[Federal Register: September 19, 2008 (Volume 73, Number 183)]
[Notices]
[Page 54387-54390]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19se08-39]
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DEPARTMENT OF DEFENSE
Office of the Secretary
[Docket ID: DoD-2008-OS-0112]
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 (2008 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 (2008 ed.) (MCM). The
proposed changes constitute the 2008 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
[[Page 54388]]
Coordinating Legislation, Executive Orders, Proclamations, Views
Letters and 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 18, 2008, to be assured consideration by the JSC. A public
meeting for comments will be held on October 30, 2008, 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
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 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://www.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. 1003 is amended to read as follows:
``(3) Fine. Any court-martial may adjudge a fine in lieu of or in
addition to forfeitures. In the case of a member of the armed forces,
summary and special courts-martial may not adjudge any fine or
combination of fine and forfeitures in excess of the total amount of
forfeitures that may be adjudged in that case. In the case of a person
serving with or accompanying an armed force in the field, a summary
court-martial may not adjudge a fine in excess of two-thirds of one
month of the highest rate of enlisted pay, and a special court-martial
may not adjudge a fine in excess of two-thirds of one year of the
highest rate of officer pay. In order to enforce collection, a fine may
be accompanied by a provision in the sentence that, in the event the
fine is not paid, the person fined shall, in addition to any period of
confinement adjudged, be further confined until a fixed period
considered an equivalent punishment to the fine has expired. The total
period of confinement so adjudged shall not exceed the jurisdictional
limitations of the court-martial.''
(b) R.C.M. 1003(c) is amended by renumbering subparagraph (4) as
subparagraph (5) and adding a new subparagraph (4) as follows:
``(4) Based on status as a person serving with or accompanying an
armed force in the field. In the case of a person serving with or
accompanying an armed force in the field, no court-martial may adjudge
forfeiture of pay and allowances, reduction in pay grade, hard labor
without confinement, or a punitive separation.''
(c) 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.
(4) Legal errors. The staff judge advocate or legal officer is not
required to examine the record for legal errors. However, when the
recommendation is prepared by a staff judge advocate, the staff judge
advocate shall state whether, in the staff judge advocate's opinion,
corrective action on the findings or sentence should be taken when an
allegation of legal error is raised in matters submitted under R.C.M.
1105 or when otherwise deemed appropriate by the staff judge advocate.
The response may consist of a statement of agreement or disagreement
with the matter raised by the accused. An analysis or rationale for the
staff judge advocate's statement, if any, concerning legal error is not
required.
(5) Optional matters. The recommendation of the staff judge
advocate or legal officer may include, in addition to matters included
under subsection (d)(3) and (4) of this rule, any additional matters
deemed appropriate by the staff judge advocate or legal officer. Such
matter may include matters outside the record.
(6) Effect of error. In case of error in the recommendation not
otherwise waived under subsection (f)(6) of this rule, appropriate
corrective action shall be taken by appellate authorities without
returning the case for further action by a convening authority.''
(d) R.C.M. 1113(d)(2)(A)(iii) is amended to read as follows:
``(iii) Periods during which the accused is in custody of civilian
or foreign authorities after the convening authority, pursuant to
Article 57a(b)(1), has postponed the service of a sentence to
confinement.''
(e) R.C.M. 1113(d)(2)(C) is amended by deleting the last two
sentences, and replacing them with the following:
``No member of the armed forces, or person serving with or
accompanying an armed force in the field, may be placed in confinement
in immediate association with enemy prisoners or with other foreign
nationals not subject to the code. The Secretary concerned may
prescribe regulations governing the place and conditions of
confinement.''
[[Page 54389]]
Section 2. Part IV of the Manual for Courts-Martial, United States,
is amended as follows:
(a) Paragraph 32, Article 108, Military Property of the United
States--sale, loss, damage, destruction, or wrongful disposition,
paragraph c.(1) is amended to read as follows:
``(1) Military Property. Military property is all property, real or
personal, owned, held, or used by one of the armed forces of the United
States. Military property is a term of art, and should not be confused
with government property. The terms are not interchangeable. While all
military property is government property, all government property is
not military property. An item of government property is not military
property unless the item in question meets the definition provided
above. It is immaterial whether the property sold, disposed, destroyed,
lost, or damaged had been issued to the accused, to someone else, or
even issued at all. If it is proved by either direct or circumstantial
evidence that items of individual issue were issued to the accused, it
may be inferred, depending on all the evidence, that the damage,
destruction, or loss proved was due to the neglect of the accused.
