[Federal Register Volume 61, Number 66 (Thursday, April 4, 1996)]
[Notices]
[Pages 15044-15053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8330]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial

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

Action: Notice of proposed amendments.

-----------------------------------------------------------------------0


SUMMARY: The Department of Defense is considering recommending changes 
to the Manual for Courts-Martial, United States (1995 Edition). The 
proposed changes are the 1996 draft 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 majority of the proposed changes to the MCM implement 
amendments to the Uniform Code of Military Justice (UCMJ), made 
pursuant to the Military Justice Amendments of 1995, Pub. L. No. 104-
106, 110 Stat. 461 (1996). Among other things, these changes to the MCM 
would implement recent statutory amendments that: (1) make flight from 
apprehension a punishable offense; (2) make the offense of carnal 
knowledge gender neutral and recognize the defense of a mistake of fact 
as to age under certain conditions; (3) change the effective date for 
forfeitures of pay and allowances and reductions in grade by sentence 
of court-martial; (4) provide for forfeiture of pay and allowances 
during confinement; (5) authorize deferment of confinement during the 
pendency of

[[Page 15045]]
certain appeals; (6) authorize Article 32 pretrial investigating 
officers to investigate uncharged offenses under certain circumstances 
and conditions; (7) provide that post-trial matters be submitted by the 
accused in writing to the convening authority; (8) provide for the 
commitment of the accused to a treatment facility by reason of lack of 
mental capacity or mental responsibility; and (9) authorize the United 
States to appeal rulings relating to the disclosure of classified 
information. The proposed changes to the MCM would also: (1) place 
contempt proceeding within the control and discretion of the military 
judge, vice court members; (2) increase the maximum authorized sentence 
for assaults committed with an unloaded firearm; and (3) provide that 
newly discovered evidence is not a basis for a petition for a new trial 
of the facts when the accused has pled guilty.
    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

    The Discussion following R.C.M. 103 is amended by adding the 
following two sections:
    (14) The term 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) The term ``national security'' means the national defense and 
foreign relations of the United States.
    The analysis accompanying R.C.M. 103 is amended by inserting the 
following at the end thereof:
    1996 Amendment: The definitions of ``classified information'' in 
(14) and ``national security'' in (15) are identical to those used in 
the Classified Information Procedures Act (18 U.S.C. Sec. 1). 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 
(Appeals by the United States) and M.R.E. 505 (Classified Information).
    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 the investigation of both charged and 
uncharged offenses.
    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.
    The analysis accompanying R.C.M. 405 is amended by inserting the 
following at the end thereof:
    1996 Amendment: This change is based on the amendments to Article 
32 enacted by Congress in the DoD Authorization Act for Fiscal Year 
1996, Pub. L. No. 104-106 (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.
    The Discussion following R.C.M. 703(e)(2)(G) 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.
    The analysis accompanying R.C.M. 703 is amended by inserting the 
following at the end thereof:
    1996 Amendment: Congress amended Article 47 in the National Defense 
Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106 (1996), to 
remove 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 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.
    R.C.M. 706(c)(2)(D) is amended to read as follows:
    (D) Is the accused presently suffering from a mental disease of 
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?
    The analysis accompanying R.C.M. 706 is amended by inserting the 
following at the end thereof:
    1996 Amendment: Subsection (c)(2)(D) was amended to reflect the 
standard for incompetency set forth in Article 76b.
    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.
    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, the accused is 
hospitalized due to incompetency or 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

[[Page 15046]]
convening authority shall be similarly excluded.
    The Discussion following R.C.M. 707(c) is created as follows:
    Periods during which the accused is hospitalized due to 
incompetency or otherwise in the custody of the Attorney General are 
excluded when determining speedy trial under this rule.
    The analysis accompanying R.C.M. 707(c) is amended by inserting the 
following at the end thereof:
    1996 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.
    R.C.M. 809(b)(1) is amended by deleting:
    ``In such cases, the regular proceedings shall be suspended while 
the contempt is disposed of.''
    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.
    The analysis accompanying R.C.M. 809 is amended by adding the 
following at the end thereof:
    1996 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.
    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.
    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.
    (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.
    The Discussion following R.C.M. 909(f) is amended by adding the 
following:
    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 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 4241 of title 18.
    The analysis accompanying R.C.M. 909 is amended by inserting the 
following at the end thereof:
    1996 Amendment: The rule was changed to provide for the 
hospitalization of an incompetent accused after the enactment of 
Article 76b, UCMJ, in the National Defense Authorization Act for Fiscal 
Year 1996, Pub. L. No. 104-106 (1996).
    The analysis accompanying R.C.M. 908 is amended by inserting the 
following at the end thereof:
    1996 Amendment: This change resulted from Congress' amendment to 
Article 62 in the National Defense Authorization Act for Fiscal Year 
1996, Pub. L. No. 104-106 (1996). It permits interlocutory appeal of 
rulings disclosing classified information.
    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 that 
person 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, and the general court-martial convening 
authority concurs with that conclusion,

