[Federal Register Volume 62, Number 87 (Tuesday, May 6, 1997)]
[Notices]
[Pages 24640-24644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11601]
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DEPARTMENT OF DEFENSE
Office of the Secretary
Manual for Courts-Martial
AGENCY: Joint Service Committee on Military Justice (JSC).
ACTION: Notice of proposed amendments.
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SUMMARY: The Department of Defense is considering recommending changes
to the Manual for Courts-Martial, United States, (1995 ed.) [MCM]. The
proposed changes are the 1997 draft annual review required by the MCM
and DoD Directive 5500.17, ``Role and Responsibilities of the Joint
Service Committee (JSC) on Military Justice,'' May 8, 1996. With one
exception, the proposed changes concern the rules of procedure and
evidence applicable in trials by courts-martial. One proposed change
adds an offense to Part IV of the MCM. More specifically, the proposed
changes would: (1) Delete the requirement that judges be on ``active
duty'' at the time of trial; (2) permit the referral and trial of
additional charges at any time until entry of pleas; (3) set forth
rules for taking the testimony of children by remote closed-circuit
television; (4) clarify that ``hate motivation'' can be considered as
aggravation evidence in sentencing; (5) eliminate the punishment of
loss of numbers; (6) add the youth of the victim as an aggravating
factor in capital cases; (7) clarify the length of time during which
sentences may be suspended; (8) clarify the limitations on post-trial
contact with court members; (9) recognize a limited, qualified
psychotherapist-patient privilege; and (10) recognize the offense of
reckless endangerment.
The proposed changes have not been coordinated within the
Department of Defense under DoD Directive 5500.1, ``Preparation and
Processing of Legislation, Executive Orders, Proclamations, and Reports
and Comments Thereon,'' May 21, 1964, and do not constitute the
official position of the Department of Defense, the Military
Departments, or any other government agency.
This notice is provided in accordance with DoD Directive 5500.17,
``Role and Responsibilities of the Joint Service Committee (JSC) on
Military Justice,'' May 8, 1996. 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.
DATES: Comments on the proposed changes must be received no later than
July 20, 1997 for consideration by the JSC.
ADDRESSES: Comments on the proposed changes should be sent to LTC Paul
P. Holden, Jr., U.S. Army, Office of the Judge Advocate General,
Criminal Law Division, 2200 Army Pentagon, Washington, DC, 20310-2200.
FOR FURTHER INFORMATION CONTACT: LTC Paul P. Holden, Jr., US Army,
Office of the Judge Advocate General, Criminal Law Division, 2200 Army
Pentagon, Washington, DC, 20310-2200; 703-695-1891; FAX 703-693-5086.
Manual for Courts-Martial Proposed Amendments
The full text of the affected sections follows:
R.C.M. 502(c) is amended by deleting the words ``on active duty''
in the second line of the rule.
The analysis accompanying R.C.M. 502(c) is amended by adding the
following:
199__ Amendment: R.C.M. 502(c) was amended to delete the
requirement that military judges be ``on active duty'' to enable
Reserve Component judges to conduct trials during periods of inactive
duty for training (IDT/IADT) and inactive duty training travel (IATT).
The active duty requirement does not appear in Article 26, UCMJ which
prescribes the qualifications for military judges. It appears to be a
vestigial requirement from paragraph 4e of the 1951 and 1969 MCM.
Neither the current MCM nor its predecessors provide an explanation for
this additional requirement. It was deleted to enhance efficiency in
the military justice system.
R.C.M. 601(e)(2) is amended by deleting the words ``arraignment''
and substituting the words ``the entry of pleas'', in the second
sentence, and by deleting the words ``arraignment of the accused upon
charges'' and inserting the words ``the entry of pleas'' in the last
sentence.
The analysis accompanying R.C.M. 601(e)(2) is amended by adding the
following:
199__ Amendment: R.C.M. 601(e)(2) was amended to permit the adding
of charges until the entry of pleas in general and special courts-
martial without the consent of the accused, provided that all necessary
procedural requirements concerning the additional charges have been
complied with. Prior to this amendment, arraignment had always been the
point of demarcation, after which new charges could not be added
without the accused's consent. United States v. Davis, 11 USCMA 407, 29
C.M.R. 223 (1960).
