of a ship giving orders to a helmsman). The
amendment also provides a blood/alcohol blood/breath
concentration of 0.10 or greater [[Page 26661]] as a
per se standard for illegal intoxication. The change
will not, however, preclude prosecution where no
chemical test is taken or even where the results of the
chemical tests are below the statutory limits, where
other evidence of intoxication is available. See United
States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970).
A new paragraph c(9) was added to clarify that in
order to show that the accused caused personal injury,
the government must prove proximate causation and not
merely cause-in-fact. Accord United States v.
Lingenfelter, 30 M.J. 302 (C.M.A. 1990). The definition
of ``proximate cause'' is based on United States v.
Romero, 1 M.J. 227, 230 (C.M.A. 1975). Previous
subparagraph c(2) is renumbered c(4). Previous
subparagraphs c(3)-c(5) are renumbered c(6)-c(8),
respectively, and previous subparagraph c(6) is
renumbered c(10).
Subparagraphs d(1) and (2) are redesignated d(2)(b)
and d(2)(c). The new d(2)(a) adds Article 110 (improper
hazarding of a vessel) as a lesser included offense of
drunken operation or actual physical control of a
vessel. The new d(1) adds Article 110 (improper
hazarding of a vessel) as a lesser included offense of
reckless or wanton or impaired operation or physical
control of a vessel.''
d. Paragraph 43. The Analysis accompanying paragraph 43
is amended to read as follows:
``1995 Amendment: The word ``others'' was replaced
by the word ``another'' in Article 118(3) pursuant to
the National Defense Authorization Act for Fiscal Year
1993, Pub. L. No. 102-484, 106 Stat. 2315, 2506 (1992).
This change addresses the limited language previously
used in Article 118(3) as identified in United States
v. Berg, 30 M.J. 195 (C.M.A. 1990).''
e. Paragraph 45. The Analysis accompanying paragraph 45
is amended to read as follows:
``1995 Amendment: The offense of rape was made
gender neutral and the spousal exception was removed
under Article 120(a). National Defense Authorization
Act for Fiscal Year 1993, Pub. L. No. 102-484, 106
Stat. 2315, 2506 (1992).
Rape may ``be punished by death'' only if
constitutionally permissible. In Coker v. Georgia, 322
U.S. 585 (1977), the Court held that the death penalty
is ``grossly disproportionate and excessive punishment
for the rape of an adult woman,'' and is ``therefore
forbidden by the Eighth Amendment as cruel and unusual
punishment.'' Id. at 592 (plurality opinion). Coker,
however, leaves open the question of whether it is
permissible to impose the death penalty for the rape of
a minor by an adult. See Coker, 433 U.S. at 595. See
Leatherwood v. State, 548 So.2d 389 (Miss. 1989) (death
sentence for rape of minor by an adult is not cruel and
unusual punishment prohibited by the Eighth Amendment).
But see Buford v. State, 403 So.2d 943 (Fla. 1981)
(sentence of death is grossly disproportionate for
sexual assault of a minor by an adult and consequently
is forbidden by Eighth Amendment as cruel and unusual
punishment).''
f. Paragraph 89. The Analysis accompanying paragraph
89c is amended to read as follows:
``1995 Amendment: The second sentence is new. It
incorporates a test for ``indecent language'' adopted
by the Court of Military Appeals in United States v.
French, 31 M.J. 57, 60 (C.M.A. 1990). The term ``tends
reasonably'' is substituted for the term ``calculated
to'' to avoid the misinterpretation that indecent
language is a specific intent offense.''
g. Paragraph 103a. Insert the following after the
Analysis of paragraph 103:
``103a. Article 134 (Self-injury without intent to
avoid service)
c. Explanation. 1995 Amendment. This offense is
based on paragraph 183a of MCM, U.S. Army, 1949; United
States v. Ramsey, 35 M.J. 733 (A.C.M.R. 1992), aff'd,
40 M.J. 71 (C.M.A. 1994); United States v. Taylor, 38
C.M.R. 393 (C.M.A. 1968); see generally TJAGSA Practice
Note, Confusion About Malingering and Attempted
Suicide, The Army Lawyer, June 1992, at
38. [[Page 26662]]
e. Maximum punishment. 1995 Amendment. The
maximum punishment for subsection (1) reflects the
serious effect that this offense may have on readiness
and morale. The maximum punishment reflects the range
of the effects of the injury, both in degree and
duration, on the ability of the accused to perform
work, duty, or service. The maximum punishment for
subsection (1) is equivalent to that for offenses of
desertion, missing movement through design, and certain
violations of orders. The maximum punishment for
subsection (2) is less than the maximum punishment for
the offense of malingering under the same circumstances
because of the absence of the specific intent to avoid
work, duty, or service. The maximum punishment for
subsection (2) is equivalent to that for nonaggravated
offenses of desertion, willfully disobeying a superior
commissioned officer, and nonaggravated malingering by
intentional self-inflicted injury.
f. Sample specification. 1995 Amendment. See
appendix 4, paragraph 177 of MCM, U.S. Army, 1949.
