[Federal Register Volume 67, Number 74 (Wednesday, April 17, 2002)]
[Presidential Documents]
[Pages 18773-18792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-9536]


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                         Presidential Documents 
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  Federal Register / Vol. 67, No. 74 / Wednesday, April 17, 2002 / 
Presidential Documents  

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 Title 3--
 The President

[[Page 18773]]

                Executive Order 13262 of April 11, 2002

                
2002 Amendments to the Manual for Courts-Martial, 
                United States

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, including chapter 47 of title 10, United 
                States Code (Uniform Code of Military Justice, 10 
                U.S.C. 801-946), and in order to prescribe amendments 
                to the Manual for Courts-Martial, United States, 
                prescribed by Executive Order 12473, as amended, it is 
                hereby ordered as follows:

                Section 1. Thirty days after the date of this Executive 
                Order, the provisions of Federal Rule of Evidence 415, 
                adopted September 13, 1994, will no longer be 
                applicable to the Military Rules of Evidence. This 
                evidentiary rule became applicable to courts-martial on 
                January 6, 1996, pursuant to Military Rule of Evidence 
                1102.

                Sec. 2. The last subparagraph of paragraph 4, of Part 
                I, of the Manual for Courts-Martial, United States, is 
                amended as follows:

                    ``The Manual shall be identified as ``Manual for 
                Courts-Martial, United States (2002 edition).'' Any 
                amendments to the Manual made by Executive Order shall 
                be identified as ``2002'' Amendments to the Manual for 
                Courts-Martial, United States'' ; ``2002'' being the 
                year the Executive Order was signed. If two or more 
                Executive Orders amending the Manual are signed during 
                the same year, then the second and any subsequent 
                Executive Orders will be identified by placing a small 
                case letter of the alphabet after the last digit of the 
                year beginning with ``a'' for the second Executive 
                Order and continuing in alphabetic order for subsequent 
                Executive Orders.''.

                Sec. 3. Part II of the Manual for Courts-Martial, 
                United States, is amended as follows:

                    a. R.C.M. 201(f)(2)(B) is amended to read as 
                follows:

   ``(i) 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.

   ``(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 the 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

[[Page 18774]]

                    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.''

                    b. R.C.M. 701(b)(4) is amended to read as follows:

   ``(4) 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, that are within 
the possession, custody, or control of the defense that the defense intends 
to introduce as evidence in the defense case-in-chief at trial or that were 
prepared by a witness whom the defense intends to call at trial when the 
results or reports relate to that witness' testimony.''

                    c. R.C.M. 806 is amended by adding at the end the 
                following new subsection (d):

   ``(d) Protective orders. The military judge may, upon request of any 
party or sua sponte, issue an appropriate protective order, in writing, to 
prevent parties and witnesses from making extrajudicial statements that 
present a substantial likelihood of material prejudice to a fair trial by 
impartial members. For purposes of this subsection, ``military judge'' does 
not include the president of a special court-martial without a military 
judge.''.

                    d. R.C.M. 1001(b)(3)(A) is amended to read as 
                follows:

   ``(A) In general. The trial counsel may introduce evidence of military 
or civilian convictions of the accused. For purposes of this rule, there is 
a ``conviction'' in a court-martial case when a sentence has been adjudged. 
In a civilian case, a ``conviction'' includes any disposition following an 
initial judicial determination or assumption of guilt, such as when guilt 
has been established by guilty plea, trial, or plea of nolo contendere, 
regardless of the subsequent disposition, sentencing procedure, or final 
judgment. However, a ``civilian conviction'' does not include a diversion 
from the judicial process without a finding or admission of guilt; expunged 
convictions; juvenile adjudications; minor traffic violations; foreign 
convictions; tribal court convictions; or convictions reversed, vacated, 
invalidated or pardoned because of errors of law or because of subsequently 
discovered evidence exonerating the accused.''.

                    e. R.C.M. 1003(b)(3) is amended to read as follows:

   ``(3) 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;''

                    f. R.C.M. 1003(b)(7) is amended to read as follows:

   ``(7) Confinement. The place of confinement shall not be designated by 
the court-martial. When confinement for life is authorized, it may be with 
or without eligibility for parole. A court-martial shall not adjudge a 
sentence to solitary confinement or to confinement without hard labor;''.

                    g. R.C.M. 1004(e) is amended to read as follows:

   ``(e) Other penalties. Except for a violation of Article 106, when death 
is an authorized punishment for an offense, all other punishments 
authorized under R.C.M. 1003 are also authorized for that offense, 
including

[[Page 18775]]

confinement for life, with or without eligibility for parole, and may be 
adjudged in lieu of the death penalty, subject to limitations specifically 
prescribed in this Manual. A sentence of death includes a dishonorable 
discharge or dismissal as appropriate. Confinement is a necessary incident 
of a sentence of death, but not a part of it.''

                    h. R.C.M. 1006(d)(4)(B) is amended to read as 
                follows:

   ``(B) Confinement for life, with or without eligibility for parole, or 
more than 10 years. A sentence that includes confinement for life, with or 
without eligibility for parole, or more than 10 years may be adjudged only 
if at least three-fourths of the members present vote for that sentence.''

                    i. R.C.M. 1009(e)(3)(B)(ii) is amended to read as 
                follows:

   ``(ii) In the case of a sentence which includes confinement for life, 
with or without eligibility for parole, or more than 10 years, more than 
one-fourth of the members vote to reconsider; or''.

                    j. R.C.M. 1103(b)(2)(B)(i) is amended 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 that may be adjudged 
by a special court-martial; or''.

                    k. R.C.M. 1103(c) is amended 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.''.

                    l. R.C.M. 1103(f)(1) is amended to read as follows:

   ``(1) Approve only so much of the sentence that could be adjudged by a 
special court-martial, except that a bad-conduct discharge, confinement for 
more than six months, or forfeiture of two-thirds pay per month for more 
than six months, may not be approved; or''.

                    m. R.C.M. 1104(a)(2)(A) is amended 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 a bad-conduct discharge, confinement for more than six 
months, or forfeiture of pay for more than six months, was not adjudged 
shall be authenticated in accordance with regulations of the Secretary 
concerned.''

                    n. R.C.M. 1104(e) is amended 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

[[Page 18776]]

recommendation under R.C.M. 1106 before the convening authority takes 
action.''.

                    o. R.C.M. 1106(a) is amended 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 that 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.''.

                    p. R.C.M. 1107(d)(4) is amended 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 that 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.''.

                    q. R.C.M. 1107(d) is amended by adding at the end 
                the following new paragraph:

   ``(5) 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 when, if approved, the 
cumulative impact of the fine and forfeitures, whether adjudged or by 
operation of Article 58b, would exceed the jurisdictional maximum dollar 
amount of forfeitures that may be adjudged at that court-martial.''.

                    r. R.C.M. 1109(e) and (e)(1) are amended 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.''.

                    s. R.C.M. 1109(f) and (f)(1) are amended 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.''.

                    t. R.C.M. 1110(a) is amended 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.''.

                    u. R.C.M. 1111(b) is amended 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.''.