[[Page 24641]]
In the Federal civilian system, arraignment was the preliminary
stage where the accused was informed of the indictment and pled to it,
thereby formulating the issues to be tried. Hamilton v. Alabama, 368
U.S. 52 (1961). In the military, arraignment symbolized formal notice
to the accused and often was followed closely by pleas. Id. However,
arraignment has become the event whereby the court-martial is formally
placed under the cognizance of the military judge, and the entry of
pleas is oftentimes now deferred. Precluding the addition of charges at
arraignment no longer serves a useful purpose.
This amendment extends the period of time during which charges can
be served on the accused at courts-martial to the taking of pleas.
Provided that procedural safeguards with respect to the additional
charges are accorded, (i.e. Article 32 hearing, or the 3/5 day
statutory waiting period, voir dire of the military judge, and
challenge of the qualifications of counsel), the original purpose of
the rule is fulfilled.
R.C.M. 804 is amended by redesignating the current subsection (c)
as subsection (d) and inserting the following as subsection (c)
(c) Absence for Limited Purpose of Child Testimony
(1) Election by accused. Following a determination by the military
judge in a child abuse case that remote testimony of a child is
appropriate pursuant to M.R.E. 611(d)(2), the accused may elect to
voluntarily absent himself from the courtroom in order to preclude the
use of procedures described in R.C.M. 914A.
(2) Procedure. The accused's absence will be conditional upon his
being able to view the witness' testimony from a remote location. A
two-way closed circuit television system will be used to transmit the
child's testimony from the courtroom to the accused's location. The
accused will also be provided contemporaneous audio communication with
his counsel, or recesses will be granted as necessary in order to allow
the accused to confer with counsel. The procedures described herein
will be employed unless the accused has made a knowing and affirmative
waiver of these procedures.
(3) Effect on accused's rights generally. Exercise by the accused
of the procedures under subsection (c)(2) will not otherwise affect the
accused's right to be present at the remainder of the trial in
accordance with this rule.
The analysis accompanying R.C.M. 804 is amended by adding the
following:
199__ Amendment: The amendment provides for two-way closed circuit
television to transmit the child's testimony from the courtroom to the
accused's location. The use of two-way television, to some degree, may
defeat the purpose of these alternative procedures, which is to avoid
trauma to the victim who must view his or her alleged abuser. In such
cases, the judge has discretion to direct one-way television
communication. The use of one-way television was approved by the
Supreme Court in Maryland v. Craig, 497 U.S. 836 (1990). This amendment
also gives the accused the election to absent himself from the
courtroom to prevent remote testimony. Such a provision gives the
accused a greater role in determining how this issue will be resolved.
R.C.M. 914A is created as follows:
Rule 914A. Use of Remote Live Testimony in Child Abuse Cases
(a) General procedures. A child witness in a case involving abuse
shall be allowed to testify out of the presence of the accused after
appropriate findings have been entered in accordance with M.R.E.
611(d)(2). The procedure used to take such testimony will be determined
by the military judge based upon the exigencies of the situation.
However, such testimony should normally be taken via a two-way closed
circuit television system. When a television system is employed, the
following procedures will be observed:
(1) The witness will testify from a closed location outside the
courtroom;
(2) The only persons present at the remote location will be the
witness, counsel for each side (not including an accused pro se),
equipment operators, and other persons, such as an attendant for the
child, whose presence is deemed necessary by the military judge;
(3) The military judge, the accused, members, the court reporter,
and all other persons viewing or participating in the trial will remain
in the courtroom;
(4) Sufficient monitors will be placed in the courtroom to allow
viewing of the testimony by both the accused and the fact finder;
(5) The voice of the military judge will be transmitted into the
remote location to allow control of the proceedings;
(6) The accused will be permitted audio contact with his counsel,
or the court will recess as necessary to provide the accused an
opportunity to confer with counsel.