Since incapacitation to perform duties is not an
element of the offense, language relating to
``unfitting himself for the full performance of
military service'' from the 1949 MCM has been omitted.
The phrase ``willfully injure'' has been changed to
read ``intentionally injure'' to parallel the language
contained in the malingering specification under
Article 115.''
3. Changes to Appendix 22, the Analysis accompanying
the Military Rules of Evidence (Part III, MCM, 1984).
a. M.R.E. 311(g)(2). The Analysis accompanying M.R.E.
311(g)(2) is amended by inserting the following at the
end thereof:
``1995 Amendment: Subsection (g)(2) was amended to
clarify that in order for the defense to prevail on an
objection or motion under this rule, it must establish,
inter alia, that the falsity of the evidence was
``knowing and intentional'' or in reckless disregard
for the truth. Accord Franks v. Delaware, 438 U.S. 154
(1978).''
b. M.R.E. 506(e). The Analysis accompanying M.R.E.
506(e) is amended by inserting the following at the end
thereof:
``1995 Amendment: It is the intent of the Committee
that if classified information arises during a
proceeding under Rule 506, the procedures of Rule 505
will be used.
The new subsection (e) was formerly subsection (f).
The matters in the former subsection (f) were adopted
without change. The former subsection (e) was amended
and redesignated as subsection (f) (see below).''
c. M.R.E. 506(f). The Analysis accompanying M.R.E.
506(f) is amended by inserting the following at the end
thereof:
``1995 Amendment. See generally Rule 505(f) and its
accompanying Analysis. Note that unlike Rule 505(f),
however, Rule 506(f) does not require a finding that
failure to disclose the information in question ``would
materially prejudice a substantial right of the
accused.'' Dismissal is not required when the relevant
information is not disclosed in a ``reasonable period
of time.''
Subsection (f) was formerly subsection (e). The
subsection was amended to cover action after a defense
motion for discovery, rather than action after referral
of charges. The qualification that the government claim
of privilege pertains to information ``that apparently
contains evidence that is relevant and necessary to an
element of the offense or a legally cognizable defense
and is otherwise admissible in evidence in a court-
martial proceeding'' was deleted as unnecessary. Action
by the convening authority is required if, after
referral, the defense moves for disclosure and the
Government claims the information is privileged from
disclosure.''
d. M.R.E. 506(h). The Analysis accompanying M.R.E.
506(h) is amended by inserting the following at the end
thereof:
``1995 Amendment: Subsection (h) was amended to
provide that government information may not be
disclosed by the accused unless authorized by the
military judge.'' [[Page 26663]]
e. M.R.E. 506(i). The Analysis accompanying M.R.E.
506(i) is amended by inserting the following at the end
thereof:
``1995 Amendment: Subsection (i) was amended to
clarify the procedure for in camera proceedings. The
definition in subsection (i)(1) was amended to conform
to the definition of in camera proceedings in M.R.E.
505(i)(1). Subsections (i)(2) and (i)(3) were
unchanged. Subsection (i)(4)(B), redesignated as
(i)(4)(C), was amended to include admissible evidence
relevant to punishment of the accused, consistent with
Brady v. Maryland, 373 U.S. 83, 87 (1963). Subsection
(i)(4)(C) was redesignated as (i)(4)(D), but was
otherwise unchanged. The amended procedures provide for
full disclosure of the government information in
question to the accused for purposes of litigating the
admissibility of the information in the protected
environment of the in camera proceeding; i.e., the
Article 39(a) session is closed to the public and
neither side may disclose the information outside the
in camera proceeding until the military judge admits
the information as evidence in the trial. Under
subsection (i)(4)(E), the military judge may authorize
alternatives to disclosure, consistent with a military
judge's authority concerning classified information
under M.R.E. 505. Subsection (i)(4)(F) allows the
Government to determine whether the information
ultimately will be disclosed to the accused. However,
the Government's continued objection to disclosure may
be at the price of letting the accused go free, in that
subsection (i)(4)(F) adopts the sanctions available to
the military judge under M.R.E. 505(i)(4)(E). See U.S.
v. Reynolds, 345 U.S. 1, 12 (1953).''
f. M.R.E. 506(j). The Analysis accompanying M.R.E.
506(j) is amended by inserting the following at the end
thereof:
``1995 Amendment: Subsection (j) was added to
recognize the Government's right to appeal certain
rulings and orders. See R.C.M. 908. The former
subsection (j) was redesignated as subsection (k). The
subsection speaks only to government appeals; the
defense still may seek extraordinary relief through
interlocutory appeal of the military judge's orders and
rulings. See generally, 28 U.S.C. Sec. 1651(a); Waller
v. Swift, 30 M.J. 139 (C.M.A. 1990); Dettinger v.
