[Federal Register: September 24, 2007 (Volume 72, Number 184)]
[Notices]
[Page 54246-54249]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24se07-25]
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DEPARTMENT OF DEFENSE
Office of the Secretary
[DOD-2007-OS-0104]
Manual for Courts-Martial; Proposed Amendments
AGENCY: Joint Service Committee on Military Justice (JSC), DoD.
ACTION: Notice of proposed amendments to the Manual for Courts-Martial,
United States (2005 ed.) and notice of public meeting.
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SUMMARY: The Department of Defense is considering recommending changes
to the Manual for Courts-Martial, United States (2005 ed.) (MCM). The
proposed changes constitute the 2007 annual review required by the MCM
and DoD Directive 5500.17, ``Role and Responsibilities of the Joint
Service Committee (JSC) on Military Justice,'' May 3, 2003. The
proposed changes concern the rules of procedure and evidence and the
punitive articles applicable in trials by courts-martial. These
proposed changes have not been coordinated within the Department of
Defense under DoD Directive 5500.1, ``Preparation, Processing and
Coordinating Legislation, Executive Orders, Proclamations, Views
Letters Testimony,'' June 15, 2007, and do not constitute the official
position of the Department of Defense, the Military Departments, or any
other Government agency.
This notice also sets forth the date, time and location for the
public meeting of the JSC to discuss the proposed changes.
This notice is provided in accordance with DoD Directive 5500.17,
``Role and Responsibilities of the Joint Service Committee (JSC) on
Military Justice,'' May 3, 2003. This notice is intended only to
improve the internal management of the Federal Government. It is not
intended to create any right or benefit, substantive or procedural,
enforceable at law by any party against the United States, its
agencies, its officers, or any person.
In accordance with paragraph III.B.4 of the Internal Organization
and Operating Procedures of the JSC, the committee also invites members
of the public to suggest changes to the Manual for Courts-Martial in
accordance with the described format.
DATES: Comments on the proposed changes must be received no later than
November 27, 2007 to be assured consideration by the JSC. A public
meeting will be held on October 19, 2007 at 10 a.m. in the 14th Floor
Conference Room, 1777 N. Kent St., Rosslyn, VA 22209-2194.
ADDRESSES: You may submit comments, identified by docket number and or
RIN number and title, by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 1160
Defense Pentagon, Washington, DC 20301-1160.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
Federal Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing on the Internet at http://regulations.gov
as they are received without change, including any personal identifiers
or contact information.
FOR FURTHER INFORMATION CONTACT: Lieutenant Colonel Thomas E. Wand,
Executive Secretary, Joint Service Committee on Military Justice, Air
Force Legal Operations Agency, Military Justice Division, 112 Luke
Avenue, Suite 343, Bolling Air Force Base, DC 20032, (202) 767-1539, e-
mail Thomas.wand@pentagon.af.mil.
SUPPLEMENTARY INFORMATION: The proposed amendments to the MCM are as
follows:
Section 1. Part II of the Manual for Courts-Martial, United States,
is amended as follows:
(a) R.C.M. 103 is amended by adding the following new subparagraph
(20) and re-designating the current subparagraph (20) as subparagraph
(21):
``(20) ``Writing'' includes printing and typewriting and
reproductions of visual symbols by handwriting, typewriting, printing,
photostating, photographing, magnetic impulse, mechanical or electronic
recording, or other form of data compilation.''
(b) R.C.M. 1103(b)(2)(B) is amended to read as follows:
``(B) Verbatim transcript required. Except as otherwise provided in
subsection (j) of this rule, the record of trial shall include a
verbatim transcript of all sessions except sessions closed for
deliberations and voting when:''
(c) R.C.M. 1103(e) is amended to read as follows:
``(e) Acquittal; courts-martial resulting in findings of not guilty
only by reason of lack of mental responsibility; termination prior to
findings; termination after findings. Notwithstanding subsections (b),
(c), and (d) of this rule, if proceedings resulted in an acquittal of
all charges and specifications, in a finding of not guilty only by
reason of lack of mental responsibility of all charges and
specifications, or if the proceedings were terminated by withdrawal,
mistrial, or dismissal before findings, or if the proceedings were
terminated after findings by approval of an
[[Page 54247]]
administrative discharge in lieu of court-martial, the record may
consist of the original charge sheet, a copy of the convening order and
amending orders (if any), and sufficient information to establish
jurisdiction over the accused and the offenses (if not shown on the
charge sheet). The convening authority or higher authority may
prescribe additional requirements.''