(b) Prohibitions. The procedures described above will not be used
where the accused elects to absent himself from the courtroom pursuant
to R.C.M. 804(c).
The analysis accompanying R.C.M. 914A is as follows:
199__Amendment: This rule allows the military judge to determine
what procedure to use when taking testimony under Mil. R. Evid.
611(d)(2). It states that normally such testimony should be taken via a
two-way closed circuit television system. The rule further prescribes
the procedures to be used if a television system is employed. The use
of two-way television, to some degree, may defeat the purpose of these
alternative procedures, which is to avoid trauma to the victim who must
view his or her alleged abuser. In such cases, the judge has discretion
to direct one-way television communication. The use of one-way
television was approved by the Supreme Court in Maryland v. Craig, 497
U.S. 836 (1990). This amendment also gives the accused an election to
absent himself from the courtroom to prevent remote testimony. Such a
provision gives the accused a greater role in determining how this
issue will be resolved.
Military Rule of Evidence 611 is amended by adding the following
subsection:
(d) Remote examination of child witness.
(1) In a case involving abuse of a child under the age of 16, the
military judge shall, subject to the requirements of section (2) of
this rule, allow the child to testify from an area outside the
courtroom as prescribed in R.C.M. 914A.
(2) Remote examination will be used only where the military judge
makes a finding on the record, following expert testimony, that either:
(A) The child witness is likely to suffer substantial trauma if
made to testify in the presence of the accused; or
(B) The prosecution will be unable to elicit testimony from the
child witness in the presence of the accused.
(3) Remote examination of a child witness will not be utilized
where the accused elects to absent himself from the courtroom in
accordance with R.C.M. 804(c).
The analysis accompanying Mil. R. Evid. 611 is amended by adding
the following:
199__Amendment: This amendment to Mil. R. Evid. 611 gives
substantive guidance to military judges regarding the use of
alternative examination methods for child abuse victims. The use of
two-way television, to some degree, may defeat the purpose of these
alternative procedures; which is to avoid trauma to the victim who must
view his or her abuser. In such cases, the military judge has
discretion to
[[Page 24642]]
direct one-way communication. The use of one-way television was
approved by the Supreme Court in Maryland v. Craig, 497 U.S. 836
(1990). This amendment also gives the accused an election to absent
himself from the courtroom to prevent remote testimony. Such a
provision gives the accused a greater role in determining how this
issue will be resolved.
Rule for Courts-Martial 1001(b)(4), regarding the introduction of
evidence in aggravation during the presentencing procedure, is amended
by adding between the first and second sentences, the following:
Evidence in aggravation includes, but is not limited to, evidence
of financial, social, psychological, and medical impact on or cost to
any person or entity who was the victim of an offense committed by the
accused and evidence of significant adverse impact on the mission,
discipline, or efficiency of the command directly and immediately
resulting from the accused's offense. In addition, evidence in
aggravation may include evidence that the accused intentionally
selected any victim or any property as the object of the offense
because of the actual or perceived race, color, religion, national
origin, ethnicity, gender, disability, or sexual orientation of any
person.
The Discussion to R.C.M. 1001(b)(4) is amended by striking the
first paragraph thereof.
The analysis to R.C.M. 1001(b)(4) is amended by adding the
following:
199__Amendment: R.C.M. 1001(b)(4) was amended by elevating to the
Rule language that heretofore appeared in the Discussion to the Rule.
The Rule was further amended to recognize that evidence that the
offense was a ``hate crime'' may also be presented to the sentencing
authority. The additional ``hate crime'' language was derived in part
from Sec. 3A1.1 of the Federal Sentencing Guidelines, in which hate
crime motivation results in an upward adjustment in the level of the
offense for which the defendant is sentenced. Courts-martial sentences
are not awarded upon the basis of guidelines, such as the Federal
Sentencing Guidelines, but rather upon broad considerations of the
needs of the service and the accused and on the premise that each
sentence is individually tailored to the offender and offense. The
upward adjustment used in the Federal Sentencing Guidelines does not
directly translate to the court-martial presentencing procedure.
