[Federal Register Volume 63, Number 105 (Tuesday, June 2, 1998)]
[Presidential Documents]
[Pages 30065-30095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14688]
[[Page 30063]]
_______________________________________________________________________
Part V
The President
_______________________________________________________________________
Executive Order 13086--1998 Amendments to the Manual for Courts-
Martial, United States
Executive Order 13087--Further Amendment to Executive Order 11478,
Equal Employment Opportunity in the Federal Government
Presidential Documents
Federal Register / Vol. 63, No. 105 / Tuesday, June 2, 1998 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 30065]]
Executive Order 13086 of May 27, 1998
1998 Amendments to the Manual for Courts-Martial,
United States
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,
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,
Executive Order No. 12936, and Executive Order No.
12960, it is hereby ordered as follows:
Section 1. Part II of the Manual for Courts-Martial,
United States, is amended as follows:
a. R.C.M. 305(g) through 305(k) are amended to read as
follows:
``(g) Who may direct release from confinement. Any
commander of a prisoner, an officer appointed under
regulations of the Secretary concerned to conduct the
review under subsections (i) and/or (j) of this rule
or, once charges have been referred, a military judge
detailed to the court-martial to which the charges
against the accused have been referred, may direct
release from pretrial confinement. For the purposes of
this subsection, ``any commander'' includes the
immediate or higher commander of the prisoner and the
commander of the installation on which the confinement
facility is located.
(h) Notification and action by commander.
(1) Report. Unless the commander of the prisoner
ordered the pretrial confinement, the commissioned,
warrant, noncommissioned, or petty officer into whose
charge the prisoner was committed shall, within 24
hours after that commitment, cause a report to be made
to the commander that shall contain the name of the
prisoner, the offenses charged against the prisoner,
and the name of the person who ordered or authorized
confinement.
(2) Action by commander.
(A) Decision. Not later than 72 hours after the
commander's ordering of a prisoner into pretrial
confinement or, after receipt of a report that a member
of the commander's unit or organization has been
confined, whichever situation is applicable, the
commander shall decide whether pretrial confinement
will continue. A commander's compliance with this
subsection may also satisfy the 48-hour probable cause
determination of subsection R.C.M. 305(i)(1) below,
provided the commander is a neutral and detached
officer and acts within 48 hours of the imposition of
confinement under military control. Nothing in
subsections R.C.M. 305(d), R.C.M. 305(i)(1), or this
subsection prevents a neutral and detached commander
from completing the 48-hour probable cause
determination and the 72-hour commander's decision
immediately after an accused is ordered into pretrial
confinement.
(B) Requirements for confinement. The commander
shall direct the prisoner's release from pretrial
confinement unless the commander believes upon probable
cause, that is, upon reasonable grounds, that:
(i) An offense triable by a court-martial has
been committed;
(ii) The prisoner committed it; and
[[Page 30066]]
(iii) Confinement is necessary because it is
foreseeable that:
(a) The prisoner will not appear at trial,
pretrial hearing, or investigation, or
(b) The prisoner will engage in serious
criminal misconduct; and
(iv) Less severe forms of restraint are
inadequate.
Serious criminal misconduct includes
intimidation of witnesses or other obstruction of
justice, serious injury to others, or other offenses
that pose a serious threat to the safety of the
community or to the effectiveness, morale, discipline,
readiness, or safety of the command, or to the national
security of the United States. As used in this rule,
``national security'' means the national defense and
foreign relations of the United States and specifically
includes: military or defense advantage over any
foreign nation or group of nations; a favorable foreign
relations position; or a defense posture capable of
successfully resisting hostile or destructive action
from within or without, overt or covert.
(C) 72-hour memorandum. If continued pretrial
confinement is approved, the commander shall prepare a
written memorandum that states the reasons for the
conclusion that the requirements for confinement in
subsection (h)(2)(B) of this rule have been met. This
memorandum may include hearsay and may incorporate by
reference other documents, such as witness statements,
investigative reports, or official records. This
memorandum shall be forwarded to the 7-day reviewing
officer under subsection (i)(2) of this rule. If such a
memorandum was prepared by the commander before
ordering confinement, a second memorandum need not be
prepared; however, additional information may be added
to the memorandum at any time.
(i) Procedures for review of pretrial confinement.
(1) 48-hour probable cause determination. Review
of the adequacy of probable cause to continue pretrial
confinement shall be made by a neutral and detached
officer within 48 hours of imposition of confinement
under military control. If the prisoner is apprehended
by civilian authorities and remains in civilian custody
at the request of military authorities, reasonable
efforts will be made to bring the prisoner under
military control in a timely fashion.
(2) 7-day review of pretrial confinement. Within
7 days of the imposition of confinement, a neutral and
detached officer appointed in accordance with
regulations prescribed by the Secretary concerned shall
review the probable cause determination and necessity
for continued pretrial confinement. In calculating the
number of days of confinement for purposes of this
rule, the initial date of confinement under military
control shall count as one day and the date of the
review shall also count as one day.
(A) Nature of the 7-day review.
(i) Matters considered. The review under this
subsection shall include a review of the memorandum
submitted by the prisoner's commander under subsection
(h)(2)(C) of this rule. Additional written matters may
be considered, including any submitted by the accused.
The prisoner and the prisoner's counsel, if any, shall
be allowed to appear before the 7-day reviewing officer
and make a statement, if practicable. A representative
of the command may also appear before the reviewing
officer to make a statement.
(ii) Rules of evidence. Except for Mil. R.
Evid., Section V (Privileges) and Mil. R. Evid. 302 and
305, the Military Rules of Evidence shall not apply to
the matters considered.
(iii) Standard of proof. The requirements for
confinement under subsection (h)(2)(B) of this rule
must be proved by a preponderance of the evidence.
[[Page 30067]]
(B) Extension of time limit. The 7-day
reviewing officer may, for good cause, extend the time
limit for completion of the review to 10 days after the
imposition of pretrial confinement.
(C) Action by 7-day reviewing officer. Upon
completion of review, the reviewing officer shall
approve continued confinement or order immediate
release.
(D) Memorandum. The 7-day reviewing officer's
conclusions, including the factual findings on which
they are based, shall be set forth in a written
memorandum. A copy of the memorandum and of all
documents considered by the 7-day reviewing officer
shall be maintained in accordance with regulations
prescribed by the Secretary concerned and provided to
the accused or the Government on request.
(E) Reconsideration of approval of continued
confinement. The 7-day reviewing officer shall upon
request, and after notice to the parties, reconsider
the decision to confine the prisoner based upon any
significant information not previously considered.
(j) Review by military judge. Once the charges for
which the accused has been confined are referred to
trial, the military judge shall review the propriety of
the pretrial confinement upon motion for appropriate
relief.
(1) Release. The military judge shall order
release from pretrial confinement only if:
(A) The 7-day reviewing officer's decision was
an abuse of discretion, and there is not sufficient
information presented to the military judge justifying
continuation of pretrial confinement under subsection
(h)(2)(B) of this rule;
(B) Information not presented to the 7-day
reviewing officer establishes that the prisoner should
be released under subsection (h)(2)(B) of this rule; or
(C) The provisions of subsection (i)(1) or (2)
of this rule have not been complied with and
information presented to the military judge does not
establish sufficient grounds for continued confinement
under subsection (h)(2)(B) of this rule.
(2) Credit. The military judge shall order
administrative credit under subsection (k) of this rule
for any pretrial confinement served as a result of an
abuse of discretion or failure to comply with the
provisions of subsections (f), (h), or (i) of this
rule.
(k) Remedy. The remedy for noncompliance with
subsections (f), (h), (i), or (j) of this rule shall be
an administrative credit against the sentence adjudged
for any confinement served as the result of such
noncompliance. Such credit shall be computed at the
rate of 1 day credit for each day of confinement served
as a result of such noncompliance. The military judge
may order additional credit for each day of pretrial
confinement that involves an abuse of discretion or
unusually harsh circumstances. This credit is to be
applied in addition to any other credit to which the
accused may be entitled as a result of pretrial
confinement served. This credit shall be applied first
against any confinement adjudged. If no confinement is
adjudged, or if the confinement adjudged is
insufficient to offset all the credit to which the
accused is entitled, the credit shall be applied
against adjudged hard labor without confinement,
restriction, fine, and forfeiture of pay, in that
order, using the conversion formula under R.C.M.
1003(b)(6) and (7). For purposes of this subsection, 1
day of confinement shall be equal to 1 day of total
forfeitures or a like amount of fine. The credit shall
not be applied against any other form of punishment.''
[[Page 30068]]
b. R.C.M. 405(e) is amended to read as follows:
``(e) Scope of investigation. The investigating
officer shall inquire into the truth and form of the
charges, and such other matters as may be necessary to
make a recommendation as to the disposition of the
charges. If evidence adduced during the investigation
indicates that the accused committed an uncharged
offense, the investigating officer may investigate the
subject matter of such offense and make a
recommendation as to its disposition, without the
accused first having been charged with the offense. The
accused's rights under subsection (f) are the same with
regard to investigation of both charged and uncharged
offenses.''
c. R.C.M. 706(c)(2)(D) is amended to read as follows:
``(D) Is the accused presently suffering from a
mental disease or defect rendering the accused unable
to understand the nature of the proceedings against the
accused or to conduct or cooperate intelligently in the
defense of the case?''
d. R.C.M. 707(b)(3) is amended by adding subsection (E)
which reads as follows:
``(E) Commitment of the incompetent accused. If
the accused is committed to the custody of the Attorney
General for hospitalization as provided in R.C.M.
909(f), all periods of such commitment shall be
excluded when determining whether the period in
subsection (a) of this rule has run. If, at the end of
the period of commitment, the accused is returned to
the custody of the general court-martial convening
authority, a new 120-day time period under this rule
shall begin on the date of such return to custody.''
e. R.C.M. 707(c) is amended to read as follows:
``(c) Excludable delay. All periods of time during
which appellate courts have issued stays in the
proceedings, or the accused is hospitalized due to
incompetence, or is otherwise in the custody of the
Attorney General, shall be excluded when determining
whether the period in subsection (a) of this rule has
run. All other pretrial delays approved by a military
judge or the convening authority shall be similarly
excluded.''
f. R.C.M. 809(b)(1) is amended by deleting the last
sentence, which reads:
``In such cases, the regular proceedings shall be
suspended while the contempt is disposed of.''
g. R.C.M. 809(c) is amended to read as follows:
``(c) Procedure. The military judge shall in all
cases determine whether to punish for contempt and, if
so, what the punishment shall be. The military judge
shall also determine when during the court-martial the
contempt proceedings shall be conducted; however, if
the court-martial is composed of members, the military
judge shall conduct the contempt proceedings outside
the members' presence. The military judge may punish
summarily under subsection (b)(1) only if the military
judge recites the facts for the record and states that
they were directly witnessed by the military judge in
the actual presence of the court-martial. Otherwise,
the provisions of subsection (b)(2) shall apply.''
h. R.C.M. 908(a) is amended to read as follows:
``(a) In general. In a trial by a court-martial
over which a military judge presides and in which a
punitive discharge may be adjudged, the United States
may appeal an order or ruling that terminates the
proceedings with respect to a charge or specification,
or excludes evidence that is substantial proof of a
fact material in the proceedings, or directs the
disclosure of classified information, or that imposes
sanctions for nondisclosure of classified information.