(d) R.C.M. 1103(g)(1)(A) is amended to read as follows:
``(A) In general. In general and special courts-martial which
require a verbatim transcript under subsections (b) or (c) of this rule
and are subject to a review by a Court of Criminal Appeals under
Article 66, the trial counsel shall cause to be prepared an original
record of trial.''
(e) R.C.M. 1103(j)(2) is amended to read as follows:
``(2) Preparation of written record. When the court-martial, or any
part of it, is recorded by videotape, audiotape, or similar material
under subsection (j)(1) of this rule, a written, as defined in R.C.M.
103, transcript or summary as required in subsection (b)(2)(A),
(b)(2)(B), (b)(2)(C), or (c) of this rule, as appropriate, shall be
prepared in accordance with this rule and R.C.M. 1104 before the record
is forwarded under R.C.M. 1104(e), unless military exigencies prevent
transcription.''
(f) R.C.M. 1104(a)(1) is amended to read as follows:
``(1) In general. A record is authenticated by the signature of a
person specified in this rule who thereby declares that the record
accurately reports the proceedings. An electronic record of trial may
be authenticated with the electronic signature of the military judge or
other authorized person. Service of an authenticated electronic copy of
the record of trial with a means to review the record of trial
satisfies the requirement of service under R.C.M. 1105(c) and 1305(d).
No person may be required to authenticate a record of trial if that
person is not satisfied that it accurately reports the proceedings.''
(g) R.C.M. 1106(d) is amended to read as follows:
``(d) Form and content of recommendation.
(1) The purpose of the recommendation of the staff judge advocate
or legal officer is to assist the convening authority to decide what
action to take on the sentence in the exercise of command prerogative.
The staff judge advocate or legal officer shall use the record of trial
in the preparation of the recommendation, and may also use the
personnel records of the accused or other matters in advising the
convening authority whether clemency is warranted.
(2) Form. The recommendation of the staff judge advocate or legal
officer shall be a concise written communication.
(3) Required contents. The staff judge advocate or legal advisor
shall provide the convening authority with a copy of the report of
results of trial, setting forth the findings, sentence, and confinement
credit to be applied, a copy or summary of the pretrial agreement, if
any, any recommendation for clemency by the sentencing authority, made
in conjunction with the announced sentence, and the staff judge
advocate's concise recommendation.''
(h) R.C.M. 1111 is amended by inserting the following sentence at
the end of the rule:
``Forwarding of an authenticated electronic copy of the record of
trial satisfies the requirements under this rule.''
(i) R.C.M. 1113 is amended by adding the following new subparagraph
(d) and re-designating the current subparagraph (d) as subparagraph
(e):
``(d) Self-executing punishments. Under regulations prescribed by
the Secretary concerned, a dishonorable or bad conduct discharge that
has been approved by an appropriate convening authority may be self-
executing after final judgment at such time as:
(1) The accused has received a sentence of no confinement or has
completed all confinement;
(2) The accused has been placed on excess or appellate leave; and,
(3) The appropriate official has certified that the accused's case
is final. Upon completion of the certification, the official shall
forward the certification to the accused's personnel office for
preparation of a final discharge order and certificate.''
(j) R.C.M. 1114(a) is amended by inserting the following as
subsection (a)(4):
``(4) Self-executing final orders. An order promulgating a self-
executing dishonorable or bad conduct discharge need not be issued. The
original action by a convening authority approving a discharge and
certification by the appropriate official that the case is final may be
forwarded to the accused's personnel office for preparation of a
discharge order and certificate.''
(k) R.C.M. 1305(b) is amended by changing the first sentence to
read as follows:
``(b) Contents. The summary court-martial shall prepare a written
record of trial, which shall include:''
(l) R.C.M. 1305(c) is amended to read as follows:
``(c) Authentication. The summary court-martial shall authenticate
the record by signing the record of trial. An electronic record of
trial may be authenticated with the electronic signature of the summary
court-martial.''
(m) R.C.M. 1305(d)(1)(A) is amended to read as follows''
``(A) Service. The summary court-martial shall cause a copy of the
record of trial to be served on the accused as soon as it is
authenticated. Service of an authenticated electronic copy of the
record of trial with a means to review the record of trial satisfies
the requirement of service under this rule.''
