[Federal Register Volume 63, Number 157 (Friday, August 14, 1998)]
[Notices]
[Pages 43687-43688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21807]



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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial

AGENCY: Joint Service Committee on Military Justice.

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, (1995 ed.) [MCM]. The 
Secretary of Defense requested that the Department of Defense (DoD) 
General Counsel task the Joint Service Committee (JSC) on Military 
Justice to review the applicable sections of the MCM related to 
adultery and to recommend clarifying guidance if necessary. The JSC was 
directed to examine the treatment of adultery in the MCM and to 
consider under what circumstances adultery is prejudicial to good order 
and discipline or is of a nature to bring discredit upon the armed 
forces--a prerequisite to adultery being an offense under the Uniform 
Code of Military Justice. The JSC was also directed to determine 
whether the MCM provisions are adequate to ensure fair and relatively 
consistent treatment of servicemembers. A Senior Review Panel of 
Department of Defense civilian attorneys and judge advocates was 
established to evaluate the recommendations of the JSC. After 
soliciting input from field commanders and receiving comments from 
interested organizations and parties outside the Department of Defense, 
the JSC and Senior Review Panel recommended additional guidance to the 
MCM provisions on adultery. This guidance further defines when 
adulterous conduct is prejudicial to good order and discipline or is of 
a nature to bring discredit upon the armed forces and provides a list 
of factors to assist commanders in making such determinations.
    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, 
``Role and Responsibilities of the Joint Service Committee (JSC) on 
Military Justice,'' May 8, 1996. This notice is intended only to 
improve the internal management of the Federal Government. It is not 
intended to create any right or benefit, substantive or procedural, 
enforceable at law by any party against the United States, its 
agencies, its officers, or any persons.

DATES: Comments on the proposed changes must be received no later than 
October 28, 1998, for consideration by the JSC.

ADDRESSES: Comments on the proposed changes should be sent to Lt Col 
Thomas C. Jaster, U.S. Air Force, Air Force Legal Services Agency, 112 
Luke Avenue, Room 343, Bolling Air Force Base, Washington, DC 20332-
8000.

FOR FURTHER INFORMATION CONTACT:
Lt Col Thomas C. Jaster, U.S. Air Force, Air Force Legal Services 
Agency, 112 Luke Avenue, Room 343, Bolling Air Force Base, Washington, 
DC 20332-8000, (202) 767-1539; FAX (202) 404-8755.
    The full text of the affected section of the Manual for Courts-
Martial follows:
Section IV.
Paragraph 62. Article 134 (Adultery)
    a. Text See Paragraph 60.
    b. Elements.
    (1) That the accused wrongfully had sexual intercourse with a 
certain person;
    (2) That, at the time, the accused or the other person was married 
to someone else; and
    (3) 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.
    c. Explanation.
    (1) Nature of offense. Adultery is clearly unacceptable conduct, 
and it reflects adversely on the service record of the military member.
    (2) Conduct prejudicial to good order and discipline or of a nature 
to bring discredit upon the armed forces. To constitute an offense 
under the UCMJ, the adulterous conduct must either be directly 
prejudicial to good order and discipline or service discrediting. 
Adulterous conduct that is directly prejudicial includes conduct that 
has an immediate, obvious and measurably divisive effect on unit or 
organization discipline, morale or cohesion, or is clearly detrimental 
to the authority or stature of or respect toward a servicemember. 
Adultery may also be service discrediting, even though the conduct is 
only indirectly or remotely prejudicial to good order and discipline. 
Discredit means to injure the reputation of the armed forces and 
includes adulterous conduct that has a tendency, because of its open or 
notorious nature, to bring the service into disrepute, make it subject 
to public ridicule, or which lowers it in public esteem. While 
adulterous conduct that is private and discreet in nature may not be 
service discrediting by this standard, under the circumstances it may 
be determined to be conduct prejudicial to good order and discipline. 
Commanders should consider all relevant circumstances, including but 
not limited to the following factors, when determining whether 
adulterous acts are prejudicial to good order and discipline or are of 
a nature to bring discredit upon the armed forces:
    (a) the accused's marital status, military rank, grade, or 
position;
    (b) The co-actor's marital status, military rank, grade, and 
position, or relationship to the armed forces;
    (c) The military status of the accused's spouse or the spouse of 
co-actor, or their relationship to the armed forces;
    (d) The impact, if any, of the adulterous relationship on the 
ability of the accused, the co-actor, or the spouse of either to 
perform their duties in support of the armed forces;
    (e) The misuse, if any, of government time and resources to 
facilitate the commission of the conduct;
    (f) Whether the conduct persisted despite counseling or orders to 
desist; the flagrancy of the conduct, such as whether any notoriety 
ensued; and whether the adulterous act was accompanied by other 
violations of the UCMJ;
    (g) The negative impact of the conduct on the units or 
organizations of the accused, the co-actor or the spouse of either of 
them, such as a detrimental effect on unit or organization morale, 
teamwork, and efficiency;
    (h) Whether the married accused or co-actor was legally separated; 
and
    (i) Whether the adulterous misconduct involves an ongoing or recent 
relationship or is remote in time.
    (3) Marriage. A marriage exists until it is dissolved in accordance 
with the laws of a competent state or foreign jurisdiction.
    (4) Mistake of fact. A defense of mistake of fact exists if the 
accused had an honest and reasonable belief either that the accused and 
the co-actor were both unmarried, or that they were lawfully married to 
each other. If this defense is raised by the evidence, then the burden 
of proof is upon the United States to establish that the accused's 
belief was unreasonable or not honest.
    d. Lesser included offense. Article 80-attempts. Adultery is not a 
lesser included offense of rape.