[[Page 18777]]

                    v. R.C.M. 1112(a)(2) is amended to read as follows:

   ``(2) 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''.

                    w. R.C.M 1305(d)(2) is amended to read as follows:

   ``(2) Forwarding to the convening authority. The original and one copy 
of the record of trial shall be forwarded to the convening authority after 
compliance with subsection (d)(1) of this rule.''.

                Sec. 4. Part III of the Manual for Courts-Martial, 
                United States, is amended in Mil. R. Evid. 615 by 
                striking the period at the end of the rule and adding 
                ``, or (4) a person authorized by statute to be present 
                at courts-martial, or (5) any victim of an offense from 
                the trial of an accused for that offense because such 
                victim may testify or present any information in 
                relation to the sentence or that offense during the 
                presentencing proceedings.''.

                Sec. 5. Part IV of the Manual for Courts-Martial, 
                United States, is amended as follows:

                    a. All ``Sample specification(s)'' subparagraphs in 
                the Punitive Articles (Part IV, M.C.M.) are amended by 
                striking ``-------------- 19----'' and inserting ``----
                ---------- 20----.''.
                    b. Paragraph 27e(1)(a) is amended to read as 
                follows:

   ``(a) of a value of $500.00 or less. Bad-conduct discharge, forfeiture 
of all pay and allowances, and confinement for 6 months.''.

                    c. Paragraph 27e(1)(b) is amended to read as 
                follows:

   ``(b) of a value of more than $500.00 or any firearm or explosive. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 5 years.''.

                    d. Paragraph 27f(3) is amended to read as follows:

   ``(3) Dealing in captured or abandoned property. In that ---------- 
(personal jurisdiction data), did, (at/on board - location), on or about --
-------- 20 ----------, (buy) (sell) (trade) (deal in) (dispose of) (------
----------) certain (captured) (abandoned) property, to wit: ----------, (a 
firearm) (an explosive), of a value of (about) $----------, thereby 
(receiving) (expecting) a (profit) (benefit) (advantage) to (himself/
herself) (----------, his/her accomplice) (----------, his/her brother) (--
--------------).''.

                    e. Strike paragraph 31c(6).
                    f. Paragraph 43e(1), is amended to read as follows:

   ``(1) Article 118(1) or (4)--death. Mandatory minimum--imprisonment for 
life with eligibility for parole.''.

                    g. Paragraph 45e(3) is amended to read as follows:

   ``(3) Carnal knowledge with a child under the age of 12 years at the 
time of the offense. Dishonorable discharge, forfeiture of all pay and 
allowances, and confinement for life without eligibility for parole.''.

                    h. Paragraph 46c(1)(h) is amended by adding at the 
                end the following new clause:

   ``(vi) Credit, Debit, and Electronic Transactions. Wrongfully engaging 
in a credit, debit, or electronic transaction to obtain goods or money is 
an obtaining- type larceny by false pretense. Such use to obtain goods is 
usually a larceny of those goods from the merchant offering them. Such use 
to obtain money or a negotiable instrument (e.g., withdrawing cash from an 
automated teller or a cash advance from a bank) is usually a larceny of 
money from the entity presenting the money or a negotiable instrument. For 
the purpose of this section, the term 'credit, debit, or electronic 
transaction' includes the use of an instrument or device, whether known as 
a credit card, debit card, automated teller machine (ATM) card or by any 
other name, including access devices such as code, account

[[Page 18778]]

number, electronic serial number or personal identification number, issued 
for the use in obtaining money, goods, or anything else of value.''.

                    i. Paragraph 51e(1) is amended to read as follows:

   ``(1) By force and without consent. Dishonorable discharge, forfeiture 
of all pay and allowances, and confinement for life without eligibility for 
parole.''.

                    j. Paragraph 51e(3) is amended to read as follows:

   ``(3) With a child under the age of 12 years at the time of the offense. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for life without eligibility for parole.''

                    k. Paragraph 62c is amended to read as follows:

   ``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 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 lower 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 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.

[[Page 18779]]

   ``(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.''.

                    l. Paragraph 92e is amended to read as follows:

   ``e. Maximum punishment. Dishonorable discharge, forfeiture of all pay 
and allowances, and confinement for life without eligibility for parole.''.

                    m. Paragraphs 32e, 33e, 46c(1)(g)(iii), 46e, 49e, 
                52e, 58e, 78e and 106e are amended by striking 
                ``$100.00'' each place it appears and inserting 
                ``$500.00''.

                Sec. 6. These amendments shall take effect on May 15, 
                2002.

                    a. The amendments made to Rules for Courts-Martial 
                806(d) and 1001(b)(3)(A) shall only apply in cases in 
                which arraignment has been completed on or after May 
                15, 2002.
                    b. The amendments made to Rules for Courts- Martial 
                1003(b)(7), 1004(e), 1006(d)(4)(B), and 
                1009(e)(3)(B)(ii) shall only apply to offenses 
                committed after November 18, 1997. In cases not 
                involving these amendments, the maximum punishment for 
                an offense committed prior to May 15, 2002, shall not 
                exceed the applicable maximum in effect at the time of 
                the commission of such offense. Provided further, that 
                for offenses committed prior to May 15, 2002, for which 
                a sentence is adjudged on or after May 15, 2002, if the 
                maximum punishment authorized in this Manual is less 
                than that previously authorized, the lesser maximum 
                authorized punishment shall apply.
                    c. The amendment made to Military Rules of Evidence 
                615 shall apply only in cases in which arraignment has 
                been completed on or after May 15, 2002.
                    d. Nothing in these amendments shall be construed 
                to make punishable any act done or omitted prior to May 
                15, 2002, that was not punishable when done or omitted.
                    e. Nothing in these amendments shall be construed 
                to invalidate any nonjudicial punishment proceeding, 
                restraint, investigation, referral of charges, trial in 
                which arraignment occurred, or other action begun prior 
                to May 15, 2002, and any such nonjudicial punishment, 
                restraint, investigation, referral of charges, trial, 
                or other action may proceed in the same manner and with 
                the same effect as if these amendments had not been 
                prescribed.

