[Federal Register Volume 65, Number 65 (Tuesday, April 4, 2000)]
[Notices]
[Pages 17633-17636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8181]


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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial

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

ACTION: Notice of Proposed Amendments to the Manual for Courts-Martial, 
United States, (1998 ed.) and Notice of Public Meeting.

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SUMMARY: The Department of Defense is considering recommending changes 
to the Manual for Courts-Martial, United States, (1998 ed.) (MCM). The 
proposed changes concern the rules of procedure applicable in trials by 
courts-martial and implement the amendment to Article 19 of the Uniform 
Code of Military Justice contained in section 577 of the National 
Defense Authorization Act for Fiscal Year 2000. Subject to limitations 
prescribed by the President, the amendment increased the jurisdictional 
maximum punishment at special courts-martial to confinement for one 
year and forfeitures not exceeding two-thirds pay per month for one 
year, vice the previous six-month jurisdictional limitation. 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 also sets forth the date, time and location for the 
public meeting of the JSC to discuss the proposed changes.
    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. A 30-day public comment period is set 
vice the normal 75-day period due to the need to expedite the 
conforming amendments to 10 U.S.C. 819 (Article 19, UCMJ). 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 person.

DATES: Comments on the proposed changes must be received no later than 
May 4, 2000 for consideration by the JSC. A public meeting will be held 
on Tuesday, April 18, 2000 at 2:00 p.m.

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. The public meeting will be held at Room 808, 1501 Wilson Blvd, 
Arlington, VA 22209-2403.

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.

SUPPLEMENTARY INFORMATION: The proposed amendments to the Manual for 
Courts-Martial are as follows:
    Amend R.C.M 201(f)(2)(B)(i) to read as follows:

    ``Upon a finding of guilty, special courts-martial may adjudge, 
under limitations prescribed by this Manual, any punishment 
authorized under R.C.M. 1003 except death, dishonorable discharge, 
dismissal, confinement for more than 1 year, hard labor without 
confinement for more than 3 months, forfeiture of pay exceeding two-
thirds pay per month, or any forfeiture of pay for more than 1 
year.''

    Amend R.C.M 201(f)(2)(B)(ii) to read as follows:

    ``(ii) A bad-conduct discharge, confinement for more than six 
months, or forfeiture of pay for more than six months, may not be 
adjudged by a special court-martial unless:
    (a) Counsel qualified under Article 27(b) is detailed to 
represent the accused; and
    (b) A military judge is detailed to the trial, except in a case 
in which a military judge could not be detailed because of physical 
conditions or military exigencies. Physical conditions or military 
exigencies, as the terms are here used, may exist under rare 
circumstances, such as on an isolated ship on the high seas or in a 
unit in an inaccessible area, provided compelling reasons exist why 
trial must be held at that time and at that place. Mere 
inconvenience does not constitute a physical condition or military 
exigency and does not excuse a failure to detail a military judge. 
If a military judge cannot be detailed because of physical 
conditions or military exigencies, a bad-conduct discharge, 
confinement for more than six months, or forfeiture of pay for more 
than six months, may be adjudged provided the other conditions have 
been met. In that event, however, the convening authority shall, 
prior to trial, make a written statement explaining why a military 
judge could not be obtained. This statement shall be appended to the 
record of trial and shall set forth in detail the reasons why a 
military judge could not be detailed, and why the trial had to be 
held at that time and place.''

    Amend the analysis accompanying R.C.M. 201(f) by inserting the 
following before the discussion of subsection (3):

    ``2000 Amendment: Subsections (f)(2)(B)(i) and (f)(2)(B)(ii) 
were amended to remove previous limitations and thereby implement 
the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999). Subject to 
limitations prescribed by the President, the amendment increased the 
jurisdictional maximum punishment at special courts-martial to 
confinement for one year and forfeitures not exceeding two-thirds 
pay per month for one year, vice the previous six-month 
jurisdictional limitation.''