(n) R.C.M. 1306(b)(3) is amended to read as follows:
``(3) Signature. The action on the record of trial shall be signed
by the convening authority. The action on an electronic record of trial
may be signed with the electronic signature of the convening
authority.''
Section 2. Part IV of the Manual for Courts-Martial, United States,
is amended as follows:
(a) Paragraph 14, Article 90, Assaulting or willfully disobeying
superior commissioned officer, paragraph c.(2)(g) is amended to read as
follows:
``c.(2)(g) Time for compliance. When an order requires immediate
compliance, an accused's declared intent not to obey and the failure to
make any move to comply constitutes disobedience. Immediate compliance
is required for any order which does not explicitly or implicitly
indicate that delayed compliance is authorized or directed. If an order
requires performance in the future, an accused's present statement of
intention to disobey the order does not constitute disobedience of that
order, although carrying out that intention may.''
(b) Paragraph 44, Article 119, Manslaughter, paragraph b. is
amended to read as follows:
``b. Elements.
(1) Voluntary manslaughter.
(a) That a certain named or described person is dead;
(b) That the death resulted from the act or omission of the
accused;
(c) That the killing was unlawful; and
(d) That, at the time of the killing, the accused had the intent to
kill or inflict great bodily harm upon the person killed.
Note: Add the following if applicable.
(e) That the person killed was a child under the age of 16 years.
(2) Involuntary manslaughter.
(a) That a certain named or described person is dead;
[[Page 54248]]
(b) That the death resulted from the act or omission of the
accused;
(c) That the killing was unlawful; and
(d) That this act or omission of the accused constituted culpable
negligence, or occurred while the accused was perpetrating or
attempting to perpetrate an offense directly affecting the person other
than burglary, sodomy, rape, robbery, or aggravated arson.
Note: Add the following if applicable.
(e) That the person killed was a child under the age of 16 years.''
(c) Paragraph 44, Article 119, Manslaughter, paragraph c.(1)(c) is
added following paragraph c.(1)(b):
``(c) When committed upon a child under 16 years of age. The
maximum punishment is increased when voluntary manslaughter is
committed upon a child under 16 years of age. The accused's knowledge
that the child was under 16 years of age at the time of the offense is
not required for the increased maximum punishment.''
(d) Paragraph 44, Article 119, Manslaughter, paragraph c.(2)(c) is
added following paragraph c.(2)(b):
``(c) When committed upon a child under 16 years of age. The
maximum punishment is increased when involuntary manslaughter is
committed upon a child under 16 years of age. The accused's knowledge
that the child was under 16 years of age at the time of the offense is
not required for the increased maximum punishment.''
(e) Paragraph 44, Article 119, Manslaughter, paragraph e.(3) is
added following paragraph e.(2):
``(3) Voluntary manslaughter of a child under 16 years of age.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 20 years.''
(f) Paragraph 44, Article 119, Manslaughter, paragraph e.(4) is
added following paragraph e.(3):
``(4) Involuntary manslaughter of a child under 16 years of age.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 15 years.''
(g) Paragraph 44, Article 119, Manslaughter, paragraph f. is
amended to read as follows:
``f. Sample specifications.
(1) Voluntary manslaughter.
In that ----------------(personal jurisdiction data), did, (at/on
board--location) (subject matter jurisdiction data, if required), on or
about ----------------, willfully and unlawfully kill ----------------,
(a child under 16 years of age) by ----------------him/her (in) (on)
the ----------------with a ----------------.
(2) Involuntary manslaughter.
In that ----------------(personal jurisdiction data), did, (at/on
board location) (subject matter jurisdiction data, if required), on or
about ----------------, (by culpable negligence) (while (perpetrating)
(attempting to perpetrate) an offense directly affecting the person of
----------------, to wit: (maiming) (a battery) (----------------))
unlawfully kill ----------------(a child under 16 years of age) by ----
------------him/her (in) (on) the ----------------with a --------------
--.''
Section 3. These amendments shall take effect on [30 days after
signature].
(a) Nothing in these amendments shall be construed to make
punishable any act done or omitted prior to [30 days after signature]
that was not punishable when done or omitted.