                    (Presidential Sig.)B

                THE WHITE HOUSE,

                    April 11, 2002.

                Billing code 3195-01-P

[[Page 18780]]

                CHANGES TO THE DISCUSSION ACCOMPANYING THE MANUAL FOR 
                COURTS-MARTIAL, UNITED STATES

                a. The Discussion following the Preamble is amended by 
                adding the following at the end of the Discussion:

                    ``The amendment to paragraph 4 of the Preamble is 
                intended to address the possibility of more frequent 
                amendments to the Manual and the arrival of the 21st 
                century. In the event that multiple editions of the 
                Manual are published in the same year, the numbering 
                and lettering of the edition should match that of the 
                most recent Executive Order included in the 
                publication.''

                b. The seventh paragraph of the Discussion following 
                R.C.M. 601(e)(1) is amended to read as follows:

                    ``The convening authority should acknowledge by an 
                instruction that a bad-conduct discharge, confinement 
                for more than six months, or forfeiture of pay for more 
                than six months, may not 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.''.

                c. The Discussion following R.C.M. 701(a)(2)(B) is 
                amended 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.''

                d. The ninth paragraph of the Discussion following 
                R.C.M. 806(b) is amended to read as follows:

                    ``There are other methods of protecting the 
                proceedings from harmful effects of publicity, 
                including a thorough voir dire (see R.C.M. 912), and, 
                if necessary, a continuance to allow the harmful 
                effects of publicity to dissipate. See R.C.M. 
                906(b)(1). Other methods that may occasionally be 
                appropriate and which are usually preferable to closing 
                a session include: directing members not to read, 
                listen to, or watch any accounts concerning the case; 
                issuing a protective order under R.C.M. 806(d); and 
                selecting members from recent arrivals in the command, 
                or from outside the immediate area. See R.C.M. 
                503(a)(3). In more extreme cases, the place of trial 
                may be changed (see R.C.M. 906(b)(11), or members may 
                be sequestered.

                e. The following Discussion is added after R.C.M. 
                806(d):

                    ``A protective order may proscribe extrajudicial 
                statements by counsel, parties, and witnesses that 
                might divulge prejudicial matter not of public record 
                in the case. Other appropriate matters may also be 
                addressed by such a protective order. Before issuing a 
                protective order, the military judge must consider 
                whether other available remedies would effectively 
                mitigate the adverse effects that any publicity might 
                create, and consider such an order's likely 
                effectiveness in ensuring an impartial court-martial 
                panel. A military judge should not issue a protective 
                order without first providing notice to the parties and 
                an opportunity to be heard. The military judge must 
                state on the record the reasons for issuing the 
                protective order. If the reasons for issuing the order 
                change, the military judge may reconsider the continued 
                necessity for a protective order.''

                f. The first paragraph of the Discussion following 
                R.C.M. 808 is amended 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 
                conferences, arguments, and rulings and instructions by 
                the military judge, should be recorded.''

[[Page 18781]]

                g. The Discussion following R.C.M. 1001(b)(3)(A) is 
                amended by adding the following at the end of the 
                Discussion:

                    ``Whether a civilian conviction is admissible is 
                left to the discretion of the military judge. As stated 
                in the rule, a civilian ``conviction'' includes any 
                disposition following an initial judicial determination 
                or assumption of guilt regardless of the sentencing 
                procedure and the final judgment following probation or 
                other sentence. Therefore, convictions may be 
                admissible regardless of whether a court ultimately 
                suspended judgment upon discharge of the accused 
                following probation, permitted withdrawal of the guilty 
                plea, or applies some other form of alternative 
                sentencing. Additionally, the term ``conviction'' need 
                not be taken to mean a final judgment of conviction and 
                sentence.''

                h. The sixth paragraph of the Discussion following 
                R.C.M. 1003(b)(2) is amended 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.''.

                i. The Discussion following R.C.M. 1003(b)(3) is 
                amended by adding at the end the following 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.''

                j. The Discussion following R.C.M. 1003(b)(8) is 
                amended by adding the following at the end of the 
                Discussion:

                    ``See Article 56a.''

                k. The Discussion following R.C.M. 1003(c)(4) is 
                amended by striking ``R.C.M. 1107(d)(3)'' and inserting 
                ``R.C.M. 1107(d)(4).''

                l. The Discussion following R.C.M. 1006(c) is amended 
                to read as follows:

                    ``A proposal should state completely each kind and, 
                where appropriate, amount of authorized punishment 
                proposed by that member. For example, a proposal of 
                confinement for life would state whether it is with or 
                without eligibility for parole. See R.C.M. 1003(b).''

                m. The second paragraph of the Discussion following 
                R.C.M. 1107(d)(1) is amended 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 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.''.

                n. The Discussion following R.C.M. 1109(f) is amended 
                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).''.

[[Page 18782]]

                o. The Discussion following R.C.M. 1110(a) is amended 
                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.''.

