[Federal Register Volume 72, Number 184 (Monday, September 24, 2007)]
[Notices]
[Pages 54246-54249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18787]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[DOD-2007-OS-0104]


Manual for Courts-Martial; Proposed Amendments

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

ACTION: Notice of proposed amendments to the Manual for Courts-Martial, 
United States (2005 ed.) and notice of public meeting.

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SUMMARY: The Department of Defense is considering recommending changes 
to the Manual for Courts-Martial, United States (2005 ed.) (MCM). The 
proposed changes constitute the 2007 annual review required by the MCM 
and DoD Directive 5500.17, ``Role and Responsibilities of the Joint 
Service Committee (JSC) on Military Justice,'' May 3, 2003. The 
proposed changes concern the rules of procedure and evidence and the 
punitive articles applicable in trials by courts-martial. These 
proposed changes have not been coordinated within the Department of 
Defense under DoD Directive 5500.1, ``Preparation, Processing and 
Coordinating Legislation, Executive Orders, Proclamations, Views 
Letters Testimony,'' June 15, 2007, and do not constitute the official 
position of the Department of Defense, the Military Departments, or any 
other Government agency.
    This notice also sets forth the date, time and location for the 
public meeting of the JSC to discuss the proposed changes.
    This notice is provided in accordance with DoD Directive 5500.17, 
``Role and Responsibilities of the Joint Service Committee (JSC) on 
Military Justice,'' May 3, 2003. This notice is intended only to 
improve the internal management of the Federal Government. It is not 
intended to create any right or benefit, substantive or procedural, 
enforceable at law by any party against the United States, its 
agencies, its officers, or any person.
    In accordance with paragraph III.B.4 of the Internal Organization 
and Operating Procedures of the JSC, the committee also invites members 
of the public to suggest changes to the Manual for Courts-Martial in 
accordance with the described format.

DATES: Comments on the proposed changes must be received no later than 
November 27, 2007 to be assured consideration by the JSC. A public 
meeting will be held on October 19, 2007 at 10 a.m. in the 14th Floor 
Conference Room, 1777 N. Kent St., Rosslyn, VA 22209-2194.

ADDRESSES: You may submit comments, identified by docket number and or 
RIN number and title, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://regulations.gov 
as they are received without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: Lieutenant Colonel Thomas E. Wand, 
Executive Secretary, Joint Service Committee on Military Justice, Air 
Force Legal Operations Agency, Military Justice Division, 112 Luke 
Avenue, Suite 343, Bolling Air Force Base, DC 20032, (202) 767-1539, e-
mail [email protected].

SUPPLEMENTARY INFORMATION: The proposed amendments to the MCM are as 
follows:
    Section 1. Part II of the Manual for Courts-Martial, United States, 
is amended as follows:
    (a) R.C.M. 103 is amended by adding the following new subparagraph 
(20) and re-designating the current subparagraph (20) as subparagraph 
(21):
    ``(20) ``Writing'' includes printing and typewriting and 
reproductions of visual symbols by handwriting, typewriting, printing, 
photostating, photographing, magnetic impulse, mechanical or electronic 
recording, or other form of data compilation.''
    (b) R.C.M. 1103(b)(2)(B) is amended to read as follows:
    ``(B) Verbatim transcript required. Except as otherwise provided in 
subsection (j) of this rule, the record of trial shall include a 
verbatim transcript of all sessions except sessions closed for 
deliberations and voting when:''
    (c) R.C.M. 1103(e) is amended to read as follows:
    ``(e) Acquittal; courts-martial resulting in findings of not guilty 
only by reason of lack of mental responsibility; termination prior to 
findings; termination after findings. Notwithstanding subsections (b), 
(c), and (d) of this rule, if proceedings resulted in an acquittal of 
all charges and specifications, in a finding of not guilty only by 
reason of lack of mental responsibility of all charges and 
specifications, or if the proceedings were terminated by withdrawal, 
mistrial, or dismissal before findings, or if the proceedings were 
terminated after findings by approval of an