[[Page 15047]]
the accused shall be committed by the general court-martial convening 
authority to the custody of the U.S. Attorney General. If the general 
court-martial convening authority does not concur, that authority may 
refer 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. If an inquiry pursuant to R.C.M. 706 conducted after referral 
but before trial 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) Incompetency 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 against the accused or to conduct or 
cooperate intelligently in the defense of the case.
    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. 45.c.(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.
    The analysis accompanying R.C.M. 916(b) is amended by inserting the 
following at the end thereof:
    1996 Amendment: In enacting the National Defense Authorization Act 
for Fiscal Year 1996, Pub. L. No. 104-106 (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) 
& (j) implement this amendment.
    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, which the accused must prove by a preponderance of the 
evidence, 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 that the accused reasonably believed the person was at least 16 
years of age.
    The Discussion following R.C.M. 916(j), third paragraph, is amended 
to read as follows:
    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); improper use of countersign (mistake as to authority of person 
to whom disclosed not a defense). Such ignorance or mistake may be 
relevant in extenuation and mitigation, however.
    The analysis accompanying R.C.M. 916(j) is amended by inserting the 
following at the end thereof:
    1996 Amendment: In enacting the National Defense Authorization Act 
for Fiscal Year 1996, Pub. L. No. 104-106 (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) 
& (j) implement this amendment.
    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.]
    The analysis accompanying R.C.M. 920(e) is amended by inserting the 
following at the end thereof:
    1996 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.
    The Discussion following R.C.M. 1003(b)(2) is amended by adding the 
following paragraph between the existing first and second paragraphs 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.
    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 total forfeiture of two-thirds of pay and allowances during that

[[Page 15048]]
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.
    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 which 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).
    The analysis accompanying R.C.M. 1005(e) is amended by inserting 
the following at the end thereof:
    1996 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 the National Defense 
Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106 (1996).
    The catch line 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 58(b) forfeitures
    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 service and 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 which 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 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

[[Page 15049]]
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.
    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).
    The analysis accompanying R.C.M. 1101(c) is amended by inserting 
the following at the end thereof:
    1996 Amendment: In enacting the National Defense Authorization Act 
for Fiscal Year 1996, Pub. L. No. 104-106 (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 adjudged 
forfeitures or reduction in grade took effect only at convening 
authority action, which meant the accused often retained the privileges 
of his or her rank and pay for 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).
    R.C.M. 1101 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 all or part of the forfeitures for the purpose of 
providing support to the accused's dependents for up to six months.
    (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 section 1072 of title 10.
    The Discussion following R.C.M. 1101(d) is created as follows:
    Any waived forfeitures should be expressed in a dollar amount and 
for a period of months, not to exceed the months of confinement 
adjudged.
    The analysis accompanying R.C.M. 1101(d) is created as follows:
    1996 Amendment: All references to ``postponing'' service of a 
sentence to confinement were changed to the more appropriate term 
``defer.''
    R.C.M. 1102A is created to read as follows:
    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.
    (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.
    The analysis accompanying R.C.M. 1102A is created as follows:
    1996 Amendments. This new Rule implements Article 76b(b), UCMJ. 
Created by Congress in the National Defense Authorization Act for 
Fiscal Year 1996, Pub. L. No. 104-106 (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, 
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.
    R.C.M. 1105(b) is amended to read as follows:
    (b) Matters which may be submitted. The accused may submit to the 
convening authority any matters which may reasonably tend to affect the 
convening authority's decision whether to disapprove any findings of 
guilty or to approve the sentence. The convening

