[Federal Register Volume 60, Number 100 (Wednesday, May 24, 1995)]
[Notices]
[Pages 27494-27497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12631]



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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 amendment.

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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, 12767, 12888, and 12936. The proposed changes are part of the 
1995 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 [[Page 27495]] 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. 305(g), et 
seq., is 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 in to whose charge the prisoner was committed shall, 
within 24 hours after that commitment, cause to be made a report to the 
commander which shall contain the name of the prisoner, the offenses 
charged against the prisoner, an 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 complying with 
RCM 305(d), or this subsection, may also satisfy the probable cause 
review of subsection RCM (i)(1) and (2) below, provided the commander 
is a neutral and detached officer and acts within 48 hours of the 
imposition of confinement under the military's control.
    (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
    (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, seriously injuring others, or other 
offenses which 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) Memorandum. If continued pretrial confinement is approved, the 
commander shall prepare a written memorandum which 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) 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) Preliminary review. 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 was 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. In calculating the number of days of 
confinement for purposes of this rule, the initial date of confinement 
shall count as one day and the date of the review shall also count as 
one day.
    (2) By whom made. The review under subsection (1) shall be made by 
a neutral and detached officer. A determination made by a commanding 
officer under subsection (d) or (h) of this rule satisfies this 
requirement.
    (3) 7 Day Review. 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 pretrail confinement.
    (4) Nature of the 7 day review.
    (A) 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 reviewing officer and make a statement, if 
practicable. A representative of the command may appear before the 
reviewing officer to make a statement.
    (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 the matters considered.
    (C) Standard of proof. The requirements for confinement under 
subsection (h)(2)(B) of this rule must be proved by a preponderance of 
the evidence.
    (5) Extension of time limit. The reviewing officer may, for good 
cause, extend the time limit for completion of the initial review to 10 
days after the imposition of pretrial confinement.
    (6) Action by reviewing officer. Upon completion of review, the 
reviewing officer shall approve continued confinement or order 
immediate release.
    (7) Memorandum. The 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 reviewing officer shall be maintained in accordance 
with regulations prescribed by the Secretary concerned and provided to 
the accused or the Government on request.
    (8) Reconsideration of approval of continued confinement. The 
reviewing officer shall, after notice to the parties, reconsider the 
decision to confine the prisoner upon request based upon any 
significant information not previously considered.
    (j) Review by military judge. Once the charges for which the 
accussed 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 reviewing officer's decision was an abuse of discretion, 
and there is not sufficient information presented to [[Page 27496]] the 
military judge justifying continuation of pretrial confinement under 
subsection (h)(2)(B) of this rule;
    (B) Information not presented to the reviewing officer establishes 
that the prisoner should be released under subsection (h)(2)(B) of this 
rule; or
    (C) The provisions of subsection (i) (2) or (3) 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) Pretrial Confinement Credit. The military judge shall order 
administrative credit under subsection (k) of this rule for any 
pretrial confinement served. A military judge shall order 1 day credit 
for each day of confinement served in anticipation of trial by courts-
martial, and may order more than 1 day credit for each day served as a 
result of abuse of discretion or of failure to comply with the 
provisions of subsection (f), (h), or (i) of this rule. The military 
judge may order additional credit for each day of pretrial confinement 
considered illegal or which involves unusually harsh circumstances.
    Appendix 21, R.C.M. 305 Amendments be amended by inserting the 
following at the end of section R.C.M. 305(i) Amendments:
    1995 Amendment: The amendment to subsections (h)(2)(A) and (i) 
conforms military practice to the 48-hour probable cause review 
required by County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and 
United v. Rexroat, 38 M.J. 292 (C.M.A. 1993). Rexroat, which applies 
McLaughlin to courts-martial, requires that after an accused is ordered 
into pretrial confinement, a neutral and detached official must review 
the probable cause for continued pretrial confinement within 48 hours. 
Rexroat makes clear that this neutral and detached official may be a 
commander, but this is not required. Additionally, nothing in this 
amendment prohibits the commander initially ordering an accused into 
pretrial confinement under subsection (d) from conducting the 48-hour 
probable cause review required by the subsection (i) (1) and (2), or 
the 72-hour review required by subsection (h)(2)(A), or all three 
actions, provided that commander is neutral and detached within the 
meaning of United States v. Ezell, 6 M.J. 307, 318-319 (C.M.A. 1979), 
and United States v. Lopex, 35 M.J. 35, 41 Rule 1109. Vacation of 
suspension of sentence Rule 1109(d), is amended to read as follows:
    (d) Vacation of suspended general court-martial sentence or of a 
special court-martial sentence including a suspended bad-conduct 
discharge.
    Rule 1109(d)(1)(A), is amended to read as follows:
    (A) In general. Before vacation of the suspension of any general 
court-martial sentence, or of special court-martial sentence which, as 
approved, includes a suspended bad-conduct discharge, 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 accused, who is subordinate to the officer having 
general court-martial jurisdiction over the accused, the officer 
exercising general court-marital jurisdiction over the accused shall 
personally hold the hearing under subsection (d)(1) of this rule. In 
such cases, subsection (d)(1)(D) of this rule shall not apply.
    (1) Action by officer having special court-martial jurisdiction 
over probationer.
    Rule 1109(e), is amended to read as follows:
    (e) Vacation of suspended special court-martial sentence not 
including a suspended bad-conduct discharge or of a suspended summary 
court-martial sentence.
    Rule 1109(e)(1), is amended to read as follows:
    (1) In general. Before a vacation of the suspension of the special 
court-marital sentence not including a suspended bad-conduct discharge 
or of a summary court-martial sentence, the officer having authority to 
convene for the command in which the probabtioner is serving or 
assigned to same kind of court-martial which imposed the sentence shall 
cause a hearing to be held on the alleged violation(s) of the 
conditions of suspension.
    The following discussion section shall be inserted after R.C.M. 
1109(e)(5):