The United States may also appeal a refusal by the
military judge to issue a protective order sought by
the United States to prevent the disclosure of
classified information or to enforce such an order that
has previously been issued by the appropriate
authority. However, the United States may not appeal an
order or ruling that is, or amounts to, a finding of
not guilty with respect to the charge or
specification.''
[[Page 30069]]
i. R.C.M. 909 is amended to read as follows:
``(a) In general. No person may be brought to trial
by court-martial if that person is presently suffering
from a mental disease or defect rendering him or her
mentally incompetent to the extent that he or she is
unable to understand the nature of the proceedings
against them or to conduct or cooperate intelligently
in the defense of the case.
(b) Presumption of capacity. A person is presumed
to have the capacity to stand trial unless the contrary
is established.
(c) Determination before referral. If an inquiry
pursuant to R.C.M. 706 conducted before referral
concludes that an accused is suffering from a mental
disease or defect that renders him or her mentally
incompetent to stand trial, the convening authority
before whom the charges are pending for disposition may
disagree with the conclusion and take any action
authorized under R.C.M. 401, including referral of the
charges to trial. If that convening authority concurs
with the conclusion, he or she shall forward the
charges to the general court-martial convening
authority. If, upon receipt of the charges, the general
court-martial convening authority similarly concurs,
then he or she shall commit the accused to the custody
of the Attorney General. If the general court-martial
convening authority does not concur, that authority may
take any action that he or she deems appropriate in
accordance with R.C.M. 407, including referral of the
charges to trial.
(d) Determination after referral. After referral,
the military judge may conduct a hearing to determine
the mental capacity of the accused, either sua sponte
or upon request of either party. If an inquiry pursuant
to R.C.M. 706 conducted before or after referral
concludes that an accused is suffering from a mental
disease or defect that renders him or her mentally
incompetent to stand trial, the military judge shall
conduct a hearing to determine the mental capacity of
the accused. Any such hearing shall be conducted in
accordance with paragraph (e) of this rule.
(e) Incompetence determination hearing.
(1) Nature of issue. The mental capacity of the
accused is an interlocutory question of fact.
(2) Standard. Trial may proceed unless it is
established by a preponderance of the evidence that the
accused is presently suffering from a mental disease or
defect rendering him or her mentally incompetent to the
extent that he or she is unable to understand the
nature of the proceedings or to conduct or cooperate
intelligently in the defense of the case. In making
this determination, the military judge is not bound by
the rules of evidence except with respect to
privileges.
(3) If the military judge finds the accused is
incompetent to stand trial, the judge shall report this
finding to the general court-martial convening
authority, who shall commit the accused to the custody
of the Attorney General.
(f) Hospitalization of the accused. An accused who
is found incompetent to stand trial under this rule
shall be hospitalized by the Attorney General as
provided in section 4241(d) of title 18, United States
Code. If notified that the accused has recovered to
such an extent that he or she is able to understand the
nature of the proceedings and to conduct or cooperate
intelligently in the defense of the case, then the
general court-martial convening authority shall
promptly take custody of the accused. If, at the end of
the period of hospitalization, the accused's mental
condition has not so improved, action shall be taken in
accordance with section 4246 of title 18, United States
Code.
(g) Excludable delay. All periods of commitment
shall be excluded as provided by R.C.M. 707(c). The
120-day time period under R.C.M. 707 shall begin anew
on the date the general court-martial convening
authority takes custody of the accused at the end of
any period of commitment.''
[[Page 30070]]
j. R.C.M. 916(b) is amended to read as follows:
``(b) Burden of proof. Except for the defense of
lack of mental responsibility and the defense of
mistake of fact as to age as described in Part IV,
para. 45c.(2) in a prosecution for carnal knowledge,
the prosecution shall have the burden of proving beyond
a reasonable doubt that the defense did not exist. The
accused has the burden of proving the defense of lack
of mental responsibility by clear and convincing
evidence, and has the burden of proving mistake of fact
as to age in a carnal knowledge prosecution by a
preponderance of the evidence.''
k. R.C.M. 916(j) is amended to read as follows:
``(j) Ignorance or mistake of fact.
(1) Generally. Except as otherwise provided in
this subsection, it is a defense to an offense that the
accused held, as a result of ignorance or mistake, an
incorrect belief of the true circumstances such that,
if the circumstances were as the accused believed them,
the accused would not be guilty of the offense. If the
ignorance or mistake goes to an element requiring
premeditation, specific intent, willfulness, or
knowledge of a particular fact, the ignorance or
mistake need only have existed in the mind of the
accused. If the ignorance or mistake goes to any other
element requiring only general intent or knowledge, the
ignorance or mistake must have existed in the mind of
the accused and must have been reasonable under all the
circumstances. However, if the accused's knowledge or
intent is immaterial as to an element, then ignorance
or mistake is not a defense.
(2) Carnal knowledge. It is a defense to a
prosecution for carnal knowledge that, at the time of
the sexual intercourse, the person with whom the
accused had sexual intercourse was at least 12 years of
age, and the accused reasonably believed the person was
at least 16 years of age. The accused must prove this
defense by a preponderance of the evidence.''
l. R.C.M. 920(e)(5)(D) is amended to read as follows:
``(D) The burden of proof to establish the
guilt of the accused is upon the Government. [When the
issue of lack of mental responsibility is raised, add:
The burden of proving the defense of lack of mental
responsibility by clear and convincing evidence is upon
the accused. When the issue of mistake of fact as to
age in a carnal knowledge prosecution is raised, add:
The burden of proving the defense of mistake of fact as
to age in carnal knowledge by a preponderance of the
evidence is upon the accused.]''
m. R.C.M. 1005(e) is amended to read as follows:
``(e) Required Instructions. Instructions on
sentence shall include:
(1) A statement of the maximum authorized
punishment that may be adjudged and of the mandatory
minimum punishment, if any;
(2) A statement of the effect any sentence
announced including a punitive discharge and
confinement, or confinement in excess of six months,
will have on the accused's entitlement to pay and
allowances;
(3) A statement of the procedures for
deliberation and voting on the sentence set out in
R.C.M. 1006;
(4) A statement informing the members that they
are solely responsible for selecting an appropriate
sentence and may not rely on the possibility of any
mitigating action by the convening or higher authority;
and
(5) A statement that the members should consider
all matters in extenuation, mitigation, and
aggravation, whether introduced before or after
findings, and matters introduced under R.C.M.
1001(b)(1), (2), (3), and (5).''
n. The heading for R.C.M. 1101 is amended as follows:
``Rule 1101. Report of result of trial; post-trial
restraint; deferment of confinement, forfeitures and
reduction in grade; waiver of Article 58b forfeitures''
[[Page 30071]]
o. R.C.M. 1101(c) is amended as follows:
``(c) Deferment of confinement, forfeitures or
reduction in grade.
(1) In general. Deferment of a sentence to
confinement, forfeitures, or reduction in grade is a
postponement of the running of a sentence.
(2) Who may defer. The convening authority or, if
the accused is no longer in the convening authority's
jurisdiction, the officer exercising general court-
martial jurisdiction over the command to which the
accused is assigned, may, upon written application of
the accused at any time after the adjournment of the
court-martial, defer the accused's service of a
sentence to confinement, forfeitures, or reduction in
grade that has not been ordered executed.
(3) Action on deferment request. The authority
acting on the deferment request may, in that
authority's discretion, defer service of a sentence to
confinement, forfeitures, or reduction in grade. The
accused shall have the burden of showing that the
interests of the accused and the community in deferral
outweigh the community's interest in imposition of the
punishment on its effective date. Factors that the
authority acting on a deferment request may consider in
determining whether to grant the deferment request
include, where applicable: the probability of the
accused's flight; the probability of the accused's
commission of other offenses, intimidation of
witnesses, or interference with the administration of
justice; the nature of the offenses (including the
effect on the victim) of which the accused was
convicted; the sentence adjudged; the command's
immediate need for the accused; the effect of deferment
on good order and discipline in the command; the
accused's character, mental condition, family
situation, and service record. The decision of the
authority acting on the deferment request shall be
subject to judicial review only for abuse of
discretion. The action of the authority acting on the
deferment request shall be in writing and a copy shall
be provided to the accused.
(4) Orders. The action granting deferment shall
be reported in the convening authority's action under
R.C.M. 1107(f)(4)(E) and shall include the date of the
action on the request when it occurs prior to or
concurrently with the action. Action granting deferment
after the convening authority's action under R.C.M.
1107 shall be reported in orders under R.C.M. 1114 and
included in the record of trial.
(5) Restraint when deferment is granted. When
deferment of confinement is granted, no form of
restraint or other limitation on the accused's liberty
may be ordered as a substitute form of punishment. An
accused may, however, be restricted to specified limits
or conditions may be placed on the accused's liberty
during the period of deferment for any other proper
reason, including a ground for restraint under R.C.M.
304.
(6) End of deferment. Deferment of a sentence to
confinement, forfeitures, or reduction in grade ends
when:
(A) The convening authority takes action under
R.C.M. 1107, unless the convening authority specifies
in the action that service of confinement after the
action is deferred;
(B) The confinement, forfeitures, or reduction
in grade are suspended;
(C) The deferment expires by its own terms; or
(D) The deferment is otherwise rescinded in
accordance with subsection (c)(7) of this rule.
Deferment of confinement may not continue after the
conviction is final under R.C.M. 1209.
(7) Rescission of deferment.
(A) Who may rescind. The authority who granted
the deferment or, if the accused is no longer within
that authority's jurisdiction, the officer exercising
general court-martial jurisdiction over the command to
which the accused is assigned, may rescind the
deferment.
(B) Action. Deferment of confinement,
forfeitures, or reduction in grade may be rescinded
when additional information is presented to a proper
[[Page 30072]]
authority which, when considered with all other
information in the case, that authority finds, in that
authority's discretion, is grounds for denial of
deferment under subsection (c)(3) of this rule. The
accused shall promptly be informed of the basis for the
rescission and of the right to submit written matters
on the accused's behalf and to request that the
rescission be reconsidered. However, the accused may be
required to serve the sentence to confinement,
forfeitures, or reduction in grade pending this action.
(C) Execution. When deferment of confinement is
rescinded after the convening authority's action under
R.C.M. 1107, the confinement may be ordered executed.
However, no such order to rescind a deferment of
confinement may be issued within 7 days of notice of
the rescission of a deferment of confinement to the
accused under subsection (c)(7)(B) of this rule, to
afford the accused an opportunity to respond. The
authority rescinding the deferment may extend this
period for good cause shown. The accused shall be
credited with any confinement actually served during
this period.
(D) Orders. Rescission of a deferment before or
concurrently with the initial action in the case shall
be reported in the action under R.C.M. 1107(f)(4)(E),
which action shall include the dates of the granting of
the deferment and the rescission. Rescission of a
deferment of confinement after the convening
authority's action shall be reported in supplementary
orders in accordance with R.C.M. 1114 and shall state
whether the approved period of confinement is to be
executed or whether all or part of it is to be
suspended.''
p. R.C.M. 101 is amended by adding the following new
subparagraph (d):
``(d) Waiving forfeitures resulting from a sentence
to confinement to provide for dependent support.
