[Federal Register Volume 59, Number 72 (Thursday, April 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8939]


[[Page Unknown]]

[Federal Register: April 14, 1994]


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DEPARTMENT OF DEFENSE

 

Public Information Collection Requirement Submitted to OMB for 
Review

ACTION: Notice.

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    The Department of Defense has submitted to OMB for clearance the 
following proposal for collection of information under the provisions 
of the Paperwork Reduction Act (44 U.S.C. chapter 35).
Title, Applicable Form, and OMB Control Number: Procurement Technical 
Assistance Cooperative Agreement Performance Report; DLA Form 1806; OMB 
Control Number 0704-0320
Type of Request: Expedited processing--approval date requested: 30 days 
following publication in Federal Register.
Average Burden per Response: 14 Hours
Responses per Respondent: 4
Number of Respondents: 100
Annual Burden Hours: 5,600
Annual Responses: 400

    Needs and Uses: The report is the principal instrument used in 
measuring, on a quarterly basis, Cooperative Agreement recipients' 
(State and local governments, private non-profit organizations, Indian 
tribal organizations and Indian Economic enterprises) performance 
against the goals and objectives as established in their proposals for 
which the award was made.
    Affected Public: State or local governments; businesses or other 
for-profit; Federal agencies or employees; non-profit institutions; 
small businesses or organizations.
    Frequency: Quarterly.
    Respondent's Obligation: Required to obtain or retain a benefit.
    OMB Desk Officer: Mr. Peter N. Weiss.
    Written comments and recommendations on the proposed information 
collection should be sent to Mr. Weiss at the Office of Management and 
Budget, Desk Officer of DoD, room 3235, New Executive Office Building, 
Washington, DC 20503.
    DoD Clearance Officer: Mr. William P. Pearce.
    Written requests for copies of the information collection proposal 
should be sent to Mr. Pearce, WHS/DIOR, 1215 Jefferson Davis Highway, 
suite 1204, Arlington, Virginia 22202-4302.

    Dated: April 8, 1994.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.

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[FR Doc. 94-8937 Filed 4-13-94; 8:45 am]
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DEPARTMENT OF DEFENSE
Office of the Secretary

Manual for Courts-Martial

AGENCY: Joint Service Committee on Military Justice (JSC).

ACTION: Notice of proposed amendments.

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SUMMARY: The Department of Defense is considering recommending changes 
to the Manual for Courts-Martial, United States, 1984, Executive Order 
No. 12473, as amended by Executive Order Nos. 12484, 12550, 12586, 
12708, and 12888. The proposed changes are part of the 1994 annual 
review required by the Manual for Courts-Martial and DoD Directive 
5500.17, ``Review of the Manual for Courts-Martial,'' January 23, 1985.
    The proposed changes have not been coordinated within the 
Department of Defense under DoD Directive 5500.1, ``Preparation and 
Processing of Legislation, Executive Orders, Proclamations, and Reports 
and Comments Thereon'', May 21, 1964, and do not constitute the 
official position of the Department of Defense, the Military 
Departments, or any other government agency.
    This notice is provided in accordance with DoD Directive 5500.17, 
``Review of the Manual for Courts-Martial'', January 23, 1985. 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 a party against the 
United States, its agencies, its officers, or any person.
    The proposed changes follow in their entirety:

R.C.M. 1110(g)(1) be amended to read as follows:

    ``(1) In general. A waiver or withdrawal of appellate review 
under this rule shall bar review by the Judge Advocate General under 
R.C.M. 1201(b)(1) or R.C.M. 1201(b)(3) and by the Court of Military 
Review. Once submitted, a waiver or withdrawal in compliance with 
this rule may not be revoked.''

R.C.M. 1201(b)(3)(A) be amended to read as follows:

    ``(A) In general. Notwithstanding R.C.M. 1209, the Judge 
Advocate General may, sua sponte or, except when the accused has 
waived or withdrawn the right to appellate review under R.C.M. 1110, 
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 which has been 
finally reviewed, but has not been reviewed either by a Court of 
Military Review 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.''

Part IV, paragraph 4c, be amended by adding a new subparagraph (4) as 
follows:

    ``(4) Voluntary abandonment. It is a defense to an attempt 
offense that the person voluntarily and completely abandoned the 
intended crime, because of a genuine change of heart, prior to the 
completion of the crime. Voluntary abandonment because of a 
``genuine change of heart'' means that the attempted crime was 
abandoned solely because of the person's own sense that it was 
wrong. The voluntary abandonment defense is not allowed if the 
abandonment results, in whole or in part, from other reasons, for 
example, the person feared detection or apprehension, decided to 
await a better opportunity for success, was unable to complete the 
crime, or encountered unanticipated difficulties or unexpected 
resistance. A person who is entitled to the defense of voluntary 
abandonment may nonetheless be guilty of a lesser included, 
completed offense. For example, a person who voluntarily abandoned 
an attempted armed robbery may nonetheless be quilty of assault with 
a dangerous weapon.''