Therefore, in order to adapt this concept to the court-martial process,
this amendment was made to recognize that ``hate crime'' motivation is
admissible in the court-martial presentencing procedure. This amendment
also differs from the Federal Sentencing Guideline in that the
amendment does not specify the burden of proof required regarding
evidence of ``hate crime'' motivation. No burden of proof is
customarily specified regarding aggravating evidence admitted in the
presentencing procedure, with the notable exception of aggravating
factors under R.C.M. 1004 in capital cases.
R.C.M. 1003 is amended by deleting ``(4) Loss of numbers, lineal
position, or seniority. These punishments are authorized only in cases
of Navy, Marine Corps, and Coast Guard officers;'' by deleting the
``Discussion'' thereto, and by correcting subsequent numbered
paragraphs to reflect this deletion.
The analysis accompanying R.C.M. 1003 is amended by adding the
following:
199__Amendment: Although loss of numbers had the effect of lowering
precedence for some purposes, e.g., quarters priority, board and court
seniority, and actual date of promotion, loss of numbers did not affect
the officer's original position for purposes of consideration for
retention or promotion. Accordingly, this punishment was deleted
because of its negligible consequences and the misconception that it
was a meaningful punishment.
Appendix 11 of the MCM is amended by deleting ``Loss of numbers,
Etc., paragraphs (6) and (7) thereunder, by correcting subsequent
numbered paragraphs to reflect this deletion, and deleting the notation
at the end of Appendix 11 which states ``Numbers 6 and 7 apply only in
the Navy, Marine Corps, and Coast Guard.'' Rule for Courts-Martial
1004(c)(7) is amended by adding at the end thereof, the following
aggravating factor applicable in the case of a violation of Article
118(1): ``(K) The victim of the murder was 14 years of age or
younger.''
The Analysis to R.C.M. 1004 is amended by adding the following:
199__Amendment: R.C.M. 1004(c)(7)(K) was added to afford greater
protection to victims who are especially vulnerable due to their age.
R.C.M. 1108(d) is amended by adding after the second sentence the
following:
A period of suspension equal to the time served in confinement,
plus 2 years thereafter, or a period of suspension of 5 years from the
date of convening authority's action, whichever is greater, shall not
be deemed ``unreasonably long'' for a sentence adjudged by a general
court-martial. A period of suspension of 2 years from the date of
convening authority's action shall not be deemed ``unreasonably long''
for a sentence adjudged by a special court-martial. Notwithstanding the
foregoing, a period of suspension agreed to by the parties in a
pretrial agreement (R.C.M. 705) ordinarily shall not be deemed
``unreasonably long.''
The analysis accompanying R.C.M. 1108(d) is amended by adding the
following:
199__Amendment: This amendment clarifies the term ``not
unreasonably long'' by defining the maximum period of suspension which
is reasonable and lawful, thereby assisting convening authorities,
those who advise them, and courts as to the maximum length of time the
unexecuted portion of a sentence may be suspended. Thus, convening
authorities are guided in fixing a period of suspension which bears a
rational relationship to the severity of the sentence adjudged and
approved. This amendment does not address any other term of suspension
than time. Further, the amendment will most often be applied to
suspended, unexecuted confinement. A convening authority may, however,
in the exercise of discretionary powers, suspend all or any part of an
adjudged sentence, and may impose reasonable and lawful conditions upon
the accused as provision of that suspension. UCMJ, Arts. 60, 71, 10
U.S.C.A. Secs. 860, 871 (1994); United States v. Cowan, 34 M.J. 258
(C.M.A. 1992). The service Secretaries may further restrict the periods
of suspension.
Rule for Court-Martial 1012 is created as follows:
Rule 1012. Interviewing Members Following Adjournment
Except as provided in R.C.M. 1105(b)(4), following adjournment, no
attorney or any party to a court-martial shall themselves or through
any investigator or other person acting for them, interview, examine,
or question any member of a court-martial, after the member has been
excused from the court-martial, about any matter pertaining to the
court-martial, except at a session held under Article 39(a). Any such
session shall be limited to inquiring into whether extraneous
prejudicial information was improperly brought to the attention of the
members of the court-martial, whether any outside influence was
improperly brought to bear upon any member, or whether there was
unlawful command influence.