[[Page 54247]]

administrative discharge in lieu of court-martial, the record may 
consist of the original charge sheet, a copy of the convening order and 
amending orders (if any), and sufficient information to establish 
jurisdiction over the accused and the offenses (if not shown on the 
charge sheet). The convening authority or higher authority may 
prescribe additional requirements.''
    (d) R.C.M. 1103(g)(1)(A) is amended to read as follows:
    ``(A) In general. In general and special courts-martial which 
require a verbatim transcript under subsections (b) or (c) of this rule 
and are subject to a review by a Court of Criminal Appeals under 
Article 66, the trial counsel shall cause to be prepared an original 
record of trial.''
    (e) R.C.M. 1103(j)(2) is amended to read as follows:
    ``(2) Preparation of written record. When the court-martial, or any 
part of it, is recorded by videotape, audiotape, or similar material 
under subsection (j)(1) of this rule, a written, as defined in R.C.M. 
103, transcript or summary as required in subsection (b)(2)(A), 
(b)(2)(B), (b)(2)(C), or (c) of this rule, as appropriate, shall be 
prepared in accordance with this rule and R.C.M. 1104 before the record 
is forwarded under R.C.M. 1104(e), unless military exigencies prevent 
transcription.''
    (f) R.C.M. 1104(a)(1) is amended to read as follows:
    ``(1) In general. A record is authenticated by the signature of a 
person specified in this rule who thereby declares that the record 
accurately reports the proceedings. An electronic record of trial may 
be authenticated with the electronic signature of the military judge or 
other authorized person. Service of an authenticated electronic copy of 
the record of trial with a means to review the record of trial 
satisfies the requirement of service under R.C.M. 1105(c) and 1305(d). 
No person may be required to authenticate a record of trial if that 
person is not satisfied that it accurately reports the proceedings.''
    (g) R.C.M. 1106(d) is amended to read as follows:
    ``(d) Form and content of recommendation.
    (1) The purpose of the recommendation of the staff judge advocate 
or legal officer is to assist the convening authority to decide what 
action to take on the sentence in the exercise of command prerogative. 
The staff judge advocate or legal officer shall use the record of trial 
in the preparation of the recommendation, and may also use the 
personnel records of the accused or other matters in advising the 
convening authority whether clemency is warranted.
    (2) Form. The recommendation of the staff judge advocate or legal 
officer shall be a concise written communication.
    (3) Required contents. The staff judge advocate or legal advisor 
shall provide the convening authority with a copy of the report of 
results of trial, setting forth the findings, sentence, and confinement 
credit to be applied, a copy or summary of the pretrial agreement, if 
any, any recommendation for clemency by the sentencing authority, made 
in conjunction with the announced sentence, and the staff judge 
advocate's concise recommendation.''
    (h) R.C.M. 1111 is amended by inserting the following sentence at 
the end of the rule:
    ``Forwarding of an authenticated electronic copy of the record of 
trial satisfies the requirements under this rule.''
    (i) R.C.M. 1113 is amended by adding the following new subparagraph 
(d) and re-designating the current subparagraph (d) as subparagraph 
(e):
    ``(d) Self-executing punishments. Under regulations prescribed by 
the Secretary concerned, a dishonorable or bad conduct discharge that 
has been approved by an appropriate convening authority may be self-
executing after final judgment at such time as:
    (1) The accused has received a sentence of no confinement or has 
completed all confinement;
    (2) The accused has been placed on excess or appellate leave; and,
    (3) The appropriate official has certified that the accused's case 
is final. Upon completion of the certification, the official shall 
forward the certification to the accused's personnel office for 
preparation of a final discharge order and certificate.''
    (j) R.C.M. 1114(a) is amended by inserting the following as 
subsection (a)(4):
    ``(4) Self-executing final orders. An order promulgating a self-
executing dishonorable or bad conduct discharge need not be issued. The 
original action by a convening authority approving a discharge and 
certification by the appropriate official that the case is final may be 
forwarded to the accused's personnel office for preparation of a 
discharge order and certificate.''
    (k) R.C.M. 1305(b) is amended by changing the first sentence to 
read as follows:
    ``(b) Contents. The summary court-martial shall prepare a written 
record of trial, which shall include:''
    (l) R.C.M. 1305(c) is amended to read as follows:
    ``(c) Authentication. The summary court-martial shall authenticate 
the record by signing the record of trial. An electronic record of 
trial may be authenticated with the electronic signature of the summary 
court-martial.''
    (m) R.C.M. 1305(d)(1)(A) is amended to read as follows''
    ``(A) Service. The summary court-martial shall cause a copy of the 
record of trial to be served on the accused as soon as it is 
authenticated. Service of an authenticated electronic copy of the 
record of trial with a means to review the record of trial satisfies 
the requirement of service under this rule.''
    (n) R.C.M. 1306(b)(3) is amended to read as follows:
    ``(3) Signature. The action on the record of trial shall be signed 
by the convening authority. The action on an electronic record of trial 
may be signed with the electronic signature of the convening 
authority.''
    Section 2. Part IV of the Manual for Courts-Martial, United States, 
is amended as follows:
    (a) Paragraph 14, Article 90, Assaulting or willfully disobeying 
superior commissioned officer, paragraph c.(2)(g) is amended to read as 
follows:
    ``c.(2)(g) Time for compliance. When an order requires immediate 
compliance, an accused's declared intent not to obey and the failure to 
make any move to comply constitutes disobedience. Immediate compliance 
is required for any order which does not explicitly or implicitly 
indicate that delayed compliance is authorized or directed. If an order 
requires performance in the future, an accused's present statement of 
intention to disobey the order does not constitute disobedience of that 
order, although carrying out that intention may.''
    (b) Paragraph 44, Article 119, Manslaughter, paragraph b. is 
amended to read as follows:
    ``b. Elements.
    (1) Voluntary manslaughter.
    (a) That a certain named or described person is dead;
    (b) That the death resulted from the act or omission of the 
accused;
    (c) That the killing was unlawful; and
    (d) That, at the time of the killing, the accused had the intent to 
kill or inflict great bodily harm upon the person killed.