(1) With respect to forfeiture of pay and
allowances resulting only by operation of law and not
adjudged by the court, the convening authority may
waive, for a period not to exceed six months, all or
part of the forfeitures for the purpose of providing
support to the accused's dependent(s). The convening
authority may waive and direct payment of any such
forfeitures when they become effective by operation of
Article 57(a).
(2) Factors that may be considered by the
convening authority in determining the amount of
forfeitures, if any, to be waived include, but are not
limited to, the length of the accused's confinement,
the number and age(s) of the accused's family members,
whether the accused requested waiver, any debts owed by
the accused, the ability of the accused's family
members to find employment, and the availability of
transitional compensation for abused dependents
permitted under 10 U.S.C. 1059.
(3) For the purposes of this Rule, a
``dependent'' means any person qualifying as a
``dependent'' under 37 U.S.C. 401.''
q. The following new rule is added after R.C.M. 1102:
``Rule 1102A. Post-trial hearing for person found not
guilty only by reason of lack of mental responsibility
(a) In general. The military judge shall conduct a
hearing not later than forty days following the finding
that an accused is not guilty only by reason of a lack
of mental responsibility.
(b) Psychiatric or psychological examination and
report. Prior to the hearing, the military judge or
convening authority shall order a psychiatric or
psychological examination of the accused, with the
resulting psychiatric or psychological report
transmitted to the military judge for use in the post-
trial hearing.
(c) Post-trial hearing.
(1) The accused shall be represented by defense
counsel and shall have the opportunity to testify,
present evidence, call witnesses on his or her behalf,
and to confront and cross-examine witnesses who appear
at the hearing.
[[Page 30073]]
(2) The military judge is not bound by the rules
of evidence except with respect to privileges.
(3) An accused found not guilty only by reason of
a lack of mental responsibility of an offense involving
bodily injury to another, or serious damage to the
property of another, or involving a substantial risk of
such injury or damage, has the burden of proving by
clear and convincing evidence that his or her release
would not create a substantial risk of bodily injury to
another person or serious damage to property of another
due to a present mental disease or defect. With respect
to any other offense, the accused has the burden of
such proof by a preponderance of the evidence.
(4) If, after the hearing, the military judge
finds the accused has satisfied the standard specified
in subsection (3) of this section, the military judge
shall inform the general court-martial convening
authority of this result and the accused shall be
released. If, however, the military judge finds after
the hearing that the accused has not satisfied the
standard specified in subsection (3) of this section,
then the military judge shall inform the general court-
martial convening authority of this result and that
authority may commit the accused to the custody of the
Attorney General.''
r. R.C.M. 1105(b) is amended to read as follows:
``(b) Matters that may be submitted.
(1) The accused may submit to the convening
authority any matters that may reasonably tend to
affect the convening authority's decision whether to
disapprove any findings of guilt or to approve the
sentence. The convening authority is only required to
consider written submissions.
(2) Submissions are not subject to the Military
Rules of Evidence and may include:
(A) Allegations of errors affecting the
legality of the findings or sentence;
(B) Portions or summaries of the record and
copies of documentary evidence offered or introduced at
trial;
(C) Matters in mitigation that were not
available for consideration at the court-martial; and
(D) Clemency recommendations by any member, the
military judge, or any other person. The defense may
ask any person for such a recommendation.''
s. R.C.M. 1107(b)(4) is amended to read as follows:
``(4) When proceedings resulted in a finding of
not guilty or not guilty only by reason of lack of
mental responsibility, or there was a ruling amounting
to a finding of not guilty. The convening authority
shall not take action disapproving a finding of not
guilty, a finding of not guilty only by reason of lack
of mental responsibility, or a ruling amounting to a
finding of not guilty. When an accused is found not
guilty only by reason of lack of mental responsibility,
the convening authority, however, shall commit the
accused to a suitable facility pending a hearing and
disposition in accordance with R.C.M. 1102A.''
t. The subheading for R.C.M. 1107(d)(3) is amended to
read as follows:
``(3) Deferring service of a sentence to
confinement.''
u. R.C.M. 1107(d)(3)(A) is amended to read as follows:
``(A) In a case in which a court-martial
sentences an accused referred to in subsection (B),
below, to confinement, the convening authority may
defer 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.''
v. R.C.M. 1109 is amended to read as follows:
``Rule 1109. Vacation of suspension of sentence
[[Page 30074]]
(a) In general. Suspension of execution of the
sentence of a court-martial may be vacated for
violation of the conditions of the suspension as
provided in this rule.
(b) Timeliness.
(1) Violation of conditions. Vacation shall be
based on a violation of the conditions of suspension
that occurs within the period of suspension.
(2) Vacation proceedings. Vacation proceedings
under this rule shall be completed within a reasonable
time.
(3) Order vacating the suspension. The order
vacating the suspension shall be issued before the
expiration of the period of suspension.
(4) Interruptions to the period of suspension.
Unauthorized absence of the probationer or the
commencement of proceedings under this rule to vacate
suspension interrupts the running of the period of
suspension.
(c) Confinement of probationer pending vacation
proceedings.
(1) In general. A probationer under a suspended
sentence to confinement may be confined pending action
under subsection (d)(2) of this rule, in accordance
with the procedures in this subsection.
(2) Who may order confinement. Any person who may
order pretrial restraint under R.C.M. 304(b) may order
confinement of a probationer under a suspended sentence
to confinement.
(3) Basis for confinement. A probationer under a
suspended sentence to confinement may be ordered into
confinement upon probable cause to believe the
probationer violated any conditions of the suspension.
(4) Review of confinement. Unless proceedings
under subsection (d)(1), (e), (f), or (g) of this rule
are completed within 7 days of imposition of
confinement of the probationer (not including any
delays requested by probationer), a preliminary hearing
shall be conducted by a neutral and detached officer
appointed in accordance with regulations of the
Secretary concerned.
(A) Rights of accused. Before the preliminary
hearing, the accused shall be notified in writing of:
(i) The time, place, and purpose of the
hearing, including the alleged violation(s) of the
conditions of suspension;
(ii) The right to be present at the hearing;
(iii) The right to be represented at the
hearing by civilian counsel provided by the probationer
or, upon request, by military counsel detailed for this
purpose; and
(iv) The opportunity to be heard, to present
witnesses who are reasonably available and other
evidence, and the right to confront and cross-examine
adverse witnesses unless the hearing officer determines
that this would subject these witnesses to risk or
harm. For purposes of this subsection, a witness is not
reasonably available if the witness requires
reimbursement by the United States for cost incurred in
appearing, cannot appear without unduly delaying the
proceedings or, if a military witness, cannot be
excused from other important duties.
(B) Rules of evidence. Except for Mil. R. Evid.
Section V (Privileges) and Mil. R. Evid. 302 and 305,
the Military Rules of Evidence shall not apply to
matters considered at the preliminary hearing under
this rule.
(C) Decision. The hearing officer shall
determine whether there is probable cause to believe
that the probationer violated the conditions of the
probationer's suspension. If the hearing officer
determines that probable cause is lacking, the hearing
officer shall issue a written order directing that the
probationer be released from confinement. If the
hearing officer determines that there is probable cause
to believe that the probationer violated the conditions
of suspension, the hearing officer shall set forth that
decision in a written memorandum, detailing therein the
evidence relied
[[Page 30075]]
upon and reasons for making the decision. The hearing
officer shall forward the original memorandum or
release order to the probationer's commander and
forward a copy to the probationer and the officer in
charge of the confinement facility.
(d) Vacation of suspended general court-martial
sentence.
(1) Action by officer having special court-
martial jurisdiction over probationer.
(A) In general. Before vacation of the
suspension of any general court-martial sentence, the
officer having special court-martial jurisdiction over
the probationer shall personally hold a hearing on the
alleged violation of the conditions of suspension. If
there is no officer having special court-martial
jurisdiction over the probationer who is subordinate to
the officer having general court-martial jurisdiction
over the probationer, the officer exercising general
court-martial jurisdiction over the probationer shall
personally hold a hearing under subsection (d)(1) of
this rule. In such cases, subsection (d)(1)(D) of this
rule shall not apply.
(B) Notice to probationer. Before the hearing,
the officer conducting the hearing shall cause the
probationer to be notified in writing of:
(i) The time, place, and purpose of the
hearing;
(ii) The right to be present at the hearing;
(iii) The alleged violation(s) of the
conditions of suspension and the evidence expected to
be relied on;
(iv) The right to be represented at the
hearing by civilian counsel provided by the probationer
or, upon request, by military counsel detailed for this
purpose; and
(v) The opportunity to be heard, to present
witnesses and other evidence, and the right to confront
and cross-examine adverse witnesses, unless the hearing
officer determines that there is good cause for not
allowing confrontation and cross-examination.
(C) Hearing. The procedure for the vacation
hearing shall follow that prescribed in R.C.M. 405(g),
(h)(1), and (i).
(D) Record and recommendation. The officer who
conducts the vacation proceeding shall make a
summarized record of the proceeding and forward the
record and that officer's written recommendation
concerning vacation to the officer exercising general
court-martial jurisdiction over the probationer.
(E) Release from confinement. If the special
court-martial convening authority finds there is not
probable cause to believe that the probationer violated
the conditions of the suspension, the special court-
martial convening authority shall order the release of
the probationer from confinement ordered under
subsection (c) of this rule. The special court-martial
convening authority shall, in any event, forward the
record and recommendation under subsection (d)(1)(D) of
this rule.
(2) Action by officer exercising general court-
martial jurisdiction over probationer.
(A) In general. The officer exercising general
court-martial jurisdiction over the probationer shall
review the record produced by and the recommendation of
the officer exercising special court-martial
jurisdiction over the probationer, decide whether the
probationer violated a condition of suspension, and, if
so, decide whether to vacate the suspended sentence. If
the officer exercising general court-martial
jurisdiction decides to vacate the suspended sentence,
that officer shall prepare a written statement of the
evidence relied on and the reasons for vacating the
suspended sentence.
(B) Execution. Any unexecuted part of a
suspended sentence ordered vacated under this
subsection shall, subject to R.C.M. 1113(c), be ordered
executed.
[[Page 30076]]
(e) Vacation of a suspended special court-martial
sentence wherein a bad-conduct discharge was not
adjudged.
(1) In general. Before vacating the suspension of
a special court-martial punishment that does not
include a bad-conduct discharge, the special court-
martial convening authority for the command in which
the probationer is serving or assigned shall cause a
hearing to be held on the alleged violation(s) of the
conditions of suspension.
(2) Notice to probationer. The person conducting
the hearing shall notify the probationer, in writing,
before the hearing of the rights specified in
subsection (d)(1)(B) of this rule.
(3) Hearing. The procedure for the vacation
hearing shall follow that prescribed in R.C.M. 405(g),
(h)(1), and (i).
(4) Authority to vacate suspension. The special
court-martial convening authority for the command in
which the probationer is serving or assigned shall have
the authority to vacate any punishment that the officer
has the authority to order executed.