                    CHANGES TO APPENDIX 8, GUIDE FOR GENERAL AND 
                SPECIAL COURTS-MARTIAL, MANUAL FOR COURTS-MARTIAL, 
                UNITED STATES

                Appendix 8, is amended--

                a. by amending the left margin entry to Note 100 to 
                read as follows:

                    ``Advice in GCMs and SPCMs in which BCD or 
                confinement for one year is adjudged'';

                b. by amending Note 100 to read as follows:

                    ``[Note 100. In cases subject to review by a Court 
                of Criminal Appeals, the following advice should be 
                given. In other cases proceed to Note 101 or 102 as 
                appropriate.]'';

                c. by amending the left margin entry to Note 102 to 
                read as follows:

                    ``SPCM not involving a BCD or confinement for one 
                year''; and

                d. by amending Note 102 to read as follows:

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

                    CHANGES TO THE MAXIMUM PUNISHMENT CHART OF THE 
                MANUAL FOR COURTS-MARTIAL, UNITED STATES

                Appendix 12, the Maximum Punishment Chart, is amended--

                a. by striking the item relating to Article 103 and 
                inserting:

                    ``103 Captured, abandoned property; failure to 
                secure, etc. Of value of $500.00 or less . . . . . BCD 
                6 mos. Total
                    Of value of more than $500.00 . DD, BCD 5 yrs. 
                Total
                    Any firearm or explosive . . . . . . DD, BCD 5 yrs. 
                Total
                    Looting, pillaging . . . . . . . . . . . . DD, BCD 
                Life4 Total''; and

                b. in the items relating to Articles 108, 109, 121, 
                123a, 126, 132, and 134 (False Pretenses, obtaining 
                services under; and Stolen Property, knowingly 
                receiving, buying, concealing), by striking ``100.00'' 
                each place it appears and inserting ``$500.00''.

                    CHANGES TO THE GUIDE FOR PREPARATION OF RECORD OF 
                TRIAL WHEN A VERBATIM RECORD IS NOT REQUIRED, MANUAL 
                FOR COURTS-MARTIAL, UNITED STATES

                Appendix 13 is amended--

                 a. in the third subparagraph of paragraph a, by 
                replacing ``1-inch margin'' with ``one-inch margin'' 
                and replacing ``left hand'' with ``left-hand''.

                    CHANGES TO THE GUIDE FOR PREPARATION OF RECORD OF 
                TRIAL WHEN A VERBATIM RECORD IS REQUIRED, MANUAL FOR 
                COURTS-MARTIAL, UNITED STATES

                Appendix 14, is amended--

                a. at page A14-6, by amending the second bracketed 
                format under the third note to read as follows:

                    ``[The (court-martial) (session) was (adjourned) 
                (recessed) at -------- hours, ----------------.]''.

                    CHANGES TO APPENDIX 17, FORMS FOR COURT-MARTIAL 
                ORDERS, MANUAL FOR COURTS-MARTIAL, UNITED STATES

[[Page 18783]]

                The first note to paragraph d of Appendix 17 is amended 
                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 that 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.]''

                    CHANGES TO APPENDIX 18, REPORT OF PROCEEDINGS TO 
                VACATE SUSPENSION OF A GENERAL COURT-MARTIAL OR OF A 
                SPECIAL COURT-MARTIAL SENTENCE INCLUDING A BAD-CONDUCT 
                DISCHARGE UNDER ARTICLE 72, UCMJ, AND R.C.M. 1109 (DD 
                FORM 455), MANUAL FOR COURTS-MARTIAL, UNITED STATES

                The title to Appendix 18 is amended 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).''.

                    CHANGES TO THE ANALYSIS ACCOMPANYING THE MANUAL FOR 
                COURTS-MARTIAL, UNITED STATES.

                1. Changes to Appendix 21, the Analysis Accompanying 
                the Rules for Courts- Martial, United States (Part II, 
                MCM).

                a. The Analysis to R.C.M. 201(f) is amended by 
                inserting after the second paragraph the following new 
                paragraph:

                    ``2002 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.''.

                b. The Analysis to R.C.M. 701(b) is amended by 
                inserting after the discussion of the 1991 Amendment to 
                subsection (b)(2) the following new paragraph:

                    ``2002 Amendment: Subsection (b)(4) was amended to 
                take into consideration the protections afforded by the 
                new psychotherapist-patient privilege under Mil. R. 
                Evid. 513.''

                c. The Analysis to R.C.M. 707(a) is amended by 
                inserting after the second paragraph the following new 
                paragraph:

                    ``2002 Amendment: Burton and its progeny were re-
                examined in United States v. Kossman, 38 M.J. 258 
                (C.M.A. 1993), where the Court of Military Appeals 
                specifically overruled Burton and reinstated the 
                earlier rule from United States v. Tibbs, 15 C.M.A. 
                350, 353, 35 C.M.R. 322, 325 (1965). See Kossman, 38 
                M.J. at 262. 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.''

                d. The Analysis accompanying R.C.M. 806 is amended by 
                adding at the end the following new paragraphs:

                    ``2002 Amendment: Section (d) was added to codify 
                the military judge's power to issue orders limiting 
                trial participants' extrajudicial statements in 
                appropriate cases. See United States v. Garwood, 16 
                M.J. 863, 868 (N-M.C.M.R. 1983) (finding military judge 
                was justified in issuing restrictive order prohibiting 
                extrajudicial statements by trial participants), aff'd 
                on other grounds, 20 M.J. 148 (C.M.A. 1985), cert. 
                denied, 474 U.S. 1005 (1985);

[[Page 18784]]