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    e. Maximum punishment. Dishonorable discharge, forfeiture of all 
pay and allowances, and confinement for 1 year.
    Add the following subparagraph to the analysis of Article 134 
(Adultery) found at appendix 23, page A23-16 of the MCM.
    ``c. Explanation.
    (1) Subparagraph (2) is based on United States. v. Snyder, 4 C.M.R. 
15 (1952); United States v. Ruiz, 46 M.J. 503 (A.F.Ct.Crim.App. 1997); 
United States v. Green, 39 M.J. 606 (A.C.M.R. 1994); United States v. 
Collier, 36 M.J. 501 (A.F.C.M.R. 1992); United States v. Perez, 33 M.J. 
1050 (A.C.M.R. 1991); United States v. Linnear, 16 M.J. 628 (A.F.C.M.R. 
1983); Part IV, paragraph 60c(2)(a) of MCM. Subparagraph (3) is based 
on United States v. Poole, 39 M.J. 819 (A.C.M.R. 1994). Subparagraph 
(4) is based on United States v. Fogarty, 35 M.J. 885 (A.C.M.R. 1992); 
Military Judges' Benchbook, DA PAM 27-9, paragraph 3-62-1 and 5-11-2 
(30 Sep. 1996). See R.C.M. 916(j) and (I)(1) for a general discussion 
of mistake of fact and ignorance, which cannot be based on a negligent 
failure to discover the true facts.
    (2) When determining whether adulterous acts constitute the offense 
of adultery under Article 134, commanders should consider the listed 
factors. Each commander has discretion to dispose of offenses by 
members of the command. As with any alleged offense, however, under 
R.C.M. 306(b) commanders should dispose of an allegation of adultery at 
the lowest appropriate level. As the R.C.M. 306(b) discussion states, 
many factors must be taken into consideration and balanced, including, 
to the extent practicable, the nature of the offense, any mitigating or 
extenuating circumstances, the character and military service of the 
military member, any recommendations made by subordinate commanders, 
the interests of justice, military exigencies, and the effect of the 
decision on the military member and the command. The goal should be a 
disposition that is warranted, appropriate, and fair. In the case of 
officers, also consult the explanation to paragraph 59 in deciding how 
to dispose of an allegation of adultery.

    Dated: August 7, 1998.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 98-21807 Filed 8-13-98; 8:45 am]
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