United States, 7 M.J. 216 (C.M.A. 1979).''
g. M.R.E. 506(j) and (k). The Analyses accompanying
M.R.E. 506(j) and M.R.E. 506(k) are redesignated as
subdivisions (k) and (l), respectively.
Changes to the Discussion Accompanying the Manual for
Courts-Martial, United States, 1984.
A. The Discussion accompanying Part I., Preamble,
paragraph. 4., is amended by inserting the following at
the end thereof:
``The 1995 amendment to paragraph 4 of the Preamble
is intended to eliminate the practice of identifying
the Manual for Courts-Martial, United States, by a
particular year. As long as the Manual was published in
its entirety sporadically (e.g., 1917, 1921, 1928,
1949, 1951, 1969 and 1984), with amendments to it
published piecemeal, it was logical to identify the
Manual by the calendar year of publication, with
periodic amendments identified as ``Changes'' to the
Manual. The more frequent publication of a new edition
of the Manual, however, means that it is more
appropriately identified by the calendar year of
edition. Amendments made in a particular calendar year
will be identified by publishing the relevant Executive
order containing those amendments in its entirety in a
Manual appendix.''
B. Subsection 2(B)(ii) of the Discussion following
R.C.M. 202(a) is amended to read as follows:
``(ii) Effect of discharge and reenlistment. For
offenses occurring on or after 23 October 1992, under
the 1992 Amendment to Article 3(a), a person who
reenlists following a discharge may be tried for
offenses committed during the earlier term of service.
For offenses occurring prior to 23 October 1992, a
person who reenlists following a discharge may be tried
for offenses committed during the earlier term of
service only if the offense was punishable by
confinement for five (5) years or more and could not be
tried [[Page 26664]] in the courts of the United States
or of a State, a Possession, a Territory, or the
District of Columbia. However, see (iii)(a) below.''
C. Subsections 2(B)(iii) and 2(B)(iii)(a) of the
Discussion following R.C.M. 202(a) are amended to read
as follows:
``(iii) Exceptions. There are several exceptions to
the general principle that court-martial jurisdiction
terminates on discharge or its equivalent.
(a) A person who was subject to the code at the
time an offense was committed may be tried by court-
martial for that offense despite a later discharge or
other termination of that status if:
(1) For offenses occurring on or after 23 October
1992, the person is, at the time of the court-martial,
subject to the code, by reentry into the armed forces
or otherwise. See Article 3(a) as amended by the
National Defense Authorization Act for Fiscal Year
1993, Pub. L. No. 102-484, 106 Stat. 2315, 2505 (1992);
(2) For offenses occurring before 23 October
1992,
(A) The offense is one for which a court-martial
may adjudge confinement for five (5) or more years;
(B) The person cannot be tried in the courts of
the United States or of a State, a Possession, a
Territory, or the District of Columbia; and
(C) The person is, at the time of the court-
martial, subject to the code, by reentry into the armed
forces or otherwise. See Article 3(a) prior to the 1992
amendment.''
D. The Discussion following R.C.M. 203 is amended to
read as follows:
``(a) In general. Courts-martial have power to try
any offense under the code except when prohibited from
so doing by the Constitution. The rule enunciated in
Solorio v. United States, 483 U.S. 435 (1987) is that
jurisdiction of courts-martial depends solely on the
accused's status as a person subject to the Uniform
Code of Military Justice, and not on the ``service
connection'' of the offense charged.
(b) Pleading and proof. Normally, the inclusion of
the accused's rank or grade will be sufficient to plead
the service status of the accused. Ordinarily, no
allegation of the accused's armed force or unit is
necessary for military members on active duty. See
R.C.M. 307 regarding required specificity of
pleadings.''
E. Subparagraph (F) of the Discussion following R.C.M.
307(c)(3) is amended to read as follows:
``(F) Subject-matter jurisdiction allegations.
Pleading the accused's rank or grade along with the
proper elements of the offense normally will be
sufficient to establish subject-matter jurisdiction.''
F. The first two sentences of the Discussion following
R.C.M. 810(d)(1) are amended to read as follows:
``In approving a sentence not in excess of one more
severe than one approved previously, a convening
authority is not limited to approving the same or
lesser amount of the same type of punishment formerly
approved. An appropriate sentence on a retried or
reheard offense should be adjudged without regard to
any credit to which the accused may be entitled.''
G. The following Discussion is inserted after R.C.M.
902(d)(2):
``Nothing in this rule prohibits the military judge
from reasonably limiting the presentation of evidence,
the scope of questioning, and argument on the subject
so as to ensure that only matters material to the
central issue of the military judge's possible
disqualification are considered, thereby, preventing
the proceedings from becoming a forum for unfounded
opinion, speculation or innuendo.''