The analysis accompanying R.C.M. 1012 is created as follows:
199__Amendment: Prior to adjournment, contacts with court-
[[Page 24643]]
members are already adequately regulated by the military judge. This
rule was added to address post-trial contacts with members. It prevents
anyone from disturbing the sanctity of deliberations by questioning
members about matters associated with their duties as members. Such
questioning results in lessened public confidence in the court-martial
system and intrudes into a process that must remain secret in order to
grant court members the independence and discretion needed to arrive at
a verdict free from fear of public or private criticism or retribution.
See United States v. Turner, 42 M.J. 783 (N.M.Ct.Crim.App. 1995);
United States v. Thomas, 39 M.J. 626 (N.M.C.M.R. 1993). Also, this
amendment brings the military practice in line with most Federal
courts. See United States v. Hooshmand, 931 F.2d. 725, 736-37 (11th
Cir. 1991); United States v. Davila, 704 F.2d. 749, 753-54 (5th Cir.
1983).
Military Rule of Evidence 501(d) is amended to read as follows:
(d) Except as provided in Rule 513, information not otherwise
privileged does not become privileged on the basis that it was acquired
by a military or civilian health care provider acting in a professional
capacity.
Military Rules of Evidence 513 is created as follows
Rule 513. Psychotherapist-Patient Privilege
(a) General rule of privilege. A patient, as that term is defined
in this rule, has a privilege to refuse to disclose and to prevent any
other person from disclosing a confidential communication made by the
patient to a psychotherapist or an assistant to a psychotherapist, as
those terms are defined in this rule, if such communication was made
for the purpose of facilitating diagnosis or treatment of the patient's
mental or emotional condition.
(b) Definitions. As used in this rule:
(1) A ``patient'' is a person who consults with or is examined or
interviewed by a psychotherapist, but the term does not include a
person who, at the time of such consultation, examination or interview,
is subject to the Uniform Code of Military Justice under Article
2(a)(1), (2), (3), (7), (8), (9), or (10).
(2) A ``psychotherapist'' is a psychiatrist or psychologist who is
licensed or certified in any state, territory, the District of Columbia
or Puerto Rico to perform professional services as such and, if such
person is a member of, employed by, or serving under contract with the
armed forces, who holds credentials to provide such services from any
military health care facility, or is a person reasonably believed by
the patient to have such qualifications.
(3) An ``assistant to a psychotherapist'' is a person employed by
or assigned to assist a psychotherapist in providing professional
services, or is reasonably believed by the patient to be such.
(4) A communication is ``confidential'' if not intended to be
disclosed to third persons other than those to whom disclosure is in
furtherance of the rendition of professional services to the patient or
those reasonably necessary for the transmission of the communication.
(5) ``Evidence of a patient's records or communications'' is
testimony of a psychiatrist, psychologist, or assistant to the same, or
patient records that pertain to communications by a patient to a
psychiatrist, psychologist, or assistant to the same for the purposes
of diagnosis or treatment of the patient's mental or emotional
condition.
(c) Who may claim the privilege. The privilege may be claimed by
the patient or the guardian or conservator of the patient. The
psychotherapist or assistant to a psychotherapist who received the
communication may claim the privilege on behalf of the patient. The
authority of such a psychotherapist or assistant to so assert the
privilege is presumed in the absence of evidence to the contrary.