(5) Record and recommendation. If the hearing is
not held by the commander with authority to vacate the
suspension, the person who conducts the hearing shall
make a summarized record of the hearing and forward the
record and that officer's written recommendation
concerning vacation to the commander with authority to
vacate the suspension.
(6) Decision. The special court-martial convening
authority shall review the record produced by and the
recommendation of the person who conducted the vacation
proceeding, decide whether the probationer violated a
condition of suspension, and, if so, decide whether to
vacate the suspended sentence. If the officer
exercising jurisdiction decides to vacate the suspended
sentence, that officer shall prepare a written
statement of the evidence relied on and the reasons for
vacating the suspended sentence.
(7) Execution. Any unexecuted part of a suspended
sentence ordered vacated under this subsection shall be
ordered executed.
(f) Vacation of a suspended special court-martial
sentence that includes a bad-conduct discharge.
(1) The procedure for the vacation of a suspended
approved bad-conduct discharge shall follow that set
forth in subsection (d) of this rule.
(2) The procedure for the vacation of the
suspension of any lesser special court-martial
punishment shall follow that set forth in subsection
(e) of this rule.
(g) Vacation of a suspended summary court-martial
sentence.
(1) Before vacation of the suspension of a
summary court-martial sentence, the summary court-
martial convening authority for the command in which
the probationer is serving or assigned shall cause a
hearing to be held on the alleged violation(s) of the
conditions of suspension.
(2) Notice to probationer. The person conducting
the hearing shall notify the probationer before the
hearing of the rights specified in subsections
(d)(1)(B)(i), (ii), (iii), and (v) of this rule.
(3) Hearing. The procedure for the vacation
hearing shall follow that prescribed in R.C.M. 405(g),
(h)(1), and (i).
(4) Authority to vacate suspension. The summary
court-martial convening authority for the command in
which the probationer is serving or assigned shall have
the authority to vacate any punishment that the officer
had the authority to order executed.
(5) Record and recommendation. If the hearing is
not held by the commander with authority to vacate the
suspension, the person who conducts the vacation
proceeding shall make a summarized record of the
proceeding and forward the record and that officer's
written recommendation concerning vacation to the
commander with authority to vacate the suspension.
[[Page 30077]]
(6) Decision. A commander with authority to
vacate the suspension shall review the record produced
by and the recommendation of the person who conducted
the vacation proceeding, decide whether the probationer
violated a condition of suspension, and, if so, decide
whether to vacate the suspended sentence. If the
officer exercising jurisdiction decides to vacate the
suspended sentence, that officer shall prepare a
written statement of the evidence relied on and the
reasons for vacating the suspended sentence.
(7) Execution. Any unexecuted part of a suspended
sentence ordered vacated under this subsection shall be
ordered executed.''
w. 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 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 Criminal Appeals 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.''
x. R.C.M. 1203(c)(1) is amended to read as follows:
``(1) Forwarding by the Judge Advocate General to
the Court of Appeals for the Armed Forces. The Judge
Advocate General may forward the decision of the Court
of Criminal Appeals to the Court of Appeals for the
Armed Forces for review with respect to any matter of
law. In such a case, the Judge Advocate General shall
cause a copy of the decision of the Court of Criminal
Appeals and the order forwarding the case to be served
on the accused and on appellate defense counsel. While
a review of a forwarded case is pending, the Secretary
concerned may defer further service of a sentence to
confinement that has been ordered executed in such a
case.''
y. R.C.M. 1210(a) is amended by adding at the end
thereof the following sentence:
``A petition for a new trial of the facts may not be
submitted on the basis of newly discovered evidence
when the petitioner was found guilty of the relevant
offense pursuant to a guilty plea.''
Sec. 2. Part III of the Manual for Courts-Martial,
United States, is amended as follows:
a. M.R.E. 412 is amended to read as follows:
``Rule 412. Nonconsensual sexual offenses; relevance of
victim's behavior or sexual predisposition
(a) Evidence generally inadmissible. The following
evidence is not admissible in any proceeding involving
alleged sexual misconduct except as provided in
subdivisions (b) and (c) of this rule:
(1) Evidence offered to prove that any alleged
victim engaged in other sexual behavior; and
(2) Evidence offered to prove any alleged
victim's sexual predisposition.
(b) Exceptions.
(1) In a proceeding, the following evidence is
admissible, if otherwise admissible under these rules:
(A) Evidence of specific instances of sexual
behavior by the alleged victim offered to prove that a
person other than the accused was the source of semen,
injury, or other physical evidence;
(B) Evidence of specific instances of sexual
behavior by the alleged victim with respect to the
person accused of the sexual misconduct offered by the
accused to prove consent or by the prosecution; and
(C) Evidence the exclusion of which would
violate the constitutional rights of the accused.
[[Page 30078]]
(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under
subdivision (b) of this rule must:
(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 offered 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 and
the military judge and notify the alleged victim or,
when appropriate, the alleged victim's guardian or
representative.
(2) Before admitting evidence under this rule,
the military judge must conduct a hearing, which shall
be closed. At this hearing, the parties may call
witnesses, including the alleged victim, and offer
relevant evidence. The victim must be afforded a
reasonable opportunity to attend and be heard. 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 pursuant to
Article 39(a). The motion, related papers, and the
record of the hearing must be sealed and remain under
seal unless the court orders otherwise.
(3) If the military judge determines on the basis
of the hearing described in paragraph (2) of this
subdivision that the evidence that the accused seeks to
offer is relevant and that the probative value of such
evidence outweighs the danger of unfair prejudice, such
evidence shall be admissible in the trial to the extent
an order made by the military judge specifies evidence
that may be offered and areas with respect to which the
alleged victim may be examined or cross-examined.
(d) For purposes of this rule, the term ``sexual
behavior'' includes any sexual behavior not encompassed
by the alleged offense. The term ``sexual
predisposition'' refers to an alleged victim's mode of
dress, speech, or lifestyle that does not directly
refer to sexual activities or thoughts but that may
have a sexual connotation for the factfinder.
(e) A ``nonconsensual sexual offense'' is a sexual
offense in which consent by the victim is an
affirmative defense or in which the lack of consent is
an element of the offense. This term includes rape,
forcible sodomy, assault with intent to commit rape or
forcible sodomy, indecent assault, and attempts to
commit such offenses.''
b. M.R.E. 413 is added to read as follows:
``Rule 413. Evidence of Similar Crimes in Sexual
Assault Cases
(a) In a court-martial in which the accused is
charged with an offense of sexual assault, evidence of
the accused's commission of one or more offenses of
sexual assault is admissible and may be considered for
its bearing on any matter to which it is relevant.
(b) In a court-martial in which the Government
intends to offer evidence under this rule, the
Government shall disclose the evidence to the accused,
including statements of witnesses or a summary of the
substance of any testimony that is expected to be
offered, at least 5 days before the scheduled date of
trial, or at such later time as the military judge may
allow for good cause.
(c) This rule shall not be construed to limit the
admission or consideration of evidence under any other
rule.
(d) For purposes of this rule, ``offense of sexual
assault'' means an offense punishable under the Uniform
Code of Military Justice, or a crime under Federal law
or the law of a State that involved--
(1) any sexual act or sexual contact, without
consent, proscribed by the Uniform Code of Military
Justice, Federal law, or the law of a State;
[[Page 30079]]
(2) contact, without consent of the victim,
between any part of the accused's body, or an object
held or controlled by the accused, and the genitals or
anus of another person;
(3) contact, without consent of the victim,
between the genitals or anus of the accused and any
part of another person's body;
(4) deriving sexual pleasure or gratification
from the infliction of death, bodily injury, or
physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct
described in paragraphs (1) through (4).
(e) For purposes of this rule, the term ``sexual
act'' means:
(1) contact between the penis and the vulva or
the penis and the anus, and for purposes of this rule,
contact occurs upon penetration, however slight, of the
penis into the vulva or anus;
(2) contact between the mouth and the penis, the
mouth and the vulva, or the mouth and the anus;
(3) the penetration, however slight, of the anal
or genital opening of another by a hand or finger or by
any object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person; or
(4) the intentional touching, not through the
clothing, of the genitalia of another person who has
not attained the age of 16 years, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person.
(f) For purposes of this rule, the term ``sexual
contact'' means the intentional touching, either
directly or through the clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks of any
person with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person.
(g) For purposes of this rule, the term ``State''
includes a State of the United States, the District of
Columbia, Puerto Rico, Guam, the Virgin Islands, and
any other territory or possession of the United
States.''
c. M.R.E. 414 is added to read as follows:
``Rule 414. Evidence of Similar Crimes in Child
Molestation Cases
(a) In a court-martial in which the accused is
charged with an offense of child molestation, evidence
of the accused's commission of one or more offenses of
child molestation is admissible and may be considered
for its bearing on any matter to which it is relevant.
(b) In a court-martial in which the Government
intends to offer evidence under this rule, the
Government shall disclose the evidence to the accused,
including statements of witnesses or a summary of the
substance of any testimony that is expected to be
offered, at least 5 days before the scheduled date of
trial or at such later time as the military judge may
allow for good cause.
(c) This rule shall not be construed to limit the
admission or consideration of evidence under any other
rule.
(d) For purposes of this rule, ``child'' means a
person below the age of sixteen, and ``offense of child
molestation'' means an offense punishable under the
Uniform Code of Military Justice, or a crime under
Federal law or the law of a State that involved--
(1) any sexual act or sexual contact with a child
proscribed by the Uniform Code of Military Justice,
Federal law, or the law of a State;
(2) any sexually explicit conduct with children
proscribed by the Uniform Code of Military Justice,
Federal law, or the law of a State;
(3) contact between any part of the accused's
body, or an object controlled or held by the accused,
and the genitals or anus of a child;
[[Page 30080]]
(4) contact between the genitals or anus of the
accused and any part of the body of a child;
(5) deriving sexual pleasure or gratification
from the infliction of death, bodily injury, or
physical pain on a child; or
(6) an attempt or conspiracy to engage in conduct
described in paragraphs (1) through (5) of this
subdivision.
(e) For purposes of this rule, the term ``sexual
act'' means:
(1) contact between the penis and the vulva or
the penis and the anus, and for purposes of this rule
contact occurs upon penetration, however slight, of the
penis into the vulva or anus;
(2) contact between the mouth and the penis, the
mouth and the vulva, or the mouth and the anus;
(3) the penetration, however slight, of the anal
or genital opening of another by a hand or finger or by
any object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person; or
(4) the intentional touching, not through the
clothing, of the genitalia of another person who has
not attained the age of 16 years, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person.
(f) For purposes of this rule, the term ``sexual
contact'' means the intentional touching, either
directly or through the clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks of any
person with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person.
(g) For purpose of this rule, the term ``sexually
explicit conduct'' means actual or simulated:
(1) sexual intercourse, including genital-
genital, oral-genital, anal-genital, or oral-anal,
whether between persons of the same or opposite sex;
(2) bestiality;
(3) masturbation;
(4) sadistic or masochistic abuse; or
(5) lascivious exhibition of the genitals or
pubic area of any person.