Part IV of the Manual for Courts-Martial, United States, 1984, be 
amended by inserting the following new paragraph after paragraph 103:

    ``103a. Article 134 (Self-injury without intent to avoid 
service)
    a. Text. See paragraph 60.
    b. Elements.
    (1) That the accused intentionally inflicted injury upon himself 
or herself;
    (2) 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.

(Note: If the offense was committed in time of war or in a hostile 
fire pay zone, add the following element)

    (3) That the offense was committed (in time of war) (in a 
hostile fire pay zone).
    c. Explanation.
    (1) Nature of offense. This offense differs from malingering 
(see paragraph 40) in that for this offense, the accused need not 
have harbored a design to avoid performance of any work, duty, or 
service which may properly or normally be expected of one in the 
military service. This offense is characterized by intentional self-
injury under such circumstances as prejudice good order and 
discipline or discredit the armed forces. It is not required that 
the accused be unable to perform duties, or that the accused 
actually be absent from his or her place or duty as a result of the 
injury. For example, the accused may inflict the injury while on 
leave or pass. The circumstances and extent of injury, however, are 
relevant to a determination that the accused's conduct was 
prejudicial to good order and discipline, or service-discrediting.
    (2) How injury inflicted. The injury may be inflicted by 
nonviolent as well as by violent means and may be accomplished by 
any act or omission which produces, prolongs, or aggravates a 
sickness or disability. Thus, voluntary starvation which results is 
debility is a self-inflicted injury. Similarly, the injury may be 
inflicted by another at the accused's request.
    d. Lesser included offense. Article 80--attempts.
    e. Maximum punishment.
    (1) Intentional self-inflicted injury. Dishonorable discharge, 
forfeiture of all pay and allowances, and confinement for 2 years.
    (2) Intentional self-inflicted injury in time of war or in a 
hostile fire pay zone. Dishonorable discharge, forfeiture of all pay 
and allowances, and confinement for 5 years.
    f. Sample specification.
    In that ________ (personal jurisdiction data), did, (at/on 
board--location) (in a hostile fire pay zone) on or about ________ 
19____, (a time of war,) intentionally injure himself/herself by 
________ (nature and circumstances of injury).''

These amendments would take effect upon approval by the President, 
subject to the following:
    a. The amendments to Rules for Courts-Martial 1110(g)(1) and 
1201(b)(3)(A) would apply only to cases in which a waiver is entered on 
or after (effective date).
    b. The amendments made to paragraph 4c of Part IV would apply only 
to cases convened on or after (effective date).
    The Discussion to R.C.M. 1201(b)(3)(A) be amended to read as 
follows:

    ``When an accused has previously waived or withdrawn appellate 
review under R.C.M. 1110, the accused may not file an application 
for relief under this rule. An accused may file only one application 
for relief within the two-year filing period.''

Appendix 12, the Maximum Punishment Chart, to the Manual for Courts-
Martial, United States, 1984 be amended by adding after Art. 134 
(Seizure, destruction, removal, or disposal of property to prevent) the 
following:


``Self-injury without intent to avoid service      DD   5 yrs.  Total   
 in time of war, or while receiving special                             
 pay under 37 U.S.C. 310.                                               
Other.........................................     DD   2 yrs.  Total'' 
                                                                        

The Analysis accompanying R.C.M. 1110(g) be amended as follows:

    ``g. Effect of waiver of withdrawal, substantial compliance 
required. Subsection (1) is based on Article 61(c). Subsections (2) 
and (3) are based on Article 64. Subsection (3) also recognizes 
that, once an appeal is filed (i.e., not waived in a timely manner) 
there may be a point at which it may not be withdrawn as of right. 
Cf. Sup. Ct. R. 53; Fed.R.App.P. 42; Hammett v. Texas, 448 U.S. 725 
(1974); Shellman v. U.S. Lines, Inc., 528 F. 2d 675 (9th Cir. 1975), 
cert. denied, 425 U.S. 936 (1976). Subsection (4) is intended to 
protect the integrity of the waiver or withdrawal procedure by 
ensuring compliance with this rule. The accused should be notified 
promptly if a purported waiver or withdrawal if defective.''