Discussion

    If the special court-martial includes an approved bad conduct 
discharge, and suspended lesser punishments, the special court-martial 
convening authority may approve the vacation of lesser punishments.
    Appendix 21, R.C.M. 1109 Amendments be amended by inserting the 
following at the end thereof:
    1995 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.
    M.R.E. 1102 is amended to read as follows:
    Substantive amendments to the Federal Rules of Evidence, in so far 
as they affect criminal proceedings, shall apply to the Military Rules 
of Evidence 180 days after the effective date of such amendments unless 
action to the contrary is taken by the President.
    Appendix 22, Rule 1102 Amendments be amended by inserting the 
following at the end thereof:
    1995 Amendment: The rule is modified to more clearly reflect the 
Committee's original intent that the Federal Rules of Evidence apply to 
the armed forces ``to the extent practicable''. The new language is 
intended to insure that only changes which affect the substantive 
criminal practice, as opposed to technical language of the rule, are 
automatically applicable to the armed forces.
    Part IV of the Manual for Courts-Martial, United States, 1984, be 
amended by inserting the following new paragraph 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;
    (2) That the accused was on parole;
    (3) That the conditions of parole were that (____________);
    (4) That the accused violated the conditions of his parole by doing 
an act or failing to do an act;
    (5) That the conduct was to the prejudice of good or 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 proceedings.
    (2) ``Parole'' is defined as ``word or 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 [[Page 27497]] 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 ____________, 
199____, violate the conditions of his parole by ____________.

ADDRESSES: Copies of the proposed changes may be examined at the Office 
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: LT Kristen M. Henrichsen.

DATES: Comments on the proposed changes must be received no later than 
August 7, 1995, for consideration by the Joint Service Committee on 
Military Justice.

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

    Dated: May 18, 1995.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 95-12631 Filed 5-23-95; 8:45 am]
BILLING CODE 5000-04-M