[Federal Register Volume 61, Number 80 (Wednesday, April 24, 1996)]
[Notices]
[Pages 18123-18124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9993]



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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial

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

ACTION: Revised 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 (1995 Edition). On 4 
April 1996, the 1996 draft annual review, as required by the Manual for 
Courts-Martial and DoD Directive 5500.17, ``Review of the Manual for 
Courts-Martial,'' January 23, 1985, was published in the Federal 
Register, 61 Fed. Reg. 15044-53 (1996). That publication inadvertently 
published some of the text out of order. This publication is intended 
to supplement that earlier publication and to extend the public comment 
period to 25 June 1996.

    The full text of the effected sections follows:
    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.
    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 621 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, that 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. 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:

[[Page 18124]]

    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).

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 
25 June 1996 for consideration by the Joint Service Committee on 
Military Justice.

FOR FURTHER INFORMATION CONTACT:
LT J. Russell McFarlane, JAGC, UNSR, 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 18, 1996.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-9993 Filed 4-23-96; 8:45 am]
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