E7-18787. Manual for Courts-Martial; Proposed Amendments

AGENCY:

Joint Service Committee on Military Justice (JSC), DoD.

ACTION:

Notice of proposed amendments to the Manual for Courts-Martial, United States (2005 ed.) and notice of public meeting.

SUMMARY:

The Department of Defense is considering recommending changes to the Manual for Courts-Martial, United States (2005 ed.) (MCM). The proposed changes constitute the 2007 annual review required by the MCM and DoD Directive 5500.17, “Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice,” May 3, 2003. The proposed changes concern the rules of procedure and evidence and the punitive articles applicable in trials by courts-martial. These proposed changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, “Preparation, Processing and Coordinating Legislation, Executive Orders, Proclamations, Views Letters Testimony,” June 15, 2007, and do not constitute the official position of the Department of Defense, the Military Departments, or any other Government agency.

This notice also sets forth the date, time and location for the public meeting of the JSC to discuss the proposed changes.

This notice is provided in accordance with DoD Directive 5500.17, “Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice,” May 3, 2003. This notice is intended only to improve the internal management of the Federal Government. It is not intended to create any right or benefit, substantive or procedural, enforceable at law by any party against the United States, its agencies, its officers, or any person.

In accordance with paragraph III.B.4 of the Internal Organization and Operating Procedures of the JSC, the committee also invites members of the public to suggest changes to the Manual for Courts-Martial in accordance with the described format.

DATES:

Comments on the proposed changes must be received no later than November 27, 2007 to be assured consideration by the JSC. A public meeting will be held on October 19, 2007 at 10 a.m. in the 14th Floor Conference Room, 1777 N. Kent St., Rosslyn, VA 22209-2194.

ADDRESSES:

You may submit comments, identified by docket number and or RIN number and title, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160.

Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://regulations.gov as they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Colonel Thomas E. Wand, Executive Secretary, Joint Service Committee on Military Justice, Air Force Legal Operations Agency, Military Justice Division, 112 Luke Avenue, Suite 343, Bolling Air Force Base, DC 20032, [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

The proposed amendments to the MCM are as follows:

Section 1. Part II of the Manual for Courts-Martial, United States, is amended as follows:

(a) R.C.M. 103 is amended by adding the following new subparagraph (20) and re-designating the current subparagraph (20) as subparagraph (21):

“(20) “Writing” includes printing and typewriting and reproductions of visual symbols by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.”

(b) R.C.M. 1103(b)(2)(B) is amended to read as follows:

“(B) Verbatim transcript required. Except as otherwise provided in subsection (j) of this rule, the record of trial shall include a verbatim transcript of all sessions except sessions closed for deliberations and voting when:”

(c) R.C.M. 1103(e) is amended to read as follows:

“(e) Acquittal; courts-martial resulting in findings of not guilty only by reason of lack of mental responsibility; termination prior to findings; termination after findings. Notwithstanding subsections (b), (c), and (d) of this rule, if proceedings resulted in an acquittal of all charges and specifications, in a finding of not guilty only by reason of lack of mental responsibility of all charges and specifications, or if the proceedings were terminated by withdrawal, mistrial, or dismissal before findings, or if the proceedings were terminated after findings by approval of an administrative discharge in lieu of court-martial, the record may consist of the original charge sheet, a copy of the convening order and amending orders (if any), and sufficient information to establish jurisdiction over the accused and the offenses (if not shown on the charge sheet). The convening authority or higher authority may prescribe additional requirements.”

(d) R.C.M. 1103(g)(1)(A) is amended to read as follows:

“(A) In general. In general and special courts-martial which require a verbatim transcript under subsections (b) or (c) of this rule and are subject to a review by a Court of Criminal Appeals under Article 66, the trial counsel shall cause to be prepared an original record of trial.”

(e) R.C.M. 1103(j)(2) is amended to read as follows:

“(2) Preparation of written record. When the court-martial, or any part of it, is recorded by videotape, audiotape, or similar material under subsection (j)(1) of this rule, a written, as defined in R.C.M. 103, transcript or summary as required in subsection (b)(2)(A), (b)(2)(B), (b)(2)(C), or (c) of this rule, as appropriate, shall be prepared in accordance with this rule and R.C.M. 1104 before the record is forwarded under R.C.M. 1104(e), unless military exigencies prevent transcription.”

(f) R.C.M. 1104(a)(1) is amended to read as follows:

“(1) In general. A record is authenticated by the signature of a person specified in this rule who thereby declares that the record accurately reports the proceedings. An electronic record of trial may be authenticated with the electronic signature of the military judge or other authorized person. Service of an authenticated electronic copy of the record of trial with a means to review the record of trial satisfies the requirement of service under R.C.M. 1105(c) and 1305(d). No person may be required to authenticate a record of trial if that person is not satisfied that it accurately reports the proceedings.”

(g) R.C.M. 1106(d) is amended to read as follows:

“(d) Form and content of recommendation.

(1) The purpose of the recommendation of the staff judge advocate or legal officer is to assist the convening authority to decide what action to take on the sentence in the exercise of command prerogative. The staff judge advocate or legal officer shall use the record of trial in the preparation of the recommendation, and may also use the personnel records of the accused or other matters in advising the convening authority whether clemency is warranted.