    Note: Add the following if applicable.

    (e) That the person killed was a child under the age of 16 years.
    (2) Involuntary manslaughter.
    (a) That a certain named or described person is dead;

[[Page 54248]]

    (b) That the death resulted from the act or omission of the 
accused;
    (c) That the killing was unlawful; and
    (d) That this act or omission of the accused constituted culpable 
negligence, or occurred while the accused was perpetrating or 
attempting to perpetrate an offense directly affecting the person other 
than burglary, sodomy, rape, robbery, or aggravated arson.

    Note: Add the following if applicable.

    (e) That the person killed was a child under the age of 16 years.''
    (c) Paragraph 44, Article 119, Manslaughter, paragraph c.(1)(c) is 
added following paragraph c.(1)(b):
    ``(c) When committed upon a child under 16 years of age. The 
maximum punishment is increased when voluntary manslaughter is 
committed upon a child under 16 years of age. The accused's knowledge 
that the child was under 16 years of age at the time of the offense is 
not required for the increased maximum punishment.''
    (d) Paragraph 44, Article 119, Manslaughter, paragraph c.(2)(c) is 
added following paragraph c.(2)(b):
    ``(c) When committed upon a child under 16 years of age. The 
maximum punishment is increased when involuntary manslaughter is 
committed upon a child under 16 years of age. The accused's knowledge 
that the child was under 16 years of age at the time of the offense is 
not required for the increased maximum punishment.''
    (e) Paragraph 44, Article 119, Manslaughter, paragraph e.(3) is 
added following paragraph e.(2):
    ``(3) Voluntary manslaughter of a child under 16 years of age. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 20 years.''
    (f) Paragraph 44, Article 119, Manslaughter, paragraph e.(4) is 
added following paragraph e.(3):
    ``(4) Involuntary manslaughter of a child under 16 years of age. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 15 years.''
    (g) Paragraph 44, Article 119, Manslaughter, paragraph f. is 
amended to read as follows:
    ``f. Sample specifications.
    (1) Voluntary manslaughter.
    In that ----------------(personal jurisdiction data), did, (at/on 
board--location) (subject matter jurisdiction data, if required), on or 
about ----------------, willfully and unlawfully kill ----------------, 
(a child under 16 years of age) by ----------------him/her (in) (on) 
the ----------------with a ----------------.
    (2) Involuntary manslaughter.
    In that ----------------(personal jurisdiction data), did, (at/on 
board location) (subject matter jurisdiction data, if required), on or 
about ----------------, (by culpable negligence) (while (perpetrating) 
(attempting to perpetrate) an offense directly affecting the person of 
----------------, to wit: (maiming) (a battery) (----------------)) 
unlawfully kill ----------------(a child under 16 years of age) by ----
------------him/her (in) (on) the ----------------with a --------------
--.''
    Section 3. These amendments shall take effect on [30 days after 
signature].
    (a) Nothing in these amendments shall be construed to make 
punishable any act done or omitted prior to [30 days after signature] 
that was not punishable when done or omitted.
    (b) Nothing in these amendments shall be construed to invalidate 
any nonjudicial punishment proceedings, restraint, investigation, 
referral of charges, trial in which arraignment occurred, or other 
action begun prior to [30 days after signature], 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.