                United States v. Clark, 31 M.J. 721, 724 (A.F.C.M.R. 
                1990) (suggesting, but not deciding, that the military 
                judge properly limited trial participants' 
                extrajudicial statements).
                    ``The public has a legitimate interest in the 
                conduct of military justice proceedings. Informing the 
                public about the operations of the criminal justice 
                system is one of the ``core purposes'' of the First 
                Amendment. In the appropriate case where the military 
                judge is considering issuing a protective order, absent 
                exigent circumstances, the military judge must conduct 
                a hearing prior to issuing such an order. Prior to such 
                a hearing the parties will have been provided notice. 
                At the hearing, all parties will be provided an 
                opportunity to be heard. The opportunity to be heard 
                may be extended to representatives of the media in the 
                appropriate case.
                    ``Section (d) is based on the first Recommendation 
                Relating to the Conduct of Judicial Proceedings in 
                Criminal Cases, included in the Revised Report of the 
                Judicial Conference Committee on the Operation of the 
                Jury System on the ``Free Press--Fair Trial'' Issue, 87 
                F.R.D. 519, 529 (1980), which was approved by the 
                Judicial Conference of the United States on September 
                25, 1980. The requirement that the protective order be 
                issued in writing is based on Rule for Courts-Martial 
                405(g)(6). Section (d) adopts a ``substantial 
                likelihood of material prejudice'' standard in place of 
                the Judicial Conference recommendation of a ``likely to 
                interfere'' standard. The Judicial Conference's 
                recommendation was issued before the Supreme Court's 
                decision in Gentile v. State Bar of Nev., 501 U.S. 1030 
                (1991). Gentile, which dealt with a Rule of 
                Professional Conduct governing extrajudicial 
                statements, indicates that a lawyer may be disciplined 
                for making statements that present a substantial 
                likelihood of material prejudice to an accused's right 
                to a fair trial. While the use of protective orders is 
                distinguishable from limitations imposed by a bar's 
                ethics rule, the Gentile decision expressly recognized 
                that the ``speech of lawyers representing clients in 
                pending cases may be regulated under a less demanding 
                standard than that established for regulation of the 
                press in Nebraska Press Ass'n v. Stuart, 427 U.S. 539 
                (1976), and the cases which preceded it.'' 501 U.S. at 
                1074. The Court concluded that ``the `substantial 
                likelihood of material prejudice' standard constitutes 
                a constitutionally permissible balance between the 
                First Amendment rights of attorneys in pending cases 
                and the State's interest in fair trials.'' Id. at 1075. 
                Gentile also supports the constitutionality of 
                restricting communications of non-lawyer participants 
                in a court case. Id. at 1072-73 (citing Seattle Times 
                Co. v. Rhinehart, 467 U.S. 20, 32-33 (1984)). 
                Accordingly, a protective order issued under the 
                ``substantial likelihood of material prejudice'' 
                standard is constitutionally permissible.
                    ``The first sentence of the discussion is based on 
                the committee comment to the Recommendations Relating 
                to the Conduct of Judicial Proceedings in Criminal 
                Cases. See 87 F.R.D. at 530. For a definition of 
                ``party,'' see R.C.M. 103(16). The second sentence of 
                the discussion is based on the first of the Judicial 
                Conference's recommendations concerning special orders. 
                See 87 F.R.D. at 529. The third sentence of the 
                discussion is based on the second of the Judicial 
                Conference's recommendations, id. at 532, and on United 
                States v. Salameh, 992 F.2d 445, 447 (2d Cir. 1993) 
                (per curiam), and In re Application of Dow Jones & Co., 
                842 F.2d 603, 611 & n.1 (2d Cir.), cert. denied, 488 
                U.S. 946 (1988). The fourth sentence is based on 
                Salameh, 992 F.2d at 447. The fifth sentence is based 
                on Rule for Courts-Martial 905(d).''.

                e. The Analysis accompanying R.C.M. 1001(b)(3)(A) is 
                amended by inserting the following at the end thereof:

                    ``2002 Amendment: As previously written, R.C.M. 
                1001(b)(3)(A) offered little guidance about what it 
                meant by ``civilian convictions.'' See, e.g., United 
                States v. White, 47 M.J. 139, 140 (C.A.A.F. 1997); 
                United States v. Barnes, 33 M.J. 468, 472-73 (C.M.A. 
                1992); United States v. Slovacek, 24 M.J. 140, 141 
                (CMA), cert. denied, 484 U.S. 855 (1987). The present 
                rule addresses this void and intends to give the 
                sentencing authority as

[[Page 18785]]

                much information as the military judge determines is 
                relevant in order to craft an appropriate sentence for 
                the accused.
                    ``Unlike most civilian courts, this rule does not 
                allow admission of more extensive criminal history 
                information, such as arrests. Use of such additional 
                information is not appropriate in the military setting 
                where court-martial members, not a military judge, 
                often decide the sentence. Such information risks 
                unnecessarily confusing the members.
                    ``The present rule clarifies the term 
                ``conviction'' in light of the complex and varying ways 
                civilian jurisdictions treat the subject. The military 
                judge may admit relevant evidence of civilian 
                convictions without necessarily being bound by the 
                action, procedure, or nomenclature of civilian 
                jurisdictions. Examples of judicial determinations 
                admissible as convictions under this rule include 
                accepted pleas of nolo contendere, pleas accepted under 
                North Carolina v. Alford, 400 U.S. 25 (1970), or 
                deferred sentences. If relevant, evidence of forfeiture 
                of bail that results in a judicial determination of 
                guilt is also admissible, as recognized in United 
                States v. Eady, 35 M.J. 15, 16 (C.M.A. 1992). While no 
                time limit is placed upon the admissibility of prior 
                convictions, the military judge should conduct a 
                balancing test to determine whether convictions older 
                than ten years should be admitted or excluded on the 
                basis of relevance and fundamental fairness.
                    ``The two central factors in this rule are (1) 
                judicial determination of guilt and (2) assumption of 
                guilt. Assumption of guilt is an all-inclusive term 
                meaning any act by the accused in a judicial proceeding 
                accepting, acknowledging, or admitting guilt. As long 
                as either factor is present, the ``conviction'' is 
                admissible, if relevant. Consequently, this rule 
                departs from the holding in United States v. Hughes, 26 
                M.J. 119, 120 (C.M.A. 1988), where the accused pleaded 
                guilty in a Texas court, but the judge did not enter a 
                finding of guilty under state law allowing ``deferred 
                adjudications.'' Under the present rule, the 
                ``conviction'' would be admissible because the accused 
                pleaded guilty in a judicial proceeding, 
                notwithstanding the fact that the state judge did not 
                enter a finding of guilty.
                    ``In contrast, ``deferred prosecutions,'' where 
                there is neither an admission of guilt in a judicial 
                proceeding nor a finding of guilty, would be excluded. 
                The rule also excludes expunged convictions, juvenile 
                adjudications, minor traffic violations, foreign 
                convictions, and tribal court convictions as matters 
                inappropriate for or unnecessarily confusing to courts-
                martial members. What constitutes a ``minor traffic 
                violation'' within the meaning of this rule is to be 
                decided with reference only to federal law, and not to 
                the laws of individual states. See U.S. Sentencing 
                Guidelines Manual Sec.  4A1.2(c)(2); ``What Constitutes 
                `Minor Traffic Infraction' Excludable From Calculation 
                of Defendant's Criminal History under United States 
                Sentencing Guideline Sec.  4A1.2(c)(2),'' 113 A.L.R. 
                Fed. 561 (1993).
                    ``Additionally, because of the lack of clarity in 
                the previous rule, courts sometimes turned to Mil. R. 
                Evid. 609 for guidance. See, e.g., Slovacek, 24 M.J. at 
                141. We note that because the policies behind Mil. R. 
                Evid. 609 and the present rule differ greatly, a 
                conviction that may not be appropriate for impeachment 
                purposes under Mil. R. Evid. 609, may nevertheless be 
                admissible under the present rule.
                    ``The Federal Sentencing Guidelines were consulted 
                when drafting the present rule. Although informed by 
                those guidelines, the present rule departs from them in 
                many respects because of the wide differences between 
                the courts-martial process and practice in federal 
                district court.''.