[[Page 15050]]
authority is only required to consider written submissions. Submissions 
are not subject to the Military Rules of Evidence and may include:
    (1) Allegations of errors affecting the legality of the findings or 
sentence;
    (2) Portions or summaries of the record and copies of documentary 
evidence offered or introduced at trial;
    (3) Matters in mitigation which were not available for 
consideration at the court-martial; and
    (4) Clemency recommendations by any member, the military judge, or 
any other person. The defense may ask any person for such a 
recommendation.
    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.
    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 approving or 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. The 
convening authority, however, shall commit the accused to a suitable 
facility pending a hearing and disposition in accordance with R.C.M. 
1102A.
    The Discussion following R.C.M. 1107(b)(4) is created as follows:
    Commitment of the accused to the custody of the Attorney General 
for hospitalization is discretionary.
    The analysis accompanying R.C.M. 1107(b) is amended by inserting 
the following at the end thereof:
    1996 Amendment: Congress created Article 76b, UCMJ in the National 
Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106 
(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.
    The catch line for R.C.M. 1107(d)(3) is amended as follows:
    (3) Deferring service of a sentence to confinement.
    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.
    The analysis accompanying R.C.M. 1107(d) is amended by inserting 
the following at the end thereof:
    1996 Amendment: This new subsection implements the creation of 
Article 58b, UCMJ in the National Defense Authorization Act for Fiscal 
Year 1996, Pub. L. No. 104-106 (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 in excess of six months. 
Any forfeitures waived shall be paid to the accused's dependent(s) for 
support.
    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 which has been 
ordered executed in such a case.
    The analysis accompanying R.C.M. 1203(c) is amended by inserting 
the following at the end thereof:
    1996 Amendment: The change to the rule implements Congress' 
creation of Article 57a, UCMJ, contained in the National Defense 
Authorization Act for Fiscal Year 1996, Pub. L. No. 104-106 (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. Adkins, 30 M.J. 249 (C.M.A. 1990).
    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.
    The analysis accompanying R.C.M. 1210 is amended by adding the 
following at the end thereof:
    1996 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, 114 S. Ct 1236 
(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). Additionally, R.C.M. 1210(f)(2)(C) 
provides that 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.'' 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.
    Part IV, 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.''
    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
    
[[Page 15051]]

    (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 
exists 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 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). This article prohibits breaking any arrest.
    (b) Authority to order arrest. See R.C.M. 304(b) and paragraphs 2 
and 5b, Part V 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(4)(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. For purposes of the element 
of post-trial confinement (subparagraph b (5)(d), above) and increased 
punishment therefor (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 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(1)(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 opposed, or 
before it is completed, an immediate pursuit follows, there is no 
escape until opposition is overcome or pursuit is shaken off.
    (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
    
[[Page 15052]]

    (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 ______________ 199____, 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 
________ 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 accused into confinement did, (at/on board ________ 
location) (subject-matter jurisdiction data, if required), on or about 
________ 19____, escape from confinement.
    The following analysis is inserted after the analysis to Article 
95:
    1996 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 the National Defense Authorization Act for Fiscal Year 
1996, Pub. L. No. 104-106 (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 19b(i), 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.
    Part IV, paragraphs 45.a & 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
    (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 sixteen years.
    (2) The accused has the burden of proving a defense under paragraph 
(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.
    The following analysis is inserted after the analysis to Article 
120:
    1996 Amendment: In enacting the National Defense Authorization Act 
for Fiscal Year 1996, Pub. L. No. 104-106 (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.
    Part IV, paragraph 45.c.(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.
    c. Part IV, paragraph 54.e.(1), 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.

[[Page 15053]]

    (B) When committed with an unloaded firearm. Dishonorable 
discharge, forfeiture of all pay and allowances, and confinement for 2 
years.
    The following analysis is inserted after the analysis to Article 
128, para. e:
    1996 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 and therefore calls for an increased 
punishment.

ADDRESSES: Comments on the proposed changes should be sent to Maj. Paul 
Holden, Office of the Judge Advocate General, Criminal Law Division, 
2200 Army Pentagon, Washington, D.C. 20310-2200.

DATES: Comments on the proposed changes must be received no later than 
[insert date of publication +75 days] for consideration by the Joint 
Service Committee on Military Justice.

FOR FURTHER INFORMATION CONTACT: LT J. Russell McFarlane, JAGC, USNR, 
Executive Secretary, Joint Service Committee on Military Justice, 
Office of the Judge Advocate General, Criminal Law Division, Building 
111, Washington Navy Yard, Washington, D.C. 20374-1111; (202) 433-5895.

    Dated: April 1, 1996.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-8330 Filed 4-3-96; 8:45 am]
BILLING CODE 5000-04-P