    Amend the seventh paragraph of the Discussion accompanying R.C.M. 
601(e)(1) to read as follows:

    ``The convening authority should acknowledge by an instruction 
that no bad-conduct discharge, confinement for more than six months, 
or forfeiture of pay for more than six months, may be adjudged when 
the prerequisites under Article 19 will not be met. See R.C.M. 
201(f)(2)(B)(ii). For example, this instruction should be given when 
a court reporter is not detailed.''

    Amend the first paragraph of the Discussion accompanying R.C.M. 808 
to read as follows:

    ``Except in a special court-martial not authorized to adjudge a 
bad-conduct discharge, confinement for more than six months, or 
forfeiture of pay for more than six months, the trial counsel should 
ensure that a qualified court reporter is detailed to the court-
martial. Trial counsel should also ensure that all exhibits and 
other documents relating to the case are properly maintained for 
later inclusion in the record. See also R.C.M. 1103(j) as to the use 
of videotapes, audiotapes, and similar recordings for the record of 
trial. Because of the potential requirement for a verbatim 
transcript, all proceedings, including sidebar conference, 
arguments, and rulings and instructions by the military judges, 
should be recorded.''


[[Page 17634]]


    Amend the sixth paragraph of the Discussion accompanying R.C.M. 
1003(b)(2 to read as follows:

    ``At a special court-martial, if a bad-conduct discharge and 
confinement are adjudged, then the operation of Article 58b results 
in a forfeiture of two-thirds of pay only (not allowances) during 
that period of confinement. If only confinement is adjudged, and 
that confinement exceeds six months, then the operation of Article 
58b results in a forfeiture of two-thirds of pay only (not 
allowances) during the period of confinement. If only a bad conduct 
discharge is adjudged, Article 58b has no effect on pay.''

    Amend R.C.M. 1103(b)(2)(B)(i) to read as follows:

    ``(i) Any part of the sentence adjudged exceeds six months 
confinement, forfeiture of pay greater than two-thirds pay per 
month, or any forfeiture of pay for more than six months or other 
punishments which may be adjudged by a special court-martial; or''

    Amend the analysis accompanying R.C.M. 1103(b)(2)(B) by inserting 
the following before the discussion of subsection (2)(C):

    ``2000 Amendment: Subsection (2)(B) was amended to implement the 
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial. R.C.M. 
1103(b)(2)(B) was amended to prevent an inconsistent requirement for 
a verbatim transcript between a general court-martial and a special 
court-martial when the adjudged sentence of a general court-martial 
does not include a punitive discharge or confinement greater than 
six months, but does include forfeiture of two-thirds pay per month 
for more than six months but not more than 12 months.''

    Amend R.C.M. 1103(c) to read as follows:

    ``(c) Special courts-martial.
    (1) Involving a bad-conduct discharge, confinement for more than 
six months, or forfeiture of pay for more than six months. The 
requirements of subsections (b)(1), (b)(2)(A), (b)(2)(B), (b)(2)(D), 
and (b)(3) of this rule shall apply in a special court-martial in 
which a bad-conduct discharge, confinement for more than six months, 
or forfeiture of pay for more than six months, has been adjudged.
    (2) All other special courts-martial. If the special court-
martial resulted in findings of guilty but a bad-conduct discharge, 
confinement for more than six months, or forfeiture of pay for more 
than six months, was not adjudged, the requirements of subsections 
(b)(1), (b)(2)(D), and (b)(3)(A)-(F) and (I)-(M) of this rule shall 
apply.''

    Amend the analysis accompanying R.C.M. 1103(c) by inserting the 
following before the discussion of subsection (e):

    ``2000 Amendment: Subsection (c) was amended to implement the 
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial. R.C.M. 
1103(c) was amended to conform the requirements for a verbatim 
transcript with the requirements of Article 19 for a ``complete 
record'' in cases where the adjudged sentence includes a bad-conduct 
discharge, confinement for more than six months, or forfeiture of 
pay for more than six months.''