Retail merchandise of service exchange stores is not military property
under this article.''
(b) Paragraph 44, Article 119, Manslaughter, paragraph b.(2)(d) is
amended to read as follows:
``(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, rape of a child, aggravated sexual
assault, aggravated sexual assault of a child, aggravated sexual
contact, aggravated sexual abuse of a child, aggravated sexual contact
with a child, robbery, or aggravated arson.''
(c) Paragraph 46, Larceny and wrongful appropriation, the Note
following paragraph b.(1)(d) is amended to read as follows:
``[Note: If the property is alleged to be military property, as
defined in paragraph 46.c.(1)(h), add the following element]''
(d) Paragraph 46, Larceny and wrongful appropriation, is amended by
re-lettering paragraph 46.c.(1)(h) as paragraph 46.c.(1)(i), and adding
a new paragraph 46.c.(1)(h) as follows:
``(h) Military Property. Military property is all property, real or
personal, owned, held, or used by one of the armed forces of the United
States. Military property is a term of art, and should not be confused
with government property. The terms are not interchangeable. While all
military property is government property, all government property is
not military property. An item of government property is not military
property unless the item in question meets the definition provided
above. Retail merchandise of service exchange stores is not military
property under this article.''
(e) Paragraph 68b. is added as follows:
``68b. Article 134--(Child pornography)
a. Text. See paragraph 60.
b. Elements.
(1) Possessing, receiving, or viewing child pornography.
(a) That the accused knowingly and wrongfully possessed, received,
or viewed child pornography; and
(b) 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.
(2) Possessing child pornography with intent to distribute.
(a) That the accused knowingly and wrongfully possessed child
pornography;
(b) That the possession was with the intent to distribute; and
(c) 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.
(3) Distributing child pornography.
(a) That the accused knowingly and wrongfully distributed child
pornography to another; and
(b) 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.
(4) Producing child pornography.
(a) That the accused knowingly and wrongfully produced child
pornography; and
(b) 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.
c. Explanation.
(1) It is not a defense to any offense under this paragraph that
the minor depicted was not an actual person or did not actually exist.
(2) An accused may not be convicted of possessing, receiving,
viewing, distributing, or producing child pornography, if he was not
aware of the contraband nature of the visual depictions. Awareness may
be inferred from circumstantial evidence such as the name of a computer
file.
(3) ``Child Pornography'' means any visual depiction of a minor, or
what appears to be a minor, engaging in sexually explicit conduct.
(4) ``Distributing'' means delivering to the actual or constructive
possession of another.
(5) ``Minor'' means any person under the age of 18 years.
(6) ``Possessing'' means exercising control of something.
Possession may be direct physical custody like holding an item in one's
hand, or it may be constructive, as in the case of a person who hides
something in a locker or a car to which that person may return to
retrieve it. Possession must be knowing and conscious. Possession
inherently includes the power or authority to preclude control by
others. It is possible for more than one person to possess an item
simultaneously, as when several people share control over an item.
(7) ``Producing'' means creating or manufacturing. As used in this
paragraph, it refers to making child pornography that did not
previously exist. It does not include reproducing or copying.
(8) ``Sexually explicit conduct'' means actual or simulated:
(a) sexual intercourse or sodomy, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between persons of the
same or opposite sex;
(b) bestiality;
(c) masturbation;
(d) sadistic or masochistic abuse; or
(e) lascivious exhibition of the genitals or pubic area of any
person.
(9) ``Visual depiction'' includes undeveloped film and videotape,
and data stored on a computer disk or by electronic means which is
capable of conversion into a visual image, and also includes any
photograph, film, video, picture, digital image or picture, or computer
image or picture, whether made or produced by electronic, mechanical,
or other means.
(10) Affirmative defenses.
(a) It shall be an affirmative defense to a charge of possessing
child pornography that the accused promptly and in good faith, and
without retaining or allowing any person, other than a law enforcement
agency, to access any such visual depiction:
(i) Took reasonable steps to destroy each such visual depiction; or
(ii) reported the matter to a law enforcement agency and afforded
that
[[Page 54390]]
agency access to each such visual depiction.
