[Federal Register Volume 65, Number 94 (Monday, May 15, 2000)]
[Notices]
[Pages 30964-30965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12069]


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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial

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

ACTION: Notice of proposed amendments to the Manual for Courts-Martial, 
United States, (1998 ed.)

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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 are the 2000 draft annual review required by the MCM 
and DoD Directive 5500.17. ``Role and Responsibilities of the Joint 
Service Committee (JSC) on Military Justice,'' May 8, 1996. The 
proposed changes concern the rules of procedure applicable in trials by 
court-martial. More specifically, the proposed changes would: (1) Add 
references to Military Rule of Evidence 513, Psychotherapist-patient 
privilege, in Rule for Courts-Martial (R.C.M.) 701, Discovery: (2) 
clarify the analysis accompanying R.C.M. 707, Speedy trial, in light of 
current case law; and (3) clarify R.C.M. 1003 and R.C.M. 1107, 
governing the authority of a court-martial to adjudge, and the 
convening authority to approve, the combination of both a fine and 
forfeitures at summary and special courts-martial.
    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.
    In accordance with paragraph III B 4 of the Internal Organization 
and Operating Procedures of the Joint Service Committee on Military 
Justice (2 March 2000), the JSC invites members of the public to 
suggest changes to the Manual for Courts-Martial in accordance with the 
herein described format.
    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 person.

DATES: Comments on the proposed changes must be received no later than 
July 31, 2000 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.

SUPPLEMENTARY INFORMATION: The proposed amendments to the Manual for 
Courts-Martial are as follows:

    Amend the Discussion following R.C.M. 701(a)(2)(B) to read as 
follows:
    ``For specific rules concerning certain mental examinations of 
the accused or third party patients, see R.C.M. 701(f), R.C.M. 706, 
Mil. R. Evid. 302 and Mil. R. Evid. 513.''
    Amend R.C.M. 701(b)(4) to read as follows:
    ``Reports of examination and tests. If the defense requests 
disclosure under subsection (a)(2)(B) of this rule, upon compliance 
with such request by he Government, the defense, on request of trail 
counsel, shall (except as provided in R.C.M. 706, Mil. R. Evid. 302 
and Mil. R. Evid. 513) permit the trial counsel to inspect any 
results or reports of physical or mental examinations and of 
scientific tests or experiments made in connection with the 
particular case, or copies thereof, which are within the possession, 
custody, or control of the defense which the defense intends to 
introduce as evidence in the defense case-in-chief at trial or which 
were prepared by a witness whom the defense intends to call at trial 
when the results or reports relate to that witness' testimony.''
    Amend the Analysis accompanying R.C.M. 701(b) by inserting the 
following prior to the current paragraph:
    ``2000 Amendment: Subsection (b)(4)was amended in light of Mil. 
R. Evid. 513.''
    Amend the analysis accompanying R.CM. 707(a) by inserting the 
following paragraph after the second full paragraph:
    ``2000 Analysis Amendment: Burton and its progeny were re-
examined in 1993 when the Court of Military Appeals specifically 
overruled Burton and reinstated the earlier rule from United States 
v. Tibbs, 15 C.M.A. 350, 35 C.M.R. 322 (1965). United States v. 
Kossman, 38 M.J. 258 (C.M.A. 1993). In Kossman, the Court reinstated 
the `reasonable diligence' standard in determining whether the 
prosecution's progress toward trial for a confined accused was 
sufficient to satisfy the speedy trial requirement of Article 10, 
UCMJ.''
    Amend R.C.M. 1003(b)(3) to read as follows:
    ``Fine. Any court-martial may adjudge a fine in lieu of or in 
addition to forfeitures. Special and summary courts-martial may not 
adjudge any fine or combination of fine and forfeitures in excess of 
the total amount of forfeitures that may be adjudged in that case. 
In order to enforce collection, a fine may be accompanied by a 
provision in the sentence that, in the event the fine is not paid, 
the person fined shall, in addition to any period of confinement 
adjudged, be further confined until a fixed period considered and 
equivalent punishment to the fine has expired. The total period of 
confinement so adjudged shall not exceed the jurisdictional 
limitations of the court-martial;''
    Amend the Discussion accompanying R.C.M. 1003(b)(3) by adding 
the following after the second paragraph:
    ``Where the sentence adjudged at a special court-martial 
includes a fine, see R.C.M. 1107(d)(5) for limitations on convening 
authority action on the sentence.''
    Amend the Analysis accompanying R.C.M. 1003(b)(3) by inserting 
the following before the discussion of subsection (b)(4):
    ``2000 Amendment: The amendment clearly defines the authority of 
special and summary courts-martial to adjudge both fines and 
forfeitures. See generally, United States v. Tualla, 52 M.J. 228 
(2000).''
    Add R.C.M. 1107(d)(5) as follows:
    ``Limitations on sentence of a special court-martial where a 
fine has been adjudged. A convening authority may not approve in its 
entirety a sentence adjudged at a special court-martial where, when 
approved, the cumulative impact of the fine and forfeitures, whether 
adjudged or by operation of Article 58b, UCMJ, would exceed the 
jurisdictional maximum dollar amount of forfeitures that may be 
adjudged at that court-martial.''
    Amend the Analysis accompanying R.C.M. 1107(d) by inserting the 
following before the discussion of subsection (e):
    ``2000 Amendment: Subparagraph (d)(5). This subparagraph is new. 
The amendment addresses the impact of Article 58b, UCMJ. In special 
courts-martial, where the cumulative impact of a fine and 
forfeitures, whether adjudged or by operation of Article 58b, would 
otherwise exceed the total dollar amount of forfeitures that could 
be adjudged at the special court-martial, the fine and/or adjudged 
forfeitures should be disapproved or decreased accordingly. See 
generally,

[[Page 30965]]

United States v. Tualla, 52 M.J. 228, 231-32 (2000).''
    Members of the public are hereby invited to submit proposals for 
changes to the Manual for Courts-Martial for consideration by the 
JSC. All submissions should be received by the close of the public 
comment period in order to be considered in the next annual review 
cycle. Proposals should include reference to the specific provision 
you wish changed, a rationale for the proposed change, and specific 
and detailed proposed language to replace the current language. 
Incomplete submissions will not be considered. The individual or 
agency submitting each proposal will be notified in writing whether 
the JSC voted to decline the proposal as not within the JSC's 
cognizance, reject it, table it, or accept it.

    Dated: May 9, 2000.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 00-12069 Filed 5-12-00; 8:45 am]
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