THE WHITE HOUSE

Changes to the Discussion Accompanying the Manual for Courts Martial, 
United States

    (a) The following Discussion is added immediately after R.C.M. 
103(20):
    ``The definition of `writing' includes letters, words, or numbers 
set down by handwriting, typewriting, printing, photostating, 
photographing, magnetic impulse, mechanical or electronic recording, or 
any other form of data compilation. This section makes it clear that 
computers and other modern reproduction systems are included in this 
definition, and consistent with the definition of `writing' in Military 
Rule of Evidence 1001. The definition is comprehensive, covering all 
forms of writing or recording of words or word-substitutes.''
    (b) The Discussion immediately following R.C.M. 1103(g)(1)(A) is 
amended to read as follows:
    ``An original record of trial includes any record of the 
proceedings recorded in a form that satisfies the definition of a 
`writing' in R.C.M. 103. Any requirement to prepare a printed record of 
trial pursuant to this rule, either in lieu of or in addition to a 
record of trial recorded or compiled in some other format, including 
electronic or digital formats, is subject to service regulation.''

Changes to Appendix 11, Forms of Sentences

    (a) a. is amended to read as follows:
    ``a. Announcement of sentence
    See R.C.M. 1007
    In announcing the sentence, the president or, in cases tried by 
military judge alone, the military judge should announce:
    ``(Name of accused), this court-martial sentences you .''
    The sentence should now be announced following one of the forms 
contained in b below, or any necessary modification or combination 
thereof. Each of the forms of punishment prescribed in b are separate, 
that is, the adjudging of one form of punishment is not contingent upon 
any other punishment also being adjudged. The forms in b, however, my 
be combined and modified so long as the punishments adjudged is not 
forbidden by the code and does not exceed the maximum authorized by 
this Manual (see R.C.M. 1003 and Part IV) in the particular case being 
tried. In announcing a sentence consisting of combined punishments, the 
president or military judge may, for example, state:

    ``To forfeit all pay and allowances, to be reduced to Private, 
E-1, to be confined for one year, and to be dishonorably discharged 
from the service.''
    ``To forfeit $350.00 pay per month for six months, to be 
confined for six months, and to be discharged from the service with 
a bad conduct discharge.''
    ``To forfeit all pay and allowances, to be confined for one year 
and to be dismissed from the service.''
    ``To forfeit $250.00 pay per month for one month, and to perform 
hard labor without confinement for one month.''''

Changes to Appendix 12, Maximum Punishment Chart

    Appendix 12 is amended as follows:
    (a) Amend Article 119 by inserting the following:
    ``Voluntary manslaughter of a child under the age of 16 years DD, 
BCD 20 yrs. Total.
    Involuntary manslaughter of a child under the age of 16 years DD, 
BCD 15 yrs. Total''.

Changes to Appendix 22, Analysis of the Military Rules of Evidence

    (a) Amend the Analysis accompanying Mil. R. Evid. 801(d)(1)(B) to 
read as follows:
    ``Rule 801(d)(1)(B) makes admissible as substantive evidence on the 
merits a statement consistent with the in-court testimony of the 
witness and ``offered to

[[Page 54249]]

rebut an express or implied charge against the declarant of recent 
fabrication or improper influence or motive.'' Unlike Rule 
801(d)(1)(A), the earlier consistent statement need not have been made 
under oath or at any type of proceeding. On its face, the Rule does not 
require that the consistent statement offered have been made prior to 
the time the improper influence or motive arose or prior to the alleged 
recent fabrication. Notwithstanding this, the Supreme Court has read 
such a requirement into the rule. Tome v. United States, 513 U.S. 150 
(1995); see also United States v. Allison, 49 M.J. 54 (C.A.A.F. 1998). 
The limitation does not, however, prevent admission of a consistent 
statement made after an inconsistent statement but before the improper 
influence or motive arose. United States v. Scholle, 553 F. 2d 1109 
(8th Cir. 1977). Rule 801(d)(1)(B) provides a possible means to admit 
evidence of fresh complaint in prosecution of sexual offenses. Although 
limited to circumstances in which there is a charge, for example, of 
recent fabrication, the Rule, when applicable, would permit not only 
fact of fresh complaint, as is presently possible, but also the entire 
portion of the consistent statement.''

    Dated: September 18, 2007.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.
[FR Doc. E7-18787 Filed 9-21-07; 8:45 am]
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