(h) For purposes of this rule, the term ``State''
includes a State of the United States, the District of
Columbia, Puerto Rico, Guam, the Virgin Islands, and
any other territory or possession of the United
States.''
d. M.R.E. 1102 is amended to read as follows:
``Amendments to the Federal Rules of Evidence shall
apply to the Military Rules of Evidence 18 months after
the effective date of such amendments, unless action to
the contrary is taken by the President.''
Sec. 3. Part IV of the Manual for Courts-Martial,
United States, is amended as follows:
a. Paragraph 19 is amended to read as follows:
``19. Article 95--Resistance, flight, breach of arrest,
and escape
a. Text.
``Any person subject to this chapter who--
(1) resists apprehension;
(2) flees from apprehension;
(3) breaks arrest; or
(4) escapes from custody or confinement shall be
punished as a court-martial may direct.''
[[Page 30081]]
b. Elements.
(1) Resisting apprehension.
(a) That a certain person attempted to
apprehend the accused;
(b) That said person was authorized to
apprehend the accused; and
(c) That the accused actively resisted the
apprehension.
(2) Flight from apprehension.
(a) That a certain person attempted to
apprehend the accused;
(b) That said person was authorized to
apprehend the accused; and
(c) That the accused fled from the
apprehension.
(3) Breaking arrest.
(a) That a certain person ordered the accused
into arrest;
(b) That said person was authorized to order
the accused into arrest; and
(c) That the accused went beyond the limits of
arrest before being released from that arrest by proper
authority.
(4) Escape from custody.
(a) That a certain person apprehended the
accused;
(b) That said person was authorized to
apprehend the accused; and
(c) That the accused freed himself or herself
from custody before being released by proper authority.
(5) Escape from confinement.
(a) That a certain person ordered the accused
into confinement;
(b) That said person was authorized to order
the accused into confinement; and
(c) That the accused freed himself or herself
from confinement before being released by proper
authority. [Note: If the escape was from post-trial
confinement, add the following element]
(d) That the confinement was the result of a
court-martial conviction.
c. Explanation.
(1) Resisting apprehension.
(a) Apprehension. Apprehension is the taking of
a person into custody. See R.C.M. 302.
(b) Authority to apprehend. See R.C.M. 302(b)
concerning who may apprehend. Whether the status of a
person authorized that person to apprehend the accused
is a question of law to be decided by the military
judge. Whether the person who attempted to make an
apprehension had such a status is a question of fact to
be decided by the factfinder.
(c) Nature of the resistance. The resistance
must be active, such as assaulting the person
attempting to apprehend. Mere words of opposition,
argument, or abuse, and attempts to escape from custody
after the apprehension is complete, do not constitute
the offense of resisting apprehension although they may
constitute other offenses.
(d) Mistake. It is a defense that the accused
held a reasonable belief that the person attempting to
apprehend did not have authority to do so. However, the
accused's belief at the time that no basis existed for
the apprehension is not a defense.
(e) Illegal apprehension. A person may not be
convicted of resisting apprehension if the attempted
apprehension is illegal, but may be convicted of other
offenses, such as assault, depending on all the
circumstances. An attempted apprehension by a person
authorized to apprehend is presumed
[[Page 30082]]
to be legal in the absence of evidence to the contrary.
Ordinarily the legality of an apprehension is a
question of law to be decided by the military judge.
(2) Flight from apprehension. The flight must be
active, such as running or driving away.
(3) Breaking arrest.
(a) Arrest. There are two types of arrest:
pretrial arrest under Article 9 (see R.C.M. 304), and
arrest under Article 15 (see paragraph 5c.(3), Part V,
MCM). This article prohibits breaking any arrest.
(b) Authority to order arrest. See R.C.M.
304(b) and paragraphs 2 and 5b, Part V, MCM, concerning
authority to order arrest.
(c) Nature of restraint imposed by arrest. In
arrest, the restraint is moral restraint imposed by
orders fixing the limits of arrest.
(d) Breaking. Breaking arrest is committed when
the person in arrest infringes the limits set by
orders. The reason for the infringement is immaterial.
For example, innocence of the offense with respect to
which an arrest may have been imposed is not a defense.
(e) Illegal arrest. A person may not be
convicted of breaking arrest if the arrest is illegal.
An arrest ordered by one authorized to do so is
presumed to be legal in the absence of some evidence to
the contrary. Ordinarily, the legality of an arrest is
a question of law to be decided by the military judge.
(4) Escape from custody.
(a) Custody. ``Custody'' is restraint of free
locomotion imposed by lawful apprehension. The
restraint may be physical or, once there has been a
submission to apprehension or a forcible taking into
custody, it may consist of control exercised in the
presence of the prisoner by official acts or orders.
Custody is temporary restraint intended to continue
until other restraint (arrest, restriction,
confinement) is imposed or the person is released.
(b) Authority to apprehend. See subparagraph
(1)(b) above.
(c) Escape. For a discussion of escape, see
subparagraph c(5)(c), below.
(d) Illegal custody. A person may not be
convicted of this offense if the custody was illegal.
An apprehension effected by one authorized to apprehend
is presumed to be lawful in the absence of evidence to
the contrary. Ordinarily, the legality of an
apprehension is a question of law to be decided by the
military judge.
(e) Correctional custody. See paragraph 70.
(5) Escape from confinement.
(a) Confinement. Confinement is physical
restraint imposed under R.C.M. 305, 1101, or paragraph
5b, Part V, MCM. For purposes of the element of post-
trial confinement (subparagraph b(5)(d), above) and
increased punishment therefrom (subparagraph e(4),
below), the confinement must have been imposed pursuant
to an adjudged sentence of a court-martial, and not as
a result of pretrial restraint or nonjudicial
punishment.
(b) Authority to order confinement. See R.C.M.
304(b), 1101, and paragraphs 2 and 5b, Part V, MCM,
concerning who may order confinement.
(c) Escape. An escape may be either with or
without force or artifice, and either with or without
the consent of the custodian. However, where a prisoner
is released by one with apparent authority to do so,
the prisoner may not be convicted of escape from
confinement. See also paragraph 20c.(l)(b). Any
completed casting off of the restraint of confinement,
before release by proper authority, is an escape, and
lack of effectiveness of the restraint imposed is
immaterial. An escape is not complete until the
prisoner is momentarily free from the restraint. If the
movement toward escape is
[[Page 30083]]
opposed, or before it is completed, an immediate
pursuit follows, there is no escape until opposition is
overcome or pursuit is eluded.
(d) Status when temporarily outside confinement
facility. A prisoner who is temporarily escorted
outside a confinement facility for a work detail or
other reason by a guard, who has both the duty and
means to prevent that prisoner from escaping, remains
in confinement.
(e) Legality of confinement. A person may not
be convicted of escape from confinement if the
confinement is illegal. Confinement ordered by one
authorized to do so is presumed to be lawful in the
absence of evidence to the contrary. Ordinarily, the
legality of confinement is a question of law to be
decided by the military judge.
d. Lesser included offenses.
(1) Resisting apprehension. Article 128--assault;
assault consummated by a battery
(2) Breaking arrest.
(a) Article 134--breaking restriction
(b) Article 80--attempts
(3) Escape from custody. Article 80--attempts
(4) Escape from confinement. Article 80--attempts
e. Maximum punishment.
(1) Resisting apprehension. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(2) Flight from apprehension. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(3) Breaking arrest. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 6 months.
(4) Escape from custody, pretrial confinement, or
confinement on bread and water or diminished rations
imposed pursuant to Article 15. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 1 year.
(5) Escape from post-trial confinement.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
f. Sample specifications.
(1) Resisting apprehension.
In that ______________ (personal jurisdiction
data), did (at/on board--location) (subject-matter
jurisdiction data, if required), on or about
__________, 19____, resist being apprehended by
__________, (an armed force policeman) (__________), a
person authorized to apprehend the accused.
(2) Flight from apprehension.
In that ______________ (personal jurisdiction
data), did (at/on board--location) (subject matter
jurisdiction data, if required), on or about
__________________ 19____, flee apprehension by
________________ (an armed force policeman)
(__________________), a person authorized to apprehend
the accused.
(3) Breaking arrest.
In that ______________ (personal jurisdiction
data), having been placed in arrest (in quarters) (in
his/her company area) ( __________________ ) by a
person authorized to order the accused into arrest,
did, (at/on board--location) on or about
____________________ 19____, break said arrest.
(4) Escape from custody.
In that ______________________ (personal
jurisdiction data), did, (at/on board--location)
(subject-matter jurisdiction data, if required), on or
about
[[Page 30084]]
__________________ 19____, escape from the custody of
__________________, a person authorized to apprehend
the accused.
(5) Escape from confinement.
In that __________________ (personal jurisdiction
data), having been placed in (post-trial) confinement
in (place of confinement), by a person authorized to
order said accused into confinement did, (at/on board--
location) (subject-matter jurisdiction data, if
required), on or about ________________ 19____, escape
from confinement.''
b. The following new paragraph is added after paragraph
97:
``97a. Article 134--(Parole, Violation of)
a. Text. See paragraph 60.
b. Elements.
(1) That the accused was a prisoner as the result
of a court-martial conviction or other criminal
proceeding;
(2) That the accused was on parole;
(3) That there were certain conditions of parole
that the parolee was bound to obey;
(4) That the accused violated the conditions of
parole by doing an act or failing to do an act; and
(5) 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) ``Prisoner'' refers only to those in
confinement resulting from conviction at a court-
martial or other criminal proceeding.
(2) ``Parole'' is defined as ``word of honor.'' A
prisoner on parole, or parolee, has agreed to adhere to
a parole plan and conditions of parole. A ``parole
plan'' is a written or oral agreement made by the
prisoner prior to parole to do or refrain from doing
certain acts or activities. A parole plan may include a
residence requirement stating where and with whom a
parolee will live, and a requirement that the prisoner
have an offer of guaranteed employment. ``Conditions of
parole'' include the parole plan and other reasonable
and appropriate conditions of parole, such as paying
restitution, beginning or continuing treatment for
alcohol or drug abuse, or paying a fine ordered
executed as part of the prisoner's court-martial
sentence. In return for giving his or her ``word of
honor'' to abide by a parole plan and conditions of
parole, the prisoner is granted parole.
d. Lesser included offense. Article 80--attempts.
e. Maximum punishment. Bad-conduct discharge,
confinement for 6 months, and forfeiture of two-thirds
pay per month for 6 months.
f. Sample specification.
In that ____________________ (personal jurisdiction
data), a prisoner on parole, did, (at/on board--
location), on or about ____________, 19____, violate
the conditions of his/her parole by
______________________________.''
c. Paragraph 45.a and b are amended to read as follows:
``45. Article 120--Rape and carnal knowledge
a. Text.
``(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.
(b) Any person subject to this chapter who, under
circumstances not amounting to rape, commits an act of
sexual intercourse with a person--
(1) who is not his or her spouse; and
[[Page 30085]]
(2) who has not attained the age of sixteen
years; is guilty of carnal knowledge and shall be
punished as a court-martial may direct.
(c) Penetration, however slight, is sufficient to
complete either of these offenses.
(d)(1) In a prosecution under subsection (b), it is
an affirmative defense that--
(A) the person with whom the accused committed
the act of sexual intercourse had at the time of the
alleged offense attained the age of twelve years; and
(B) the accused reasonably believed that the
person had at the time of the alleged offense attained
the age of 16 years.