                f. The Analysis to R.C.M. 1003(b)(3) is amended by 
                adding at the end the following new paragraph:

                    ``2002 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).''

                g. The Analysis accompanying R.C.M. 1003(b)(7) is 
                amended by adding at the end the following new 
                paragraph:

[[Page 18786]]

                    ``2002 Amendment: This change resulted from the 
                enactment of Article 56a, UCMJ, in section 581 of the 
                National Defense Authorization Act for Fiscal Year 
                1998, Pub. L. No. 105-85, 111 Stat. 1629, 1759 
                (1997).''.

                h. The Analysis accompanying R.C.M. 1004(e) is amended 
                by adding at the end the following new paragraph:

                    ``2002 Amendment: This change resulted from the 
                enactment of Article 56a, UCMJ, in section 581 of the 
                National Defense Authorization Act for Fiscal Year 
                1998, Pub. L. No. 105-85, 111 Stat. 1629, 1759 
                (1997).''.

                i. The Analysis accompanying R.C.M. 1006(c) is amended 
                by adding at the end the following new paragraph:

                    ``2002 Amendment: This change to the discussion 
                resulted from the enactment of Article 56a, UCMJ, in 
                section 581 of the National Defense Authorization Act 
                for Fiscal Year 1998, Pub. L. No. 105-85, 111 Stat. 
                1629, 1759 (1997).''.

                j. The Analysis accompanying R.C.M. 1006(d) is amended 
                by inserting after the analysis of subsection 3(A) 
                following paragraph:

                    ``2002 Amendment: Subsection (d)(4)(B) was amended 
                as a result of the enactment of Article 56a, UCMJ, in 
                section 581 of the National Defense Authorization Act 
                for Fiscal Year 1998, Pub. L. No. 105-85, 111 Stat. 
                1629, 1759 (1997).''.

                k. The Analysis accompanying R.C.M. 1009 is amended by 
                adding at the end the following new paragraph:

                    ``2002 Amendment: Subsection (e)(3)(B)(ii) was 
                amended as a result of the enactment of Article 56a, 
                UCMJ, in section 581 of the National Defense 
                Authorization Act for Fiscal Year 1998, Pub. L. No. 
                105-85, 111 Stat. 1629, 1759 (1997).''.

                l. The Analysis to R.C.M. 1103 (b)(2) is amended by 
                adding at the end the following new paragraph:

                    ``2002 Amendment: Subsection (b)(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.''.

                m. The Analysis to R.C.M. 1103(c) is amended by adding 
                at the end the following new paragraph:

                    ``2002 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.''.

                n. The Analysis to R.C.M. 1103(f) is amended by adding 
                at the end the following new paragraph:

                    ``2002 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. 106Sec. 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.''.

[[Page 18787]]

                o. The Analysis to R.C.M. 1104(a) is amended by adding 
                at the end the following new paragraph:

                    ``2002 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.''.

                p. The Analysis to R.C.M. 1104(e) is amended by adding 
                at the end the following new paragraph:

                    ``2002 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.''.

                q. The Analysis to R.C.M. 1106(a) is amended by adding 
                at the end the following new paragraph:

                    ``2002 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. This amendment requires all special courts-
                martial cases subject to appellate review to comply 
                with this rule.''.

                r. The Analysis to R.C.M. 1107(d) is amended by 
                inserting after the first paragraph the following new 
                paragraph:

                    ``2002 Amendment: The Discussion accompanying 
                subsection (d)(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.''.

                s. The Analysis accompanying R.C.M. 1107(d) is amended 
                by adding at the end the following new paragraphs:

                    ``2002 Amendment: Subsection (d)(4) was amended as 
                a result of the enactment of Article 56a, UCMJ, in 
                section 581 of the National Defense Authorization Act 
                for Fiscal Year 1998, Pub. L. No. 105-85, 111 Stat. 
                1629, 1759 (1997).
                    ``Subsection (d)(5) 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).''

                t. The Analysis to R.C.M. 1109 is amended by adding at 
                the end the following new paragraphs:

                    ``2002 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.
                    ``(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. thnsp;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

[[Page 18788]]

                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.''.

                u. The Analysis to R.C.M. 1110(a) is amended by adding 
                at the end the following new paragraph:

                    ``2002 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.''.

                v. The Analysis to R.C.M. 1111 is amended by adding at 
                the end the following new paragraph:

                    ``2002 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.''.

                w. The Analysis to R.C.M. 1112 is amended by adding at 
                the end the following new paragraph:

                    ``2002 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 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.''.

                x. The Analysis to R.C.M. 1305 (d) is amended to read 
                as follows:

                    ``(d) Forwarding copies of the record. Subsection 
                (1) is based on Article 60(b)(2). Subsection (2) is 
                based on the third paragraph of paragraph 91c of MCM, 
                1969 (Rev.). Subsection (3) is self- explanatory.
                    ``2001 Amendment: Subsection (d)(2) was amended to 
                strike the reference to ``subsection (e)(1)'' and 
                insert a reference to ``subsection (d)(1)'' to reflect 
                the 1995 amendment that redesignated R.C.M. 1305(e) as 
                R.C.M. 1305(d).''.