The Analysis accompanying R.C.M. 1110(g) be amended by inserting the 
following at the end thereof:

    ``________ Amendment. An accused who waives or withdraws 
appellate review under this rule may no longer file an application 
for relief to the Judge Advocate General under R.C.M. 1201(b)(3). 
This promotes judicial efficiency and economy, as most issues are 
best resolved through the normal appellate process rather than 
through special application to the Judge Advocate General.''

The Analysis accompanying R.C.M. 1201(b) be amended by inserting the 
following at the end thereof:

    ``________ Amendment. Subsection (b) was amended to limit an 
accused to the filing of only one application for relief within the 
two-year filing period. Under R.C.M. 1110(g)(1), an accused who has 
previously waived or withdrawn appellate review may no longer file 
an application for relief under this rule. These changes ensure that 
all potential issues are resolved at the earliest opportunity and do 
not prohibit an accused from filing a petition for new trial under 
R.C.M. 1210 or restrict the ability of the Judge Advocate General to 
review the case, sua sponte.''

The Analysis to paragraph 4c be amended as follows:

    ``________ Amendment. Subparagraph (4) is new. It recognizes a 
limited defense of voluntary abandonment. It is based on case law. 
United States v. Schoof, 37 M.J. 96 (C.M.A. 1993); United States v. 
Rios, 33 M.J. 436 (C.M.A. 1991); United States v. Byrd, 24 M.J. 286 
(C.M.A. 1987); Rios 32 M.J. 501 (A.C.M.R. 1990); United States v. 
Miller, 30 M.J. 999 (N.M.C.M.R. 1990); United States v. Walther, 30 
M.J. 829 (N.M.C.M.R. 1990). The prior subparagraphs (4)-(6) have 
been redesignated (5)-(7), respectively.''

Insert the following after the analysis of paragraph 103:

    ``103a. Article 134 (Self-injury without intent to avoid 
service)
    c. Explanation. This offense is based on paragraph 183a of MCM, 
U.S. Army, 1949; United States v. Taylor, 38 C.M.R. 393 (C.M.A. 
1968); United States v. Ramsey, 35 M.J. 733 (A.C.M.R. 1992), pet. 
granted, C.M.A., 37 M.J. 25 (1993); see generally TJAGSA Practice 
Note, Confusion About Malingering and Attempted Suicide, The Army 
Lawyer, Jun. 1992, at 38.
    e. Maximum punishment. The maximum punishment for subsection (1) 
reflects the serious effect that this offense may have on readiness 
and morale. The maximum punishment reflected the range of the 
effects of the injury, both in degree and duration, on the ability 
of the accused to perform work, duty, or service. The maximum 
punishment for subsection (1) is equivalent to that for offenses of 
desertion, missing movement through design, and certain violations 
of orders. The maximum punishment for subsection (2) is less than 
the maximum punishment for the offense of malingering under the same 
circumstances because of the absence of the specific intent to avoid 
work, duty, or service. The maximum punishment for subsection (2) is 
equivalent to that for nonaggravated offenses of desertion, 
willfully disobeying a superior commissioned officer, and 
nonaggravated malingering by intentional self-inflicted injury.
    f. Sample specification. See appendix 4, paragraph 177 of MCM, 
U.S. Army, 1949. Since incapacitation to perform duties is not an 
element of the offense, language relating to ``unfitting himself for 
the full performance of military service'' from the 1949 MCM has 
been omitted. The phrase ``willfully injure'' has been changed to 
read ``intentionally injure'' to parallel the language contained in 
the malingering specification under Article 115.''

ADDRESSES: Copies of the proposed changes may be examined at Officer of 
the Judge Advocate General, Criminal Law Division, Building 111, 
Washington Navy Yard, Washington, DC 20374-1111. A copy of the proposed 
changes may be obtained by mail upon request from the foregoing 
address, ATTN: LCDR L. Lynn Jowers.

DATES: Comments on the proposed changes must be received no later than 
1 August 1994 for consideration by the Joint Service Committee on 
Military Justice.

FOR FURTHER INFORMATION CONTACT:
LCDR L. Lynn Jowers, JAGC, USN, Executive Secretary, Joint Service 
Committee on Military Justice, Officer of the Judge Advocate General, 
Criminal Law Division, Building 111, Washington Navy Yard, Washington, 
DC 20374-1111; (202) 433-5895.

    Dated: April 8, 1994.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 94-8939 Filed 4-13-94; 8:45 am]
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