(b) Nothing in these amendments shall be construed to invalidate
any nonjudicial punishment proceedings, restraint, investigation,
referral of charges, trial in which arraignment occurred, or other
action begun prior to [30 days after signature], 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.
THE WHITE HOUSE
Changes to the Discussion Accompanying the Manual for Courts Martial,
United States
(a) The following Discussion is added immediately after R.C.M.
103(20):
``The definition of `writing' includes letters, words, or numbers
set down by handwriting, typewriting, printing, photostating,
photographing, magnetic impulse, mechanical or electronic recording, or
any other form of data compilation. This section makes it clear that
computers and other modern reproduction systems are included in this
definition, and consistent with the definition of `writing' in Military
Rule of Evidence 1001. The definition is comprehensive, covering all
forms of writing or recording of words or word-substitutes.''
(b) The Discussion immediately following R.C.M. 1103(g)(1)(A) is
amended to read as follows:
``An original record of trial includes any record of the
proceedings recorded in a form that satisfies the definition of a
`writing' in R.C.M. 103. Any requirement to prepare a printed record of
trial pursuant to this rule, either in lieu of or in addition to a
record of trial recorded or compiled in some other format, including
electronic or digital formats, is subject to service regulation.''
Changes to Appendix 11, Forms of Sentences
(a) a. is amended to read as follows:
``a. Announcement of sentence
See R.C.M. 1007
In announcing the sentence, the president or, in cases tried by
military judge alone, the military judge should announce:
``(Name of accused), this court-martial sentences you .''
The sentence should now be announced following one of the forms
contained in b below, or any necessary modification or combination
thereof. Each of the forms of punishment prescribed in b are separate,
that is, the adjudging of one form of punishment is not contingent upon
any other punishment also being adjudged. The forms in b, however, my
be combined and modified so long as the punishments adjudged is not
forbidden by the code and does not exceed the maximum authorized by
this Manual (see R.C.M. 1003 and Part IV) in the particular case being
tried. In announcing a sentence consisting of combined punishments, the
president or military judge may, for example, state:
``To forfeit all pay and allowances, to be reduced to Private,
E-1, to be confined for one year, and to be dishonorably discharged
from the service.''
``To forfeit $350.00 pay per month for six months, to be
confined for six months, and to be discharged from the service with
a bad conduct discharge.''
``To forfeit all pay and allowances, to be confined for one year
and to be dismissed from the service.''
``To forfeit $250.00 pay per month for one month, and to perform
hard labor without confinement for one month.''''
Changes to Appendix 12, Maximum Punishment Chart
Appendix 12 is amended as follows:
(a) Amend Article 119 by inserting the following:
``Voluntary manslaughter of a child under the age of 16 years DD,
BCD 20 yrs. Total.
Involuntary manslaughter of a child under the age of 16 years DD,
BCD 15 yrs. Total''.
Changes to Appendix 22, Analysis of the Military Rules of Evidence
(a) Amend the Analysis accompanying Mil. R. Evid. 801(d)(1)(B) to
read as follows:
``Rule 801(d)(1)(B) makes admissible as substantive evidence on the
merits a statement consistent with the in-court testimony of the
witness and ``offered to
[[Page 54249]]
rebut an express or implied charge against the declarant of recent
fabrication or improper influence or motive.'' Unlike Rule
801(d)(1)(A), the earlier consistent statement need not have been made
under oath or at any type of proceeding. On its face, the Rule does not
require that the consistent statement offered have been made prior to
the time the improper influence or motive arose or prior to the alleged
recent fabrication. Notwithstanding this, the Supreme Court has read
such a requirement into the rule. Tome v. United States, 513 U.S. 150
(1995); see also United States v. Allison, 49 M.J. 54 (C.A.A.F. 1998).
The limitation does not, however, prevent admission of a consistent
statement made after an inconsistent statement but before the improper
influence or motive arose. United States v. Scholle, 553 F. 2d 1109
(8th Cir. 1977). Rule 801(d)(1)(B) provides a possible means to admit
evidence of fresh complaint in prosecution of sexual offenses. Although
limited to circumstances in which there is a charge, for example, of
recent fabrication, the Rule, when applicable, would permit not only
fact of fresh complaint, as is presently possible, but also the entire
portion of the consistent statement.''
Dated: September 18, 2007.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.
[FR Doc. E7-18787 Filed 9-21-07; 8:45 am]
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