(d) Exceptions. There is no privilege under this rule under the
following circumstances:
(1) Death of patient. The patient is dead;
(2) Crime or fraud. If the communication clearly contemplated the
future commission of a fraud or crime or if the services of the
psychotherapist were sought or obtained to enable or aid anyone to
commit or plan to commit what the patient knew or reasonably should
have known to be a crime or fraud;
(3) Spouse abuse or child abuse or neglect. When the communication
is evidence of spouse abuse, or child abuse or neglect;
(4) Mandatory reports. When a federal law, state law, or military
regulation imposes a duty to report information contained in a
communication;
(5) Patient is dangerous to self or others. When a psychotherapist
or assistant to a psychotherapist has a reasonable belief that a
patient's mental or emotional condition makes the patient a danger to
any person, including the patient, or to the property of another
person;
(6) Military necessity. When necessary to ensure the safety and
security of military personnel, military dependents, military property,
classified information, or the accomplishment of a military mission.
(e) Procedure to determine admissibility of patient records or
communications:
(1) In any case in which the production or admission of records or
communications of a patient other than the accused is a matter in
dispute, a party may seek an interlocutory ruling by the military
judge. In order to obtain such a ruling, the party shall:
(A) file a written motion at least 5 days prior to entry of pleas
specifically describing the evidence and stating the purpose for which
it is sought or offered, or objected to, unless the military judge, for
good cause shown, requires a different time for filing or permits
filing during trial; and
(B) serve the motion on the opposing party, the military judge and,
if practicable, notify the patient or the patient's guardian or
representative of the filing of the motion and of the opportunity to be
heard as set forth in subparagraph (e)(2).
(2) Before ordering the production or admission of evidence of a
patient's records or communications, the military judge shall conduct a
hearing. Upon the motion of counsel for either party and upon good
cause shown, the military judge may order the hearing closed. At the
hearing, the parties may call witnesses, including the patient, and
offer other relevant evidence. The patient will be afforded a
reasonable opportunity to attend the hearing and be heard at the
patient's own expense unless the patient has been otherwise subpoenaed
or ordered to appear at the hearing. However, the proceedings will not
be unduly delayed for this purpose. In a case before a court-martial
composed of a military judge and members, the military judge shall
conduct the hearing outside the presence of the members.
(3) If the military judge determines on the basis of the hearing
described in subparagraph (2) of this subdivision that the evidence
that the party seeks to acquire, offer, or exclude is privileged,
irrelevant, or otherwise inadmissible, no further proceedings will be
conducted on the issue and the military judge shall not order the
production or admission of the evidence.
(4) If the military judge is unable to determine whether the
evidence is privileged or relevant, the military judge shall examine
the evidence or a proffer thereof in camera.
[[Page 24644]]
(A) If the military judge determines on the basis of the in camera
examination that the evidence is privileged, irrelevant, or otherwise
inadmissible, the military judge shall not order the production or
admission of the evidence.
(B) If the military judge determines that the evidence is relevant
and not privileged, such evidence, or pertinent portions thereof, shall
be produced and/or admitted in the trial to the extent specified by the
military judge.
(5) To prevent unnecessary disclosure of evidence of a patient's
records or communications, the military judge may issue protective
orders or may admit only portions of the evidence.
(6) The motion, related papers, and the record of the hearing shall
be sealed and shall remain under seal unless the military judge or an
appellate court orders otherwise.
The analysis to Mil. R. Evid. 501 is amended by adding:
``199 Amendment: The amendment of Mil. R. Evid 501(d), and the
related creation of Mil. R. Evid. 513, clarify the state of military
law after the Supreme Court decision in Jaffee v. Redmond, ______ U.S.
______ [116 S. Ct. 1923, 135 L.Ed. 2d. 337] (1996). Jaffee interpreted
Fed. R. Evid. 501, which refers federal courts to state law to
determine the extent of privileges in civil proceedings. Although Mil.
R. Evid. 501(d), as it existed at the time of the Jaffee decision,
precluded application of such a privilege in courts-martial, Rule
501(d) was amended to prevent misapplication of a privilege. The
language of Mil R. Evid 513 is based in part on Proposed Fed. R. Evid.
(not enacted) 504 and state rules of evidence. Mil. R. Evid. 513 was
created to establish a limited psychotherapist-patient privilege for
civilians not subject to the UCMJ and military retirees. In keeping
with the practice of American military law since its inception, there
is still no doctor-patient or psychotherapist-patient privilege for
members of the Armed Forces.