(2) Form. The recommendation of the staff judge advocate or legal officer shall be a concise written communication.

(3) Required contents. The staff judge advocate or legal advisor shall provide the convening authority with a copy of the report of results of trial, setting forth the findings, sentence, and confinement credit to be applied, a copy or summary of the pretrial agreement, if any, any recommendation for clemency by the sentencing authority, made in conjunction with the announced sentence, and the staff judge advocate's concise recommendation.”

(h) R.C.M. 1111 is amended by inserting the following sentence at the end of the rule:

“Forwarding of an authenticated electronic copy of the record of trial satisfies the requirements under this rule.”

(i) R.C.M. 1113 is amended by adding the following new subparagraph (d) and re-designating the current subparagraph (d) as subparagraph (e):

“(d) Self-executing punishments. Under regulations prescribed by the Secretary concerned, a dishonorable or bad conduct discharge that has been approved by an appropriate convening authority may be self-executing after final judgment at such time as:

(1) The accused has received a sentence of no confinement or has completed all confinement;

(2) The accused has been placed on excess or appellate leave; and,

(3) The appropriate official has certified that the accused's case is final. Upon completion of the certification, the official shall forward the certification to the accused's personnel office for preparation of a final discharge order and certificate.”

(j) R.C.M. 1114(a) is amended by inserting the following as subsection (a)(4):

“(4) Self-executing final orders. An order promulgating a self-executing dishonorable or bad conduct discharge need not be issued. The original action by a convening authority approving a discharge and certification by the appropriate official that the case is final may be forwarded to the accused's personnel office for preparation of a discharge order and certificate.”

(k) R.C.M. 1305(b) is amended by changing the first sentence to read as follows:

“(b) Contents. The summary court-martial shall prepare a written record of trial, which shall include:”

(l) R.C.M. 1305(c) is amended to read as follows:

“(c) Authentication. The summary court-martial shall authenticate the record by signing the record of trial. An electronic record of trial may be authenticated with the electronic signature of the summary court-martial.”

(m) R.C.M. 1305(d)(1)(A) is amended to read as follows”

“(A) Service. The summary court-martial shall cause a copy of the record of trial to be served on the accused as soon as it is authenticated. Service of an authenticated electronic copy of the record of trial with a means to review the record of trial satisfies the requirement of service under this rule.”

(n) R.C.M. 1306(b)(3) is amended to read as follows:

“(3) Signature. The action on the record of trial shall be signed by the convening authority. The action on an electronic record of trial may be signed with the electronic signature of the convening authority.”

Section 2. Part IV of the Manual for Courts-Martial, United States, is amended as follows:

(a) Paragraph 14, Article 90, Assaulting or willfully disobeying superior commissioned officer, paragraph c.(2)(g) is amended to read as follows:

“c.(2)(g) Time for compliance. When an order requires immediate compliance, an accused's declared intent not to obey and the failure to make any move to comply constitutes disobedience. Immediate compliance is required for any order which does not explicitly or implicitly indicate that delayed compliance is authorized or directed. If an order requires performance in the future, an accused's present statement of intention to disobey the order does not constitute disobedience of that order, although carrying out that intention may.”

(b) Paragraph 44, Article 119, Manslaughter, paragraph b. is amended to read as follows:

“b. Elements.

(1) Voluntary manslaughter.

(a) That a certain named or described person is dead;

(b) That the death resulted from the act or omission of the accused;

(c) That the killing was unlawful; and

(d) That, at the time of the killing, the accused had the intent to kill or inflict great bodily harm upon the person killed.

Note:

Add the following if applicable.

(e) That the person killed was a child under the age of 16 years.

(2) Involuntary manslaughter.

(a) That a certain named or described person is dead;

(b) That the death resulted from the act or omission of the accused;

(c) That the killing was unlawful; and

(d) That this act or omission of the accused constituted culpable negligence, or occurred while the accused was perpetrating or attempting to perpetrate an offense directly affecting the person other than burglary, sodomy, rape, robbery, or aggravated arson.

Note:

Add the following if applicable.

(e) That the person killed was a child under the age of 16 years.”

(c) Paragraph 44, Article 119, Manslaughter, paragraph c.(1)(c) is added following paragraph c.(1)(b):

“(c) When committed upon a child under 16 years of age. The maximum punishment is increased when voluntary manslaughter is committed upon a child under 16 years of age. The accused's knowledge that the child was under 16 years of age at the time of the offense is not required for the increased maximum punishment.”

(d) Paragraph 44, Article 119, Manslaughter, paragraph c.(2)(c) is added following paragraph c.(2)(b):

“(c) When committed upon a child under 16 years of age. The maximum punishment is increased when involuntary manslaughter is committed upon a child under 16 years of age. The accused's knowledge that the child was under 16 years of age at the time of the offense is not required for the increased maximum punishment.”

(e) Paragraph 44, Article 119, Manslaughter, paragraph e.(3) is added following paragraph e.(2):

“(3) Voluntary manslaughter of a child under 16 years of age. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.”

