[Federal Register Volume 65, Number 237 (Friday, December 8, 2000)]
[Notices]
[Pages 76998-76999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-31247]


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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial; Proposed Amendments

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

ACTION: Notice of summary of public comment received regarding proposed 
amendments to the Manual for Courts-Martial, United States, (2000 ed.).

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SUMMARY: The JSC is forwarding final proposed amendments to the Manual 
for Courts-Martial, United States, (2000 ed.) (MCM) to the Department 
of Defense. The proposed changes, resulting from the JSC's 2000 annual 
review of the MCM, concern the rules of procedure applicable in trials 
by 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.

ADDRESSES: Comments and materials received from the public are 
available for inspection or copying at the U.S. Air Force, Air Force 
Legal Services Agency, Military Justice Division, Room 202, 112 Luke 
Avenue, Bolling Air Force Base, Washington, DC 20332-8000, between 8 
a.m. and 3:30 p.m., Monday through Friday, except Federal Holidays.

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:

Background

    On May 15, 2000, the JSC published a Notice of Proposed Amendments 
to the Manual for Courts-Martial, (MCM) United States, (2000 ed.). On 
June 15, 2000, the JSC also published a Notice of Public Meeting to 
receive comment on its 2000 draft annual review of the Manual for 
Courts-Martial. On June 28, 2000, the public meeting was held. Three 
individuals attended and one individual provided oral comment. The JSC 
also received one letter commenting on the proposed amendments.

Purpose

    The proposed changes concern the rules of procedure applicable in 
trials by courts-martial. More specifically, the proposed changes: (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.

Discussion of Comments and Changes

    No substantive comment was received on the proposed amendments 
except for an expressed desire for a fuller rationale accompanying 
future changes. The JSC has considered the oral and written comment 
provided and is satisfied that the proposed amendments are appropriate 
to implement. However, the JSC has reexamined the analysis accompanying 
R.C.M. 707 and has modified it to more fully explain why the amendment 
was made. The JSC will forward the public comment and the proposed 
amendments, as modified, to the Department of Defense.
    The oral and written comment, from the same individual, also 
discussed the new provision of the JSC's standard operating procedures 
requiring the JSC to invite members of the public to submit proposals 
as well as the form of that invitation in the May 15, 2000 Federal 
Register Notice of Proposed Amendments. The invitation provided that 
``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.'' The invitation 
also said that ``[i]incomplete submissions will not be considered.'' 
The writer said that this last sentence would have a chilling effect on 
the submission of proposals. The writer also said that individuals or 
organizations may well perceive problems in the current MCM but may not 
have the time or expertise to prepare the type of submission required 
by the JSC. The writer believed that ideas for change should not be 
discouraged and that the burden should fall to the JSC, rather than to 
the public, to not only consider ideas for change but in addition take 
it upon itself to prepare full proposals to implement any ideas for 
change submitted which are deemed meritorious. The writer also believed 
that the invitation to the public should be clarified to note that 
proposals from the public which are not submitted within the public 
comment period will still be considered, but may not be able to be 
included in the next Annual Review. The writer recommended that the 
JSC's procedures be amended to implement the suggestions and that the 
rules pertaining to public participation in the MCM rulemaking process 
be included in appropriate DOD Directives published in the Code of 
Federal Regulations and in the MCM. The JSC has considered these 
comments and have decided to change the text of the invitation in next 
year's notice. To best serve the JSC in understanding the nature of the 
proposals, yet not chill their submission, the invitation will be 
changed to read ``incomplete proposals may not be considered'' as 
opposed to ``will not be considered.'' The JSC will also receive public 
proposals at any time but proposals received outside the public comment 
period may not be received in time to be considered in the next Annual 
Review. The JSC has concluded that it is not necessary to incorporate 
the new rules inviting public proposals into DoD Directive 5500.17, 
Role and Responsibilities of the Joint Service Committee (JSC) on 
Military Justice or the MCM. The DoD Directive will be published in the 
MCM in future editions.

Proposed Amendments After Consideration of Public Comment Received

    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 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 the Government, the defense, on request of trial 
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

[[Page 76999]]

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 to also take into 
consideration the protections afforded by the new psychotherapist-
patient privilege under Mil. R. Evid. 513.''
    Amend the analysis accompanying R.C.M. 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 an 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, United States v. 
Tualla, 52 M.J. 228, 231-32 (2000).''

    Dated: November 30, 2000.
L.M. Bynum,
Alternate OSD Federal Register, Liaison Officer, Department of Defense.
[FR Doc. 00-31247 Filed 12-7-00; 8:45 am]
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