(2) The accused has the burden of proving a
defense under subparagraph (d)(1) by a preponderance of
the evidence.''
b. Elements.
(1) Rape.
(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.
(2) Carnal knowledge.
(a) That the accused committed an act of
sexual intercourse with a certain person;
(b) That the person was not the accused's
spouse; and
(c) That at the time of the sexual
intercourse the person was under 16 years of age.''
d. Paragraph 45c.(2) is amended to read as follows:
``(2) Carnal knowledge. ``Carnal knowledge'' is
sexual intercourse under circumstances not amounting to
rape, with a person who is not the accused's spouse and
who has not attained the age of 16 years. Any
penetration, however slight, is sufficient to complete
the offense. It is a defense, however, which the
accused must prove by a preponderance of the evidence,
that at the time of the act of sexual intercourse, the
person with whom the accused committed the act of
sexual intercourse was at least 12 years of age, and
that the accused reasonably believed that this same
person was at least 16 years of age.''
e. Paragraph 54e.(l) is amended to read as follows:
``(1) Simple Assault.
(A) Generally. Confinement for 3 months and
forfeiture of two-thirds pay per month for 3 months.
(B) When committed with an unloaded firearm.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 3 years.''
Sec. 4. These amendments shall take effect on May 27,
1998, subject to the following:
(a) The amendments made to Military Rules of
Evidence 412, 413, and 414 shall apply only to courts-
martial in which arraignment has been completed on or
after June 26, 1998.
(b) Nothing contained in these amendments shall be
construed to make punishable any act done or omitted
prior to June 26, 1998, which was not punishable when
done or omitted.
(c) The amendment made to Part IV, para. 45c.(2),
authorizing a mistake of fact defense as to age in
carnal knowledge prosecutions is effective in all cases
in which the accused was arraigned on the offense of
carnal knowledge, or for a greater offense that is
later reduced to the lesser included offense of carnal
knowledge, on or after February 10, 1996.
[[Page 30086]]
(d) 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 May 27, 1998, and any such nonjudicial punishment
proceeding, 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 27, 1998.
[FR Doc. 98-14688
Filed 6-1-98; 8:45 am]
Billing code 3195-01-P
Changes to the Discussion Accompanying the Manual for
Courts-Martial, United States.
a. The Discussion following R.C.M. 103 is amended by
adding the following two sections at the end of the
Discussion:
``(14) ``Classified information'' (A) means any
information or material that has been determined by an
official of the United States pursuant to law, an
Executive Order, or regulation to require protection
against unauthorized disclosure for reasons of national
security, and (B) any restricted data, as defined in
section 2014(y) of title 42, United States Code.
(15) ``National security'' means the national
defense and foreign relations of the United States.''
b. The Discussion following R.C.M. 405(e) is amended by
adding the following paragraph at the end of the
Discussion:
``In investigating uncharged misconduct identified
during the pretrial investigation, the investigating
officer will inform the accused of the general nature
of each uncharged offense investigated, and otherwise
afford the accused the same opportunity for
representation, cross examination, and presentation
afforded during the investigation of any charged
offense.''
c. The Discussion following R.C.M. 703(e)(2)(G)(i) is
amended by adding the following sentence at the end of
the second paragraph:
``Failing to comply with such a subpoena is a
felony offense, and may result in a fine or
imprisonment, or both, at the discretion of the
district court.''
d. The following Discussion is inserted after the first
two sentences of R.C.M. 707(c):
``Periods during which the accused is hospitalized
due to incompetence or otherwise in the custody of the
Attorney General are excluded when determining speedy
trial under this rule.''
e. The following Discussion is added after R.C.M.
909(f):
``Under section 4241(d) of title 18, the initial
period of hospitalization for an incompetent accused
shall not exceed four months. However, in determining
whether there is a substantial probability the accused
will attain the capacity to permit the trial to proceed
in the foreseeable future, the accused may be
hospitalized for an additional reasonable period of
time.
This additional period of time ends either when the
accused's mental condition is improved so that trial
may proceed, or when the pending
[[Page 30087]]
charges against the accused are dismissed. If charges
are dismissed solely due to the accused's mental
condition, the accused is subject to hospitalization as
provided in section 4246 of title 18.''
f. The Discussion following R.C.M. 916(j) is amended by
inserting the following paragraph after the third
paragraph in the Discussion:
``Examples of offenses in which the accused's
intent or knowledge is immaterial include: carnal
knowledge (if the victim is under 12 years of age,
knowledge or belief as to age is immaterial) and
improper use of countersign (mistake as to authority of
person to whom disclosed not a defense). However, such
ignorance or mistake may be relevant in extenuation and
mitigation.''
g. The Discussion following R.C.M. 1003(b)(2) is
amended by inserting the following paragraph after the
first paragraph in the Discussion:
``Forfeitures of pay and allowances adjudged as
part of a court-martial sentence, or occurring by
operation of Article 58b are effective 14 days after
the sentence is adjudged or when the sentence is
approved by the convening authority, whichever is
earlier.''
h. The Discussion following R.C.M. 1003(b)(2) is
amended by adding the following at the end of the
Discussion:
``Forfeiture of pay and allowances under Article
58b is not a part of the sentence, but is an
administrative result thereof.
At general courts-martial, if both a punitive
discharge and confinement are adjudged, then the
operation of Article 58b results in total forfeiture of
pay and allowances during that period of confinement.
If only confinement is adjudged, then if that
confinement exceeds six months, the operation of
Article 58b results in total forfeiture of pay and
allowances during that period of confinement. If only a
punitive discharge is adjudged, Article 58b has no
effect on pay and allowances. A death sentence results
in total forfeiture of pay and allowances.
At a special court-martial, if a bad-conduct
discharge and confinement are adjudged, then the
operation of Article 58b results in a forfeiture of
two-thirds of pay only during that period of
confinement. If only confinement is adjudged, however,
then Article 58b has no effect on adjudged forfeitures.
If the sentence, as approved by the convening
authority or other competent authority, does not result
in forfeitures by the operation of Article 58b, then
only adjudged forfeitures are effective.
Article 58b has no effect on summary courts-
martial.''
i. The Discussion following R.C.M. 1101(c)(6) is
amended to read as follows:
``When the sentence is ordered executed,
forfeitures or reduction in grade may be suspended, but
may not be deferred; deferral of confinement may
continue after action in accordance with R.C.M. 1107. A
form of punishment cannot be both deferred and
suspended at the same time. When deferment of
confinement, forfeitures, or reduction in grade ends,
the sentence to confinement, forfeitures, or reduction
in grade begins to run or resumes running, as
appropriate. When the convening authority has specified
in the action that confinement will be deferred after
the action, the deferment may not be terminated, except
under subsections (6)(B), (C), or (D), until the
conviction is final under R.C.M. 1209.
See R.C.M. 1203 for deferment of a sentence to
confinement pending review under Article 67(a)(2).''
j. The following Discussion is added after R.C.M.
1101(d):
``Forfeitures resulting by operation of law, rather
than those adjudged as part of a sentence, may be
waived for six months or for the duration of the period
of confinement, whichever is less. The waived
forfeitures are paid as support to dependent(s)
designated by the convening authority. When directing
waiver and payment, the convening authority should
identify by name the dependent(s) to whom the payments
will be made and state the number of months for which
the waiver and payment shall apply.
[[Page 30088]]
In cases where the amount to be waived and paid is less
than the jurisdictional limit of the court, the monthly
dollar amount of the waiver and payment should be
stated.''
k. The Discussion following R.C.M. 1105(b) is amended
by adding the following at the end of the Discussion:
``Although only written submissions must be
considered, the convening authority may consider any
submission by the accused, including, but not limited
to, videotapes, photographs, and oral presentations.''
l. The following Discussion is added after R.C.M.
1107(b)(4):
``Commitment of the accused to the custody of the
Attorney General for hospitalization is
discretionary.''
m. The Discussion following R.C.M. 1109(d)(1)(E) is
amended to read as follows:
``See Appendix 18 for a sample of a Report of
Proceedings to Vacate Suspension of a General Court-
Martial Sentence under Article 72, UCMJ, and R.C.M.
1109 (DD Form 455).''
n. The following Discussion is added after R.C.M.
1109(f):
``An officer exercising special court-martial
jurisdiction may vacate any suspended punishments other
than an approved suspended bad-conduct discharge,
regardless of whether they are contained in the same
sentence as a bad-conduct discharge.
See Appendix 18 for a sample of a Report of
Proceedings to Vacate Suspension of a Special Court-
Martial Sentence including a bad-conduct discharge
under Article 72, UCMJ, and R.C.M. 1109 (DD Form
455).''
Changes to the Analysis Accompanying the Manual for
Courts-Martial, United States.
1. Changes to Appendix 21, the Analysis accompanying
the Rules for Courts-Martial (Part II, MCM).
a. R.C.M. 103. The analysis accompanying R.C.M. 103 is
amended by inserting the following at the end thereof:
``1998 Amendment:'' The Discussion was amended to
include new definitions of ``classified information''
in (14) and ``national security'' in (15). They are
identical to those used in the Classified Information
Procedures Act (18 U.S.C. App. III Sec. 1, et. seq.).
They were added in connection with the change to
Article 62(a)(1) (Appeals Relating to Disclosure of
Classified Information). See R.C.M. 908 (Appeal by the
United States) and M.R.E. 505 (Classified
Information).''
b. R.C.M. 405. The analysis accompanying R.C.M. 405(e)
is amended by inserting the following at the end
thereof:
``1998 Amendment:'' This change is based on the
amendments to Article 32 enacted by Congress in section
1131, National Defense Authorization Act for Fiscal
Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 464
(1996). It authorizes the Article 32 investigating
officer to investigate uncharged offenses when, during
the course of the Article 32 investigation, the
evidence indicates that the accused may have committed
such offenses. Permitting the investigating officer to
investigate uncharged offenses and recommend an
appropriate disposition benefits both the government
and the accused. It promotes judicial economy while
still affording the accused the same rights the accused
would have in the investigation of preferred charges.''
c. R.C.M. 703. The analysis accompanying R.C.M.
703(e)(2)(G)(i) is amended by inserting the following
at the end thereof:
``1998 Amendment:'' The Discussion was amended to
reflect the amendment of Article 47, UCMJ, in section
1111 of the National Defense Authorization Act for
Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186,
461 (1996). The amendment removes limitations on the
punishment that a federal district court may impose for
a civilian witness' refusal to honor a subpoena to
appear or testify before a court-martial. Previously,
the maximum sentence
[[Page 30089]]
for a recalcitrant witness was ``a fine of not more
than $500.00, or imprisonment for not more than six
months, or both.'' The law now leaves the amount of
confinement or fine to the discretion of the federal
district court.''
d. R.C.M. 706. The analysis accompanying R.C.M. 706 is
amended by inserting the following at the end thereof:
``1998 Amendment:'' Subsection (c)(2)(D) was
amended to reflect the standard for incompetence set
forth in Article 76b, UCMJ.''
e. R.C.M. 707(c). The analysis accompanying R.C.M.