    Amend R.C.M. 1103(f)(1) to read as follows:

    ``(1) Approve only so much of the sentence which could be 
adjudged by a special court-martial, except that no bad-conduct 
discharge, confinement for more than six months, or forfeiture of 
two-thirds pay per month for more than six months, may be approved; 
or''

    Amend the analysis accompanying R.C.M. 1103(f) by inserting the 
following before the discussion of subsection (g):

    ``2000 Amendment: Subsection (f)(1) was amended to implement the 
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial. R.C.M. 
1103(f)(1) was amended to include the additional limitations on 
sentence contained in Article 19, UCMJ.''

    Amend R.C.M. 1104(a)(2)(A) to read as follows:

    ``(A) Authentication by the military judge. In special courts-
martial in which a bad-conduct discharge, confinement for more than 
six months, or forfeiture of pay for more than six months, has been 
adjudged and in general courts-martial, except as provided in 
subsection (a)(2)(B) of this rule, the military judge present at the 
end of the proceedings shall authenticate the record of trial, or 
that portion over which the military judge presided. If more than 
one military judge presided over the proceedings, each military 
judge shall authenticate the record of the proceedings over which 
that military judge presided, except as provided in subsection 
(a)(2)(B) of this rule. The record of trial of special courts-
martial in which no bad-conduct discharge, confinement for more than 
six months, or forfeiture of pay for more than six months, was 
adjudged shall be authenticated in accordance with regulations of 
the Secretary concerned.''

    Amend the analysis accompanying R.C.M. 1104(a) by inserting the 
following before the discussion of subsection (b):

    ``2000 Amendment: Subsection (a)(2)(A) was amended to implement 
the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial. R.C.M. 
1104(a)(2)(A) was amended to ensure that the military judge 
authenticates all verbatim records of trial at special courts-
martial.''

    Amend R.C.M. 1104(e) to read as follows:

    ``(e) Forwarding. After every court-martial, including a 
rehearing and new and other trials, the authenticated record shall 
be forwarded to the convening authority for initial review and 
action, provided that in case of a special court-martial in which a 
bad-conduct discharge or confinement for one year was adjudged or a 
general court-martial, the convening authority shall refer the 
record to the staff judge advocate or legal officer for 
recommendation under R.C.M. 1106 before the convening authority 
takes action.''

    Amend the analysis accompanying R.C.M. 1104(e) by inserting the 
following at the end of the discussion of subsection (e):

    ``2000 Amendment: Subsection (e) was amended to implement the 
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial. This 
amendment reflects the change to R.C.M. 1106 for special court-
martial with an adjudged sentence that includes confinement for one 
year.''

    Amend R.C.M. 1106(a) to read as follows:

    ``(a) In general. Before the convening authority takes action 
under R.C.M. 1107 on a record of trial by general court-martial or a 
record of trial by special court-martial which includes a sentence 
to a bad-conduct discharge or confinement for one year, that 
convening authority's staff judge advocate or legal officer shall, 
except as provided in subsection (c) of this rule, forward to the 
convening authority a recommendation under this rule.''

    Amend the analysis accompanying R.C.M. 1106(a) by inserting the 
following before the discussion of subsection (b):

    ``2000 Amendment: Subsection (e) was amended to implement the 
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial. This 
amendment requires all special courts-martial cases subject to 
appellate review to comply with this rule.''

    Amend the second paragraph of the Discussion accompanying R.C.M. 
1107(d)(1) to read as follows:

    ``When mitigating forfeitures, the duration and amounts of 
forfeiture may be changed as long as the total amount forfeited is 
not increased and neither the amount nor

[[Page 17635]]

duration of the forfeitures exceeds the jurisdiction of the court-
martial. When mitigating confinement or hard labor without 
confinement, the convening authority should use the equivalencies at 
R.C.M. 1003(b)(6) and (7), as appropriate. One form of punishment 
may be changed to a less severe punishment of a different nature, as 
long as the changed punishment is one that the court-martial could 
have adjudged. For example, a bad-conduct discharge adjudged by a 
special court-martial could be changed to confinement for up to one 
year (but not vice versa). A pretrial agreement may also affect what 
punishments may be changed by the convening authority''