H. The Discussion following R.C.M. 1003(b)(6) is
amended to read as follows:
``Restriction does not exempt the person on whom
it is imposed from any military duty. Restriction and
hard labor without confinement may be adjudged in the
same case provided they do not exceed the maximum
[[Page 26665]] limits for each. See subsection
(c)(1)(A)(ii) of this rule. The sentence adjudged
should specify the limits of the restriction.''
I. The Discussion following R.C.M. 1105(b)(4) is
amended by adding the following sentence at the end
thereof:
``If the sentencing authority makes a clemency
recommendation in conjunction with the announced
sentence, see R.C.M. 1106(d)(3)(B).''
J. The following Discussion is inserted after R.C.M.
1106(d)(3)(B):
``The recommendation required by this rule need
not include information regarding other recommendations
for clemency. See R.C.M. 1105(b)(5), which pertains to
clemency recommendations that may be submitted by the
accused to the convening authority.''
K. The Discussion following R.C.M. 1107(d)(1) is
amended to read as follows:
``A sentence adjudged by a court-martial may be
approved if it was within the jurisdiction of the
court-martial to adjudge (see R.C.M. 201(f)) and did
not exceed the maximum limits prescribed in Part IV and
Chapter X of this Part for the offense(s) of which the
accused legally has been found guilty.
When mitigating forfeitures, the duration and
amounts of forfeiture may be changed as long as the
total amount forfeited is not increased and neither the
amount nor duration of the forfeiture exceeds the
jurisdiction of the court-martial. When mitigating
confinement or hard labor without confinement, the
convening authority should use the equivalencies at
R.C.M. 1003(b)(6) and (7), as appropriate. One form of
punishment may be changed to a less severe punishment
of a different nature, as long as the changed
punishment is one that the court-martial could have
adjudged. For example, a bad-conduct discharge adjudged
by a special court-martial could be changed to
confinement for 6 months (but not vice versa). A
pretrial agreement may also affect what punishments may
be changed by the convening authority.
See also R.C.M. 810(d) concerning sentence
limitations upon a rehearing or new or other trial.''
L. The Discussion following R.C.M. 1107(d)(2) is
amended by adding the following sentence at the end
thereof:
``Since court-martial forfeitures constitute a
loss of entitlement of the pay concerned, they take
precedence over all debts.''
M. The Discussion following R.C.M. 1107(d)(3) is
amended to read as follows:
``The convening authority's decision to postpone
service of a court-martial sentence to confinement
normally should be reflected in the action.''
N. The following Discussion is inserted after R.C.M.
1107(f)(2):
``For purposes of this rule, a record is
considered to have been forwarded for review when the
convening authority has either delivered it in person
or has entrusted it for delivery to a third party over
whom the convening authority exercises no lawful
control (e.g., the United States Postal Service).''
O. The following Discussion is inserted after R.C.M.
1113(d)(2)(A)(iii):
``The convening authority's decision to postpone
service of a court-martial sentence to confinement
normally should be reflected in the action.''
P. The Discussion following R.C.M. 1201(b)(1) is
amended to read as follows:
``A case forwarded to a Court of Military Review
under this subsection is subject to review by the Court
of Military Appeals upon petition by the accused under
Article 67(a)(3) or when certified by the Judge
Advocate General under Article 67(a)(2).''
Q. The Discussion following R.C.M. 1301(d)(1) is
amended to read as follows:
``The maximum penalty which can be adjudged in a
summary court-martial is confinement for 30 days,
forfeiture of two-thirds pay per month for one month,
and reduction to the lowest pay grade. See subsection
(2) below for additional limits on enlisted persons
serving in pay grades above the fourth enlisted pay
grade.
A summary court-martial may not suspend all or part
of a sentence, although the summary court-martial may
recommend to the convening au [[Page 26666]] thority
that all or part of a sentence be suspended. If a
sentence includes both reduction in grade and
forfeitures, the maximum forfeiture is calculated at
the reduced pay grade. See also R.C.M. 1003 concerning
other punishments which may be adjudged, the effects of
certain types of punishment, and combination of certain
types of punishment. The summary court-martial should
ascertain the effect of Article 58a in that armed
force.''
Changes to the Maximum Punishment Chart of the Manual
for Courts-Martial, United States, 1984.
Appendix 12, the Maximum Punishment Chart, is amended
by adding after Art. 134 (Seizure, destruction,
removal, or disposal of property to prevent) the
following:
``Self-injury without intent to avoid service In
time of war, or while receiving special pay under
37 U.S.C. 310 DD 5 yrs. Total
Other DD 2 yrs. Total''
[FR Doc. 95-12285
Filed 5-15-95; 2:56 pm]
Billing code 5000-04-P
Documents