                2. Changes to Appendix 22, the Analysis Accompanying 
                the Military Rules of Evidence (Part III, MCM).

                a. The Analysis to Mil. R. Evid. 413 is amended by 
                adding at the end the following new paragraph:

                    ``2002 Amendment: Federal Rule of Evidence 415 
                which created a similar character evidence rule for 
                civil cases, became applicable to the Military Rules of 
                Evidence on January 6, 1996, pursuant to Rule 1102. 
                Federal Rule 415, however, is no longer applicable to 
                the Military Rules of Evidence, as stated in Section 1 
                of Executive Order , 2002 Amendments to the Manual for 
                Court-Martial, United States, (date) Rule 415 was 
                deleted because it applies only to federal civil 
                proceedings.''.

                b. The Analysis to Mil. R. Evid. 414 is amended by 
                adding at the end the following new paragraph:

                    ``2002 Amendment: Federal Rule of Evidence 415 
                which created a similar character evidence rule for 
                civil cases, became applicable to the Military Rules of 
                Evidence on January 6, 1996, pursuant to Rule 1102. 
                Federal Rule 415, however, is no longer applicable to 
                the Military Rules of Evidence, as stated in Section 1 
                of Executive Order , 2002 Amendments to the Manual for 
                Court-Martial, United States, (date) Rule 415 was 
                deleted because it applies only to federal civil 
                proceedings.''

                c. The analysis to Mil. R. Evid. 615 is amended by 
                adding at the end the following new paragraph:

[[Page 18789]]

                    ``2002 Amendment: These changes are intended to 
                extend to victims at courts-martial the same rights 
                granted to victims by the Victims' Rights and 
                Restitution Act of 1990, 42 U.S.C. Sec.  10606(b)(4), 
                giving crime victims '[t]he right to be present at all 
                public court proceedings related to the offense, unless 
                the court determines that testimony by the victim would 
                be materially affected if the victim heard other 
                testimony at trial,' and the Victim Rights 
                Clarification Act of 1997, 18 U.S.C. Sec.  3510, which 
                is restated in subsection (5). For the purposes of this 
                rule, the term 'victim' includes all persons defined as 
                victims in 42 U.S.C. Sec.  10607(e)(2), which means 'a 
                person that has suffered direct physical, emotional, or 
                pecuniary harm as a result of the commission of a 
                crime, including'--(A) in the case of a victim that is 
                an institutional entity, an authorized representative 
                of the entity; and (B) in the case of a victim who is 
                under 18 years of age, incompetent, incapacitated, or 
                deceased, one of the following (in order of 
                preference): (i) a spouse; (ii) a legal guardian; (iii) 
                a parent; (iv) a child; (v) a sibling; (vi) another 
                family member; or (vii) another person designated by 
                the court. 'The victim's right to remain in the 
                courtroom remains subject to other rules, such as those 
                regarding classified information, witness deportment, 
                and conduct in the courtroom. Subsection (4) is 
                intended to capture only those statutes applicable to 
                courts-martial.''.

                3. Changes to Appendix 23, the Analysis accompanying 
                the Punitive Articles (Part IV, MCM).

                a. The Analysis to paragraph 27(e) is amended by adding 
                at the end the following new paragraph:

                    ``2002 Amendment: The monetary amount affecting the 
                maximum punishments has been revised from $100 to $500 
                to account for inflation. The last change was in 1969 
                raising the amount to $100. The value has also been 
                readjusted to realign it more closely with the division 
                between felony and misdemeanor penalties in civilian 
                jurisdictions. See generally American Law Institute, 
                Model Penal Code and Commentaries Sec.  223.1 (1980) 
                (suggesting $500 as the value). The amendment also adds 
                the phrase 'or any firearm or explosive' as an 
                additional criterion. This is because, regardless of 
                the intrinsic value of such items, the threat to the 
                community is substantial when such items are wrongfully 
                bought, sold, traded, dealt in or disposed.''.

                b. The Analysis to paragraph 31(c)(6) is amended to 
                read as follows:

                    ``2002 Amendment: Subparagraph c(6), 'Statements 
                made during an interrogation,' was removed in light of 
                questions raised by the Court of Appeals for the Armed 
                Forces in United States v. Solis, 46 M.J. 31, 35 
                (C.A.A.F. 1997). In Solis, the court said subparagraph 
                c(6) could be viewed as serving at least three 
                different purposes. It could be (1) an expansive 
                description of dicta with no intent to limit 
                prosecutions; (2) protection for an accused against 
                overcharging; or (3) guidance for the conduct of 
                investigations. Subparagraph c(6) was never intended to 
                establish either procedural rights for an accused or 
                internal guidelines to regulate government conduct. 
                Subparagraph (c)(6) was based upon United States v. 
                Aronson, 8 U.S.C.M.A. 525, 25 C.M.R. 29 (1957); United 
                States v. Washington, 9 U.S.C.M.A. 131, 25 C.M.R. 393 
                (1958) and United States v. Davenport, 9 M.J. 364 
                (C.M.A. 1980) and was intended merely to describe the 
                rule developed in those cases that a false statement to 
                a law enforcement agent, when made by a servicemember 
                without an independent duty to speak, was not 
                'official' and therefore not within the purview of 
                Article 107. The subparagraph is removed because the 
                position of the Court of Military Appeals in the three 
                decisions noted above was abandoned in United States v. 
                Jackson, 26 M.J. 377 (C.M.A. 1988) and the deleted 
                paragraph no longer accurately describes the current 
                state of the law.''.

                c. The Analysis to paragraph 32(e) is amended by adding 
                at the end the following new paragraph:

                    ``2002 Amendment: The monetary amount affecting the 
                maximum punishments has been revised from $100 to $500 
                to account for inflation. The last change was in 1969 
                raising the amount to $100. The value has also been 
                readjusted to realign it more closely with the division 
                between felony

[[Page 18790]]

                and misdemeanor penalties in civilian jurisdictions. 
                See generally American Law Institute, Model Penal Code 
                and Commentaries Sec.  223.1 (1980) (suggesting $500 as 
                the value). Although the monetary amount affecting 
                punishment in 18 U.S.C. Sec.  1361, Government property 
                or contracts, and 18 U.S.C. Sec.  641, Public money, 
                property or records, was increased from $100 to $1000 
                pursuant to section 606 of the Economic Espionage Act 
                of 1996, P. L. No. 104-294, 110 Stat. 3488 (1996), a 
                value of $500 was chosen to maintain deterrence, 
                simplicity, and uniformity for the Manual's property 
                offenses.''.