(b) It shall be an affirmative defense to any offense under this
paragraph that all of the persons engaging in sexually explicit conduct
in a visual depiction were in fact persons at least 18 years old.
(11) On motion of the government, in any prosecution under this
paragraph, except for good cause shown, the name, address, social
security number, or other nonphysical identifying information, other
than the age or approximate age, of any minor who is depicted in any
child pornography or visual depiction or copy thereof shall not be
admissible and may be redacted from any otherwise admissible evidence,
and the panel shall be instructed, upon request of the Government, that
it can draw no inference from the absence of such evidence.
d. Lesser included offenses.
(1) Possessing, receiving, or viewing child pornography
Article 80--attempts.
(2) Possessing child pornography with intent to distribute
Article 80--attempts.
Article 134--possessing child pornography.
(3) Distributing child pornography
Article 80--attempts.
Article 134--possessing child pornography.
Article 134--possessing child pornography with intent to
distribute.
(4) Producing child pornography
Article 80--attempts.
Article 134--possessing child pornography.
Article 134--possessing child pornography with intent to
distribute.
e. Maximum punishment.
(1) Possessing, receiving, or viewing child pornography.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
(2) Possessing child pornography with intent to distribute.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 15 years.
(3) Distributing child pornography. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement for 20 years.
(4) Producing child pornography. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 30 years.
f. Sample specification.
Possessing, receiving, viewing, possessing with intent to
distribute, distributing or producing child pornography.
In that -------- (personal jurisdiction data), did, at --------, on
or about -------- knowingly and wrongfully
(possess)(receive)(view)(distribute) (produce) child pornography, to
wit: A (photograph)(video)(film)(picture)(digital image)(computer
image) of a minor, or what appears to be a minor, engaging in sexually
explicit conduct (, with intent to distribute the said child
pornography).''
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) Paragraph (4) of the Discussion immediately after R.C.M. 202(a)
is amended to read as follows:
``(4) Limitations on jurisdiction over civilians. Court-martial
jurisdiction over civilians under the code is limited by judicial
decisions. The exercise of jurisdiction under Article 2(a)(11) in peace
time has been held unconstitutional by the Supreme Court of the United
States. Before initiating court-martial proceedings against a civilian,
relevant statutes, decisions, service regulations, and policy memoranda
should be carefully examined.''
(b) The first paragraph of the Discussion following R.C.M.
1003(b)(3) is amended to read as follows:
A fine is in the nature of a judgment and, when ordered
executed, makes the accused immediately liable to the United States
for the entire amount of money specified in the sentence. A fine
normally should not be adjudged against a member of the armed forces
unless the accused was unjustly enriched as a result of the offense
of which convicted. In the case of a civilian subject to military
law, a fine, rather than a forfeiture, is the proper monetary
penalty to be adjudged, regardless of whether unjust enrichment is
present.
Changes to Appendix 21, Analysis of Rules for Courts-Martial
(a) Add the following to the Analysis accompanying R.C.M. 1106(d):
``200-- Amendment: Subsection (d) is restated in its entirety to
clarify that subsections (d)(4), (d)(5) and (d)(6) were not intended to
be eliminated by the 2008 Amendment.
2008 Amendment: Subsections (d)(1) and (d)(3) were modified to
simplify the requirements of the staff judge advocate's or legal
officer's recommendation.''
Changes to Appendix 23, Analysis of Punitive Articles
(a) Add the following to the Analysis accompanying Paragraph 44,
Article 119--Manslaughter:
``b. Elements.
200-- Amendment: The 2008 Amendment inadvertently omitted the
change to this paragraph in the 2007 Amendment. Paragraph (2)(d) of the
elements is corrected to restore the 2007 Amendment.
2008 Amendment: Notes were included to add an element if the person
killed was a child under the age of 16 years.
e. Maximum punishment.
2008 Amendment: The maximum authorized confinement for voluntary
manslaughter was increased from 15 years to 20 years when the person
killed was a child under the age of 16 years. The maximum authorized
confinement for involuntary manslaughter was increased from 10 years to
15 years when the person killed was a child under the age of 16
years.''
September 15, 2008.
Morgan Frazier,
Alternate OSD Federal Register, Liaison Officer, Department of Defense.
[FR Doc. E8-21965 Filed 9-18-08; 8:45 am]
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