    Amend R.C.M. 1107(d)(4) to read as follows:

    ``(4) Limitations on sentence based on record of trial. If the 
record of trial does not meet the requirements of R.C.M. 
1103(b)(2)(B) or (c)(1), the convening authority may not approve a 
sentence in excess of that which may be adjudged by a special court-
martial, or one which includes a bad-conduct discharge, confinement 
for more than six months, forfeiture of pay exceeding two-thirds pay 
per month, or any forfeiture of pay for more than six months.''


    Amend the analysis accompanying R.C.M. 1107(e) by inserting the 
following at the end of the discussion of subsection (e):

    ``2000 Amendment: Subsection (f)(1) was amended to implement the 
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial. R.C.M. 
1107(d)(4) was amended to include the additional limitations on 
sentence contained in Article 19, UCMJ.

    Amend R.C.M. 1109(e) and (e)(1) to read as follows:

    ``(e) Vacation of a suspended special court-martial sentence 
wherein a bad-conduct discharge or confinement for one year was not 
adjudged.
    (1) In general. Before vacating the suspension of a special 
court-martial punishment that does not include a bad-conduct 
discharge or confinement for one year, the special court-martial 
convening authority for the command in which the probationer is 
serving or assigned shall cause a hearing to be held on the alleged 
violation(s) of the conditions of suspension.''

    Amend the analysis accompanying R.C.M. 1109(e) by inserting the 
following at the end of the discussion of subsection (e):

    ``2000 Amendment: Subsection (e) was amended to implement the 
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial.''

    Amend R.C.M. 1109(f) and (f)(1) to read as follows:

    ``(f) Vacation of a suspended special court-martial sentence 
that includes a bad-conduct discharge or confinement for one year.
    (1) The procedure for the vacation of a suspended approved bad-
conduct discharge or of any suspended portion of an approved 
sentence to confinement for one year, shall follow that set forth in 
subsection (d) of this rule.''

    Amend the analysis accompanying R.C.M. 1109(f) by inserting the 
following at the end of the discussion of subsection (f):

    ``2000 Amendment: (f) Vacation of a suspended special court-
martial sentence that includes a bad-conduct discharge or 
confinement for one year. Subsection (f) was amended to implement 
the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial. This 
amendment reflects the decision to treat an approved sentence of 
confinement for one year, regardless of whether any period of 
confinement is suspended, as a serious offense, in the same manner 
as a suspended approved bad-conduct discharge at special courts-
martial under Article 72, UCMJ and R.C.M. 1109.''

    Amend the Discussion accompanying R.C.M. 1109(f) to read as 
follows:

    ``An officer exercising special court-martial jurisdiction may 
vacate any suspended punishments other than an approved suspended 
bad-conduct discharge or any suspended portion of an approved 
sentence to confinement for one year, regardless of whether they are 
contained in the same sentence as the bad-conduct discharge or 
confinement for one year. See Appendix 18 for a sample of a Report 
of Proceedings to Vacate Suspension of a Special Court-Martial 
Sentence including a bad-conduct discharge or confinement for one 
year under Article 72, UCMJ, and R.C.M. 1109 (DD Form 455).''

    Amend the title to Appendix to read as follows:

    ``Report of Proceedings to Vacate Suspension of a General Court-
Martial or of a Special Court-Martial Sentence Including a Bad-
Conduct Discharge or Confinement for One Year Under Article 72, 
UCMJ, and R.C.M. 1109 (DD Form 455).''

    Amend R.C.M. 1110(a) to read as follows:

    ``(a) In general. After any general court-martial, except one in 
which the approved sentence includes death, and after any special 
court-martial in which the approved sentence includes a bad-conduct 
discharge or confinement for one year, the accused may waive or 
withdraw appellate review.''