707(c) is amended by inserting the following at the end
thereof:
``1998 Amendment:'' In creating Article 76b, UCMJ,
Congress mandated the commitment of an incompetent
accused to the custody of the Attorney General. As an
accused is not under military control during any such
period of custody, the entire time period is excludable
delay under the 120-day speedy trial rule.''
f. R.C.M. 809. The analysis accompanying R.C.M. 809 is
amended by adding the following at the end thereof:
``1998 Amendment:'' R.C.M. 809 was amended to
modernize military contempt procedures, as recommended
in United States v. Burnett, 27 M.J. 99, 106 (C.M.A.
1988). Thus, the amendment simplifies the contempt
procedure in trials by courts-martial by vesting
contempt power in the military judge and eliminating
the members' involvement in the process. The amendment
also provides that the court-martial proceedings need
not be suspended while the contempt proceedings are
conducted. The proceedings will be conducted by the
military judge in all cases, outside of the members'
presence. The military judge also exercises discretion
as to the timing of the proceedings and, therefore, may
assure that the court-martial is not otherwise
unnecessarily disrupted or the accused prejudiced by
the contempt proceedings. See Sacher v. United States,
343 U.S. 1, 10, 72 S. Ct. 451, 455, 96 L. Ed. 717, 724
(1952). The amendment also brings court-martial
contempt procedures into line with the procedure
applicable in other courts.''
g. R.C.M. 908. The analysis accompanying R.C.M. 908 is
amended by inserting the following at the end thereof:
``1998 Amendment:'' The change to R.C.M. 908(a)
resulted from the amendment to Article 62, UCMJ, in
section 1141, National Defense Authorization Act for
Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186,
466-67 (1996). It permits interlocutory appeal of
rulings disclosing classified information.''
h. R.C.M. 909. The analysis accompanying R.C.M. 909 is
amended by inserting the following at the end thereof:
``1998 Amendment:'' The rule was changed to provide
for the hospitalization of an incompetent accused after
the enactment of Article 76b, UCMJ, in section 1133 of
the National Defense Authorization Act for Fiscal Year
1996, Pub. L. No. 104-106, 110 Stat. 186, 464-66
(1996).''
i. R.C.M. 916(b). The analysis accompanying R.C.M.
916(b) is amended by inserting the following at the end
thereof:
``1998 Amendment:'' In enacting section 1113 of the
National Defense Authorization Act for Fiscal Year
1996, Pub. L. No. 104-106, 110 Stat. 186, 462 (1996),
Congress amended Article 120, UCMJ, to create a mistake
of fact defense to a prosecution for carnal knowledge.
The accused must prove by a preponderance of the
evidence that the person with whom he or she had sexual
intercourse was at least 12 years of age, and that the
accused reasonably believed that this person was at
least 16 years of age. The changes to R.C.M. 916(b) and
(j) implement this amendment.''
j. R.C.M. 916(j). The analysis accompanying R.C.M.
916(j) is amended by inserting the following at the end
thereof:
``1998 Amendment:'' In enacting section 1113 of the
National Defense Authorization Act for Fiscal Year
1996, Pub. L. No. 104-106, 110 Stat. 186, 462 (1996),
Congress amended Article 120, UCMJ, to create a mistake
of fact defense to a prosecution for carnal knowledge.
The accused must prove by a preponderance of the
evidence that the person with whom he or she had sexual
intercourse was at least 12 years of age, and that
[[Page 30090]]
the accused reasonably believed that this person was at
least 16 years of age. The changes to R.C.M. 916(b) and
(j) implement this amendment.''
k. R.C.M. 920(e). The analysis accompanying R.C.M.
920(e) is amended by inserting the following at the end
thereof:
``1998 Amendment:'' This change to R.C.M. 920(e)
implemented Congress' creation of a mistake of fact
defense for carnal knowledge. Article 120(d), UCMJ,
provides that the accused must prove by a preponderance
of the evidence that the person with whom he or she had
sexual intercourse was at least 12 years of age, and
that the accused reasonably believed that this person
was at least 16 years of age.''
l. R.C.M. 1005(e). The analysis accompanying R.C.M.
1005(e) is amended by inserting the following at the
end thereof:
``1998 Amendment:'' The requirement to instruct
members on the effect a sentence including a punitive
discharge and confinement, or confinement exceeding six
months, may have on adjudged forfeitures was made
necessary by the creation of Article 58b, UCMJ, in
section 1122, National Defense Authorization Act for
Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186,
463 (1996).''
m. R.C.M. 1101. The analysis accompanying R.C.M.
1101(c) is amended by inserting the following at the
end thereof:
``1998 Amendment:'' In enacting section 1121 of the
National Defense Authorization Act for Fiscal Year
1996, Pub. L. No. 104-106, 110 Stat. 186, 462, 464
(1996), Congress amended Article 57(a) to make
forfeitures of pay and allowances and reductions in
grade effective either 14 days after being adjudged by
a court-martial, or when the convening authority takes
action in the case, whichever was earlier in time.
Until this change, any forfeiture or reduction in grade
adjudged by the court did not take effect until
convening authority action, which meant the accused
often retained the privileges of his or her rank and
pay for up to several months. The intent of the
amendment to Article 57(a) was to change this situation
so that the desired punitive and rehabilitative impact
on the accused occurred more quickly.
Congress, however, desired that a deserving accused
be permitted to request a deferment of any adjudged
forfeitures or reduction in grade, so that a convening
authority, in appropriate situations, might mitigate
the effect of Article 57(a).
This change to R.C.M. 1101 is in addition to the
change to R.C.M. 1203. The latter implements Congress'
creation of Article 57a, giving the Service Secretary
concerned the authority to defer a sentence to
confinement pending review under Article 67(a)(2).''
n. R.C.M. 1101(d). The analysis accompanying R.C.M.
1101(d) is added as follows:
``1998 Amendment:'' This new subsection implements
Article 58b, UCMJ, created by section 1122, National
Defense Authorization Act for Fiscal Year 1996, Pub. L.
No. 104-106, 110 Stat. 186, 463 (1996). This article
permits the convening authority (or other person acting
under Article 60) to waive any or all of the
forfeitures of pay and allowances forfeited by
operation of Article 58b(a) for a period not to exceed
six months. The purpose of such waiver is to provide
support to some or all of the accused's dependent(s)
when circumstances warrant. The convening authority
directs the waiver and identifies those dependent(s)
who shall receive the payment(s).''
o. R.C.M. 1102A. The analysis accompanying R.C.M. 1102A
is added as follows:
``1998 Amendment:'' This new Rule implements
Article 76b(b), UCMJ. Created in section 1133 of the
National Defense Authorization Act for Fiscal Year
1996, Pub. L. No. 104-106, 110 Stat. 186, 464-66
(1996), it provides for a post-trial hearing within
forty days of the finding that the accused is not
guilty only by reason of a lack of mental
responsibility. Depending on the offense concerned, the
accused has the burden of proving either by a
preponderance of the evidence, or by clear and
convincing evidence,
[[Page 30091]]
that his or her release would not create a substantial
risk of bodily injury to another person or serious
damage to property of another due to a present mental
disease or defect. The intent of the drafters is for
R.C.M. 1102A to mirror the provisions of sections 4243
and 4247 of title 18, United States Code.''
p. R.C.M. 1107(b). The analysis accompanying R.C.M.
1107(b) is amended by inserting the following at the
end thereof:
``1998 Amendment:'' Congress created Article 76b,
UCMJ in section 1133 of the National Defense
Authorization Act for Fiscal Year 1996, Pub. L. No.
104-106, 110 Stat. 186, 464-66 (1996). It gives the
convening authority discretion to commit an accused
found not guilty only by reason of a lack of mental
responsibility to the custody of the Attorney
General.''
q. R.C.M. 1107(d). The analysis accompanying R.C.M.
1107(d) is amended by inserting the following at the
end thereof:
``1998 Amendment:'' All references to
``postponing'' service of a sentence to confinement
were changed to use the more appropriate term,
``defer.''
r. R.C.M. 1109. The analysis accompanying R.C.M. 1109
is amended by inserting the following at the end
thereof:
``1998 Amendment:'' The Rule is amended to clarify
that ``the suspension of a special court-martial
sentence which as approved includes a bad-conduct
discharge,'' permits the officer exercising special
court-martial jurisdiction to vacate any suspended
punishments other than an approved suspended bad-
conduct discharge.''
s. R.C.M. 1203(c). The analysis accompanying R.C.M.
1203(c) is amended by inserting the following at the
end thereof:
``1998 Amendment:'' The change to the rule
implements the creation of Article 57a, UCMJ, contained
in section 1123 of the National Defense Authorization
Act for Fiscal Year 1996, Pub. L. No. 104-106, 110
Stat. 186, 463-64 (1996). A sentence to confinement may
be deferred by the Secretary concerned when it has been
set aside by a Court of Criminal Appeals and a Judge
Advocate General certifies the case to the Court of
Appeals for the Armed Forces for further review under
Article 67(a)(2). Unless it can be shown that the
accused is a flight risk or a potential threat to the
community, the accused should be released from
confinement pending the appeal. See Moore v. Akins, 30
M.J. 249 (C.M.A. 1990).''
t. R.C.M. 1210. The analysis accompanying R.C.M. 1210
is amended by inserting the following at the end
thereof:
``1998 Amendment:'' R.C.M. 1210(a) was amended to
clarify its application consistent with interpretations
of Fed. R. Crim. P. 33 that newly discovered evidence
is never a basis for a new trial of the facts when the
accused has pled guilty. See United States v. Lambert,
603 F.2d 808, 809 (10th Cir. 1979); see also United
States v. Gordon, 4 F.3d 1567, 1572 n.3 (10th Cir.
1993), cert. denied, 510 U.S. 1184 (1994); United
States v. Collins, 898 F. 2d 103 (9th Cir. 1990)(per
curiam); United States v. Prince, 533 F.2d 205 (5th
Cir. 1976); Williams v. United States, 290 F.2d 217
(5th Cir. 1961). But see United States v. Brown, 11
U.S.C.M.A. 207, 211, 29 C.M.R. 23, 27 (1960)(per
Latimer, J.)(newly discovered evidence could be used to
attack guilty plea on appeal in era prior to the guilty
plea examination mandated by United States v. Care, 18
U.S.C.M.A. 535, 40 C.M.R. 247 (1969) and R.C.M.
910(e)). Article 73 authorizes a petition for a new
trial of the facts when there has been a trial. When
there is a guilty plea, there is no trial. See R.C.M.
910(j). The amendment is made in recognition of the
fact that it is difficult, if not impossible, to
determine whether newly discovered evidence would have
an impact on the trier of fact when there has been no
trier of fact and no previous trial of the facts at
which other pertinent evidence has been adduced.
Additionally, a new trial may not be granted on the
basis of newly discovered evidence unless ``[t]he newly
discovered evidence, if considered by a court-martial
in the light of all other pertinent evidence, would
probably produce a substantially more favorable result
for the accused.'' R.C.M. 1210(f)(2)(C).''
[[Page 30092]]
2. Changes to Appendix 22, the Analysis accompanying
the Military Rules of Evidence (Part III, MCM).
a. M.R.E. 412. The analysis accompanying M.R.E. 412 is
amended by inserting the following at the end thereof:
``1998 Amendment:'' The revisions to Rule 412
reflect changes made to Federal Rule of Evidence 412 by
section 40141 of the Violent Crime Control and Law
Enforcement Act of 1994, Pub L. No. 103-322, 108 Stat.