(f) Paragraph 44, Article 119, Manslaughter, paragraph e.(4) is added following paragraph e.(3):

“(4) Involuntary manslaughter of a child under 16 years of age. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.”

(g) Paragraph 44, Article 119, Manslaughter, paragraph f. is amended to read as follows:

“f. Sample specifications.

(1) Voluntary manslaughter.

In that ________(personal jurisdiction data), did, (at/on board—location) (subject matter jurisdiction data, if required), on or about ________, willfully and unlawfully kill ________, (a child under 16 years of age) by ________him/her (in) (on) the ________with a ________.

(2) Involuntary manslaughter.

In that ________(personal jurisdiction data), did, (at/on board location) (subject matter jurisdiction data, if required), on or about ________, (by culpable negligence) (while (perpetrating) (attempting to perpetrate) an offense directly affecting the person of ________, to wit: (maiming) (a battery) (________)) unlawfully kill ________(a child under 16 years of age) by ________him/her (in) (on) the ________with a ________.”

Section 3. These amendments shall take effect on [30 days after signature].

(a) Nothing in these amendments shall be construed to make punishable any act done or omitted prior to [30 days after signature] that was not punishable when done or omitted.

(b) Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceedings, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to [30 days after signature], and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed.

THE WHITE HOUSE

Changes to the Discussion Accompanying the Manual for Courts Martial, United States

(a) The following Discussion is added immediately after R.C.M. 103(20):

“The definition of ‘writing’ includes letters, words, or numbers set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or any other form of data compilation. This section makes it clear that computers and other modern reproduction systems are included in this definition, and consistent with the definition of ‘writing’ in Military Rule of Evidence 1001. The definition is comprehensive, covering all forms of writing or recording of words or word-substitutes.”

(b) The Discussion immediately following R.C.M. 1103(g)(1)(A) is amended to read as follows:

“An original record of trial includes any record of the proceedings recorded in a form that satisfies the definition of a ‘writing’ in R.C.M. 103. Any requirement to prepare a printed record of trial pursuant to this rule, either in lieu of or in addition to a record of trial recorded or compiled in some other format, including electronic or digital formats, is subject to service regulation.”

Changes to Appendix 11, Forms of Sentences

(a) a. is amended to read as follows:

“a. Announcement of sentence

See R.C.M. 1007

In announcing the sentence, the president or, in cases tried by military judge alone, the military judge should announce:

“(Name of accused), this court-martial sentences you .”

The sentence should now be announced following one of the forms contained in b below, or any necessary modification or combination thereof. Each of the forms of punishment prescribed in b are separate, that is, the adjudging of one form of punishment is not contingent upon any other punishment also being adjudged. The forms in b, however, my be combined and modified so long as the punishments adjudged is not forbidden by the code and does not exceed the maximum authorized by this Manual (see R.C.M. 1003 and Part IV) in the particular case being tried. In announcing a sentence consisting of combined punishments, the president or military judge may, for example, state:

“To forfeit all pay and allowances, to be reduced to Private, E-1, to be confined for one year, and to be dishonorably discharged from the service.”

“To forfeit $350.00 pay per month for six months, to be confined for six months, and to be discharged from the service with a bad conduct discharge.”

“To forfeit all pay and allowances, to be confined for one year and to be dismissed from the service.”

“To forfeit $250.00 pay per month for one month, and to perform hard labor without confinement for one month.””

Changes to Appendix 12, Maximum Punishment Chart

Appendix 12 is amended as follows:

(a) Amend Article 119 by inserting the following:

“Voluntary manslaughter of a child under the age of 16 years DD, BCD  20 yrs.  Total.

Involuntary manslaughter of a child under the age of 16 years DD, BCD  15 yrs.  Total”.

Changes to Appendix 22, Analysis of the Military Rules of Evidence

(a) Amend the Analysis accompanying Mil. R. Evid. 801(d)(1)(B) to read as follows:

“Rule 801(d)(1)(B) makes admissible as substantive evidence on the merits a statement consistent with the in-court testimony of the witness and “offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” Unlike Rule 801(d)(1)(A), the earlier consistent statement need not have been made under oath or at any type of proceeding. On its face, the Rule does not require that the consistent statement offered have been made prior to the time the improper influence or motive arose or prior to the alleged recent fabrication. Notwithstanding this, the Supreme Court has read such a requirement into the rule. Tome v. United States, 513 U.S. 150 (1995); see also United States v. Allison, 49 M.J. 54 (C.A.A.F. 1998). The limitation does not, however, prevent admission of a consistent statement made after an inconsistent statement but before the improper influence or motive arose. United States v. Scholle, 553 F. 2d 1109 (8th Cir. 1977). Rule 801(d)(1)(B) provides a possible means to admit evidence of fresh complaint in prosecution of sexual offenses. Although limited to circumstances in which there is a charge, for example, of recent fabrication, the Rule, when applicable, would permit not only fact of fresh complaint, as is presently possible, but also the entire portion of the consistent statement.”

Dated: September 18, 2007.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, DoD.