    Amend the analysis accompanying R.C.M. 1110(a) by inserting the 
following at the end of the discussion of subsection (a):

    ``2000 Amendment: Subsection (a) was amended to implement the 
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P.L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial.''

    Amend the Discussion accompanying R.C.M. 1110(a) to read as 
follows:

    ``Appellate review is not available for special courts-martial 
in which a bad-conduct discharge or confinement for one year was not 
adjudged or approved or for summary courts-martial. Cases not 
subject to appellate review, or in which appellate review is waived 
or withdrawn, are reviewed by a judge advocate under R.C.M. 1112. 
Such cases may also be submitted to the Judge Advocate General for 
review. See R.C.M. 1201(b)(3). Appellate review is mandatory when 
the approved sentence includes death.''

    Amend R.C.M. 1111(b) to read as follows:

    ``(1) Cases including an approved bad-conduct discharge or 
confinement for one year. If the approved sentence of a special 
court-martial includes a bad-conduct discharge or confinement for 
one year, the record shall be disposed of as provided in subsection 
(a) of this rule.
    (2) Other cases. The record of trial by a special court-martial 
in which the approved sentence does not include a bad-conduct 
discharge or confinement for one year shall be forwarded directly to 
a judge advocate for review under R.C.M. 1112. Four copies of the 
order promulgating the result of trial shall be forwarded with the 
record of trial, unless otherwise prescribed by regulations of the 
Secretary concerned.''

    Amend the analysis accompanying R.C.M. 1111(b) by inserting the 
following at the end of the discussion:

    ``2000 Amendment: R.C.M. 1111(b) was amended to implement the 
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in 
section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial. The 
amendment ensures all special courts-martial not requiring appellate 
review are reviewed by a judge advocate under R.C.M. 1112.''

    Amend R.C.M. 1112(a)(2) to read as follows:

    ``Each special court-martial in which the accused has waived or 
withdrawn appellate review under R.C.M. 1110 or in which the 
approved sentence does not include a bad-conduct discharge or 
confinement for one year; and''

    Amend the analysis accompanying R.C.M. 1112 by inserting the 
following at the end of the discussion:

    ``2000 Amendment: R.C.M. 1112(a)(2) was amended to implement the 
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained in

[[Page 17636]]

section 577 of the National Defense Authorization Act for Fiscal 
Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing the 
jurisdictional maximum punishment at special courts-martial. The 
amendment ensures all special court-martials not requiring appellate 
review are reviewed by a judge advocate under R.C.M. 1112.''

    Amend Page A8-19, Left Margin Entry to Note 100 to read as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Advice in GCMs and SPCMs in which BCD    [Note 100. In cases subject to
 or confinement for one year is           review by a Court of Criminal
 adjudged                                 Appeals, the following advice
                                          should be given. In other
                                          cases proceed to Note 101 or
                                          102 as appropriate.]
------------------------------------------------------------------------


    Amend Page A8-21, Left Margin Entry to Note 102 to read as follows:


------------------------------------------------------------------------
 
------------------------------------------------------------------------
SPCM not involving a BCD or confinement  [Note 102. In special courts-
 for one year.                            martial not involving BCD or
                                          confinement for one year, the
                                          following advice should be
                                          given.]
------------------------------------------------------------------------


    Amend Page A17-4, first note to paragraph d, to read as follows:


    ``[Note. Orders promulgating the vacation of the suspension of a 
dismissal will be published by departmental orders of the Secretary 
concerned. Vacations of any other suspension of a general court-
martial sentence, or of a special court-martial sentence which as 
approved and affirmed includes a bad-conduct discharge or 
confinement for one year, will be promulgated by the officer 
exercising general court-martial jurisdiction over the probationer 
(Article 72(b)). The vacation of suspension of any other sentence 
may be promulgated by an appropriate convening authority under 
Article 72(c). See R.C.M. 1109.]''


    Dated: March 29, 2000.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 00-8181 Filed 4-3-00; 8:45 am]
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