                d. The Analysis to paragraph 33(e) is amended by adding 
                at the end the following new paragraph:

                    ``2002 Amendment: The monetary amount affecting the 
                maximum punishments has been revised from $100 to $500 
                to account for inflation. The last change was in 1969 
                raising the amount to $100. The value has also been 
                readjusted to realign it more closely with the division 
                between felony and misdemeanor penalties in civilian 
                jurisdictions. See generally American Law Institute, 
                Model Penal Code and Commentaries Sec.  223.1 (1980) 
                (suggesting $500 as the value).''.

                e. The Analysis to paragraph 46(c) is amended by adding 
                at the end the following new paragraph:

                    ``2002 Amendment: Subparagraph c(1)(h)(vi) is new. 
                It was added to provide guidance on how unauthorized 
                credit, debit, or electronic transactions should 
                usually be charged. See United States v. Duncan, 30 
                M.J. 1284, 289 (N.M.C.M.R. 1990) (citing United States 
                v. Jones, 29 C.M.R. 651 (A.B.R. 1960), petition denied, 
                30 C.M.R. 417 (C.M.A. 1960)) (regarding thefts from ATM 
                machines). Alternative charging theories are also 
                available, see United States v. Leslie, 13 M.J. 170 
                (C.M.A. 1982); United States v. Ragins, 11 M.J. 42 
                (C.M.A. 1981); United States v. Schaper, 42 M.J. 737 
                (A.F. Ct. Crim. App. 1995); and United States v. 
                Christy, 18 M.J. 688 (N.M.C.M.R. 1984). The key under 
                Article 121 is that the accused wrongfully obtained 
                goods or money from a person or entity with a superior 
                possessory interest.''.

                f. The Analysis to paragraph 46(e) is amended by adding 
                at the end the following new paragraph:

                    ``2002 Amendment: The monetary amount affecting the 
                maximum punishments has been revised from $100 to $500 
                to account for inflation. The last change was in 1969 
                raising the amount to $100. The value has also been 
                readjusted to realign it more closely with the division 
                between felony and misdemeanor penalties in civilian 
                jurisdictions. See generally American Law Institute, 
                Model Penal Code and Commentaries Sec.  223.1 (1980) 
                (suggesting $500 as the value). Although the monetary 
                amount effecting punishment in 18 U.S.C. Sec.  1361, 
                Government property or contracts, and 18 U.S.C. Sec.  
                641, Public money, property or records, was increased 
                from $100 to $1000 pursuant to section 606 of the 
                Economic Espionage Act of 1996, P. L. No. 104-294, 110 
                Stat. 3488 (1996), a value of $500 was chosen to 
                maintain deterrence, simplicity, and uniformity for the 
                Manual's property offenses.''.

                g. The Analysis to paragraph 49(e) is amended by adding 
                at the end the following new paragraph:

                    ``2002 Amendment: The monetary amount affecting the 
                maximum punishments has been revised from $100 to $500 
                to account for inflation. The last change was in 1969 
                raising the amount to $100. The value has also been 
                readjusted to realign it more closely with the division 
                between felony and misdemeanor penalties in civilian 
                jurisdictions. See generally American Law Institute, 
                Model Penal Code and Commentaries Sec.  223.1 (1980) 
                (suggesting $500 as the value).''.

                h. The Analysis to paragraph 52(e) is amended by adding 
                at the end the following new paragraph:

                    ``2002 Amendment: The monetary amount affecting the 
                maximum punishments has been revised from $100 to $500 
                to account for inflation. The last change was in 1969 
                raising the amount to $100. The value has also been 
                readjusted to realign it more closely with the division 
                between felony and misdemeanor penalties in civilian 
                jurisdictions. See generally American

[[Page 18791]]

                Law Institute, Model Penal Code and Commentaries Sec.  
                223.1 (1980) (suggesting $500 as the value). A value of 
                $500 was chosen to maintain deterrence, simplicity, and 
                uniformity for the Manual's property offenses. 18 
                U.S.C. Sec.  81, Arson within special maritime and 
                territorial jurisdiction, no longer grades the offense 
                on the basis of value.''.

                i. The Analysis to paragraph 58(e) is amended by adding 
                at the end the following new paragraph:

                    ``2002 Amendment: The monetary amount affecting the 
                maximum punishments has been revised from $100 to $500 
                to account for inflation. The last change was in 1969 
                raising the amount to $100. The value has also been 
                readjusted to realign it more closely with the division 
                between felony and misdemeanor penalties in civilian 
                jurisdictions. See generally American Law Institute, 
                Model Penal Code and Commentaries Sec.  223.1 (1980) 
                (suggesting $500 as the value).''.

                j. The Analysis to paragraph 62. Article 134 ' 
                (Adultery) is amended to read as follows:

                    ``c. Explanation. (1) Subparagraph c(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 c(3) is based on United States v. Poole, 
                39 M.J. 819 (A.C.M.R. 1994). Subparagraph c(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 (l)(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.''.

                k. The Analysis to paragraph 78(e) is amended by adding 
                at the end the following new paragraph:

                    ``2002 Amendment: The monetary amount affecting the 
                maximum punishments has been revised from $100 to $500 
                to account for inflation. The last change was in 1969 
                raising the amount to $100. The value has also been 
                readjusted to realign it more closely with the division 
                between felony and misdemeanor penalties in civilian 
                jurisdictions. See generally American Law Institute, 
                Model Penal Code and Commentaries Sec.  223.1 (1980) 
                (suggesting $500 as the value).''.

[[Page 18792]]

                l. The Analysis to paragraph 106(e) is amended by 
                adding at the end the following new paragraph:

                    ``2002 Amendment: The monetary amount affecting the 
                maximum punishments has been revised from $100 to $500 
                to account for inflation. The last change was in 1969 
                raising the amount to $100. The value has also been 
                readjusted to realign it more closely with the division 
                between felony and misdemeanor penalties in civilian 
                jurisdictions. See generally American Law Institute, 
                Model Penal Code and Commentaries Sec.  223.1 (1980) 
                (suggesting $500 as the value).''.

[FR Doc. 02-9536
Filed 4-16-02; 8:45 am]
Billing code 5000-04-P