The analysis to Mil. R. Evid. 513 is created as follows:
``199 Amendment: Mil. R. Evid. 513 was created to establish a
limited psychotherapist-patient privilege for civilians not subject to
the UCMJ and military retirees. In keeping with the practice of
American military law since its inception, there is still no doctor-
patient or psychotherapist-patient privilege for members of the Armed
Forces. Rule 513, and the related amendment to Mil. R. Evid 501(d),
clarify the state of military law after the Supreme Court decision in
Jaffee v. Redmond, U.S. ______ [116 S. Ct. 1923, 135 L.Ed. 2d. 337]
(1996). Jaffee interpreted Fed. R. Evid. 501, which refers federal
courts to state law to determine the extent of privileges in civil
proceedings. Although Mil. R. Evid. 501(d), as it existed at the time
of the Jaffee decision, precluded application of such a privilege in
courts-martial, Rule 501(d) was amended to prevent misapplication of a
privilege. The language of Mil R. Evid 513 is based in part on Proposed
Fed. R. Evid. (not enacted) 504 and state rules of evidence.
The following new paragraph is inserted in MCM, part IV after paragraph
100:
100a. Article 134 (Reckless Endangerment)
a. Text. See paragraph 60.
b. Elements.
(1) That the accused did engage in conduct;
(2) That the conduct was wrongful and reckless or wanton;
(3) That the conduct was likely to produce death or grievous bodily
harm to another person;
(4) 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) In general. This offense is intended to prohibit and therefore
deter reckless or wanton conduct which wrongfully creates a substantial
risk of death or serious injury to others.
(2) Wrongfulness. Conduct is wrongful when it is without legal
justification or excuse.
(3) Recklessness. ``Reckless'' conduct is conduct that exhibits a
culpable disregard of foreseeable consequences to others from the act
or omission involved. The accused need not intentionally cause a
resulting harm or know that his conduct is substantially certain to
cause that result. The ultimate question is whether, under all the
circumstances, the accused's conduct was of that heedless nature which
made it actually or imminently dangerous to the rights or safety of
others.
(3) Wantoness. ``Wanton'' includes ``reckless,'' but may connote
willfulness, or a disregard of probable consequences, and thus describe
a more aggravated offense.
(4) Likely to produce. When the natural or probable consequence of
particular conduct would be death or grievous bodily harm, it may be
inferred that the conduct is ``likely'' to produce that result. See
paragraph 54c(4)(a)(ii).
(5) Grievous bodily harm. ``Grievous bodily harm'' means serious
bodily injury. It does not include minor injuries, such as a black eye
or a bloody nose, but does include fractured or dislocated bones, deep
cuts, torn members of the body, serious damage to internal organs, and
other serious bodily injuries.
(6) Death or injury not required. It is not necessary that death or
grievous bodily harm be actually inflicted to prove reckless
endangerment.
d. Lesser included offenses. None.
e. Maximum punishment. Bad-conduct discharge, forfeiture of all pay
and allowances, and confinement for 6 months.
f. Sample specification. In that ________________ (personal
jurisdiction data), did, (at/on board ____________ location) (subject-
matter jurisdiction data, if required), on or about ____________
19____, wrongfully and recklessly engage in conduct, to wit: (he/she)
(describe conduct) and that the accused's conduct was likely to cause
death or serious bodily harm to ____________.
The following paragraph is added to the analysis of the punitive
articles, A23, MCM:
100a. Article 134 (Reckless Endangerment).
c. Explanation. This paragraph is new and is based on United States
v. Woods, 28 M.J. 318 (C.M.A. 1989); see also Md. Ann. Code art. 27,
sect. 120. The definitions of ``reckless'' and ``wanton'' have been
taken from Article 111, drunken or reckless driving. The definition of
``likely to produce grievous bodily harm'' has been taken from Article
128, assault.
Dated: April 29, 1997.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 97-11601 Filed 5-5-97; 8:45 am]
BILLING CODE 5000-04-P