1796, 1918-19 (1994). The purpose of the amendments is
to safeguard the alleged victim against the invasion of
privacy and potential embarrassment that is associated
with public disclosure of intimate sexual details and
the infusion of sexual innuendo into the factfinding
process.
The terminology ``alleged victim'' is used because
there will frequently be a factual dispute as to
whether the sexual misconduct occurred. Rule 412 does
not, however, apply unless the person against whom the
evidence is offered can reasonably be characterized as
a ``victim of alleged sexual misconduct.''
The term ``sexual predisposition'' is added to Rule
412 to conform military practice to changes made to the
Federal Rule. The purpose of this change is to exclude
all other evidence relating to an alleged victim of
sexual misconduct that is offered to prove a sexual
predisposition. It is designed to exclude evidence that
does not directly refer to sexual activities or
thoughts but that the accused believes may have a
sexual connotation for the factfinder. Admission of
such evidence would contravene Rule 412's objectives of
shielding the alleged victim from potential
embarrassment and safeguarding the victim against
stereotypical thinking. Consequently, unless an
exception under (b)(1) is satisfied, evidence such as
that relating to the alleged victim's mode of dress,
speech, or lifestyle is inadmissible.
In drafting Rule 412, references to civil
proceedings were deleted, as these are irrelevant to
courts-martial practice. Otherwise, changes in
procedure made to the Federal Rule were incorporated,
but tailored to military practice. The Military Rule
adopts a 5-day notice period, instead of the 14-day
period specified in the Federal Rule. Additionally, the
military judge, for good cause shown, may require a
different time for such notice or permit notice during
trial. The 5-day period preserves the intent of the
Federal Rule that an alleged victim receive timely
notice of any attempt to offer evidence protected by
Rule 412, however, given the relatively short time
period between referral and trial, the 5-day period is
deemed more compatible with courts-martial practice.
Similarly, a closed hearing was substituted for the
in camera hearing required by the Federal Rule. Given
the nature of the in camera procedure used in Military
Rule of Evidence 505(i)(4), and that an in camera
hearing in the district courts more closely resembles a
closed hearing conducted pursuant to Article 39(a), the
latter was adopted as better suited to trial by courts-
martial. Any alleged victim is afforded a reasonable
opportunity to attend and be heard at the closed
Article 39(a) hearing. The closed hearing, combined
with the new requirement to seal the motion, related
papers, and the record of the hearing, fully protects
an alleged victim against invasion of privacy and
potential embarrassment.''
b. M.R.E. 413. The analysis accompanying M.R.E. 413 is
added as follows:
``1998 Amendment:'' This amendment is intended to
provide for more liberal admissibility of character
evidence in criminal cases of sexual assault where the
accused has committed a prior act of sexual assault.
Rule 413 is nearly identical to its Federal Rule
counterpart. A number of changes were made, however, to
tailor the Rule to military practice. First, all
references to Federal Rule 415 were deleted, as it
applies only to civil proceedings. Second, military
justice terminology was substituted where appropriate
(e.g. accused for defendant, court-martial for case).
Third, the 5-day notice requirement in Rule 413(b)
replaced a 15-day notice requirement in the Federal
Rule. A 5-day requirement is better suited to military
[[Page 30093]]
discovery practice. This 5-day notice requirement,
however, is not intended to restrict a military judge's
authority to grant a continuance under R.C.M.
906(b)(1). Fourth, Rule 413(d) has been modified to
include violations of the Uniform Code of Military
Justice. Also, the phrase ``without consent'' was added
to Rule 413(d)(1) to specifically exclude the
introduction of evidence concerning adultery or
consensual sodomy. Last, all incorporation by way of
reference was removed by adding subsections (e), (f),
and (g). The definitions in those subsections were
taken from title 18, United States Code
Sec. Sec. 2246(2), 2246(3), and 513(c)(5),
respectively.
Although the Rule states that the evidence ``is
admissible,'' the drafters intend that the courts apply
Rule 403 balancing to such evidence. Apparently, this
also was the intent of Congress. The legislative
history reveals that ``the general standards of the
rules of evidence will continue to apply, including the
restrictions on hearsay evidence and the court's
authority under evidence rule 403 to exclude evidence
whose probative value is substantially outweighed by
its prejudicial effect.'' 140 Cong. Rec. S12,990 (daily
ed. Sept. 20, 1994)(Floor Statement of the Principal
Senate Sponsor, Senator Bob Dole, Concerning the Prior
Crimes Evidence Rules for Sexual Assault and Child
Molestation Cases).
When ``weighing the probative value of such
evidence, the court may, as part of its rule 403
determination, consider proximity in time to the
charged or predicate misconduct; similarity to the
charged or predicate misconduct; frequency of the other
acts; surrounding circumstances; relevant intervening
events; and other relevant similarities or
differences.'' (Report of the Judicial Conference of
the United States on the Admission of Character
Evidence in Certain Sexual Misconduct Cases).''
c. M.R.E. 414. The analysis accompanying M.R.E. 414 is
added as follows:
``1998 Amendment:'' This amendment is intended to
provide for more liberal admissibility of character
evidence in criminal cases of child molestation where
the accused has committed a prior act of sexual assault
or child molestation.
Rule 414 is nearly identical to its Federal Rule
counterpart. A number of changes were made, however, to
tailor the Rule to military practice. First, all
references to Federal Rule 415 were deleted, as it
applies only to civil proceedings. Second, military
justice terminology was substituted where appropriate
(e.g. accused for defendant, court-martial for case).
Third, the 5-day notice requirement in Rule 414(b)
replaced a 15-day notice requirement in the Federal
Rule. A 5-day requirement is better suited to military
discovery practice. This 5-day notice requirement,
however, is not intended to restrict a military judge's
authority to grant a continuance under R.C.M.
906(b)(1). Fourth, Rule 414(d) has been modified to
include violations of the Uniform Code of Military
Justice. Last, all incorporation by way of reference
was removed by adding subsections (e), (f), (g), and
(h). The definitions in those subsections were taken
from title 18, United States Code Sec. Sec. 2246(2),
2246(3), 2256(2), and 513(c)(5), respectively.
Although the Rule states that the evidence ``is
admissible,'' the drafters intend that the courts apply
Rule 403 balancing to such evidence. Apparently, this
was also the intent of Congress. The legislative
history reveals that ``the general standards of the
rules of evidence will continue to apply, including the
restrictions on hearsay evidence and the court's
authority under evidence rule 403 to exclude evidence
whose probative value is substantially outweighed by
its prejudicial effect.'' 140 Cong. Rec. S12,990 (daily
ed. Sept. 20, 1994)(Floor Statement of the Principal
Senate Sponsor, Senator Bob Dole, Concerning the Prior
Crimes Evidence Rules for Sexual Assault and Child
Molestation Cases).
When ``weighing the probative value of such
evidence, the court may, as part of its rule 403
determination, consider proximity in time to the
charged or predicate misconduct; similarity to the
charged or predicate misconduct; frequency of the other
acts; surrounding circumstances; relevant intervening
events; and other relevant similarities or
differences.'' (Report
[[Page 30094]]
of the Judicial Conference of the United States on the
Admission of Character Evidence in Certain Sexual
Misconduct Cases).''
d. M.R.E. 1102. The analysis accompanying M.R.E. 1102
is amended by inserting the following at the end
thereof:
``1998 Amendment:'' The Rule is amended to increase
to 18 months the time period between changes to the
Federal Rules of Evidence and automatic amendment of
the Military Rules of Evidence. This extension allows
for the timely submission of changes through the annual
review process.''
3. Changes to Appendix 23, the Analysis accompanying
the Punitive Articles (Part IV, MCM).
a. Article 95--Resistance, flight, breach of arrest and
escape. The following analysis is inserted after the
analysis to Article 95:
``1998 Amendment:'' Subparagraphs a, b, c and f
were amended to implement the amendment to 10 U.S.C.
Sec. 895 (Article 95, UCMJ) contained in section 1112
of the National Defense Authorization Act for Fiscal
Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 461
(1996). The amendment proscribes fleeing from
apprehension without regard to whether the accused
otherwise resisted apprehension. The amendment responds
to the U.S. Court of Appeals for the Armed Forces
decisions in United States v. Harris, 29 M.J. 169
(C.M.A. 1989), and United States v. Burgess, 32 M.J.
446 (C.M.A. 1991). In both cases, the court held that
resisting apprehension does not include fleeing from
apprehension, contrary to the then-existing explanation
in Part IV, paragraph 19c.(1)(c), MCM, of the nature of
the resistance required for resisting apprehension. The
1951 and 1969 Manuals for Courts-Martial also explained
that flight could constitute resisting apprehension
under Article 95, an interpretation affirmed in the
only early military case on point, United States v.
Mercer, 11 C.M.R. 812 (A.F.B.R. 1953). Flight from
apprehension should be expressly deterred and punished
under military law. Military personnel are specially
trained and routinely expected to submit to lawful
authority. Rather than being a merely incidental or
reflexive action, flight from apprehension in the
context of the armed forces may have a distinct and
cognizable impact on military discipline.''
b. Article 120--Rape and carnal knowledge. The
following analysis is inserted after the analysis to
Article 120:
``1998 Amendment:'' In enacting section 1113 of the
National Defense Authorization Act for Fiscal Year
1996, Pub. L. No. 104-106, 110 Stat. 186, 462 (1996),
Congress amended Article 120, UCMJ, to make the offense
gender neutral and create a mistake of fact as to age
defense to a prosecution for carnal knowledge. The
accused must prove by a preponderance of the evidence
that the person with whom he or she had sexual
intercourse was at least 12 years of age, and that the
accused reasonably believed that this person was at
least 16 years of age.''
c. Article 128--Assault. The following analysis is
inserted after the analysis to Article 128, para. e:
``1998 Amendment:'' A separate maximum punishment
for assault with an unloaded firearm was created due to
the serious nature of the offense. Threatening a person
with an unloaded firearm places the victim of that
assault in fear of losing his or her life. Such a
traumatic experience is a far greater injury to the
victim than that sustained in the course of a typical
simple assault. Therefore, it calls for an increased
punishment.''
d. Article 134--(Parole, Violation of). The following
new analysis paragraph is inserted after paragraph 97:
``97a. Article 134--(Parole, Violation of)
1998 Amendment: The addition of paragraph 97a to
Part IV, Punitive Articles, makes clear that violation
of parole is an offense under Article 134, UCMJ. Both
the 1951 and 1969 Manuals for Courts-Martial listed the
offense in their respective Table of Maximum
Punishments. No explanatory guidance, however, was
contained in the discussion of Article 134, UCMJ in the
Manual for Courts-Martial. The drafters added paragraph
97a to ensure that an explanation of the offense, to
include its elements and a sample
[[Page 30095]]
specification, is contained in the Manual for Courts-
Martial, Part IV, Punitive Articles. See generally
United States v. Faist, 41 C.M.R. 720 (A.C.M.R. 1970);
United States v. Ford, 43 C.M.R. 551 (A.C.M.R. 1970).''
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