[Federal Register Volume 72, Number 241 (Monday, December 17, 2007)]
[Notices]
[Pages 71378-71380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24388]


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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial; Proposed Amendments

AGENCY: Department of Defense; Joint Service Committee on Military 
Justice (JSC).

ACTION: Notice of Public Response to Proposed Amendments to the Manual 
for Courts-Martial, United States (2005 ed.) (MCM).

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SUMMARY: The JSC is forwarding final proposed amendments to the MCM to 
the Department of Defense. 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.

SUPPLEMENTARY INFORMATION:

Background

    On September 24, 2007, the JSC published a notice of Proposed 
Amendments to the Manual for Courts-Martial and a Notice of Public 
Meeting to receive comments on these proposals. The public meeting was 
held on October 24, 2007. No member of the public attended the meeting 
and no written comments were received. In response to a request from 
the House of Representatives to review procedures applicable to Article 
32 proceedings, the proposed amendments republished below include a new 
Section 1(b) addressing Rule for Courts-Martial (R.C.M.) 405(h)(3).

Proposed Amendments After Period for Public Comment

    The proposed recommended amendments to the Manual for Courts-
Martial to be forwarded through the DoD for action by Executive Order 
of the President of the United States 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. 405(h)(3) is amended to read as follows:
    ``(3) Access by spectators. Access by spectators to all or part of 
the proceedings may be restricted or foreclosed in the discretion of 
the commander who directed the investigation or the investigating 
officer. Article 32 investigations are public hearings and should 
remain open to the public whenever possible. When an overriding 
interest exists that outweighs the value of an open investigation, the 
hearing may be closed to spectators. Any closure must be narrowly 
tailored to achieve the overriding interest that justified the closure. 
Commanders or investigating officers must conclude that no lesser 
methods short of closing the Article 32 can be used to protect the 
overriding interest in the case. Commanders or investigating officers 
must conduct a case-by-case, witness-by-witness, circumstance-by-
circumstance analysis of whether closure is necessary. If a commander 
or investigating officer believes closing the Article 32 investigation 
is necessary, the commander or investigating officer must make specific 
findings of fact in writing that support the closure. The written 
findings of fact must be included in the Article 32 investigating 
officer's report. Examples of overriding interests may include: 
preventing psychological harm or trauma to a child witness or an 
alleged victim of a sexual crime, protecting the safety of a witness or 
alleged victim, protecting classified material, and receiving evidence 
where a witness is incapable of testifying in an open setting.''
    (c) 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:''
    (d) 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 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.''
    (e) 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.''
    (f) 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.''
    (g) 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

[[Page 71379]]

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.''
    (h) 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.''
    (i) 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.''
    (j) 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.''
    (k) 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.''
    (l) 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:''
    (m) 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.''
    (n) 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.''
    (o) 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;
    (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.''

[[Page 71380]]

    (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.

    Dated: December 11, 2007.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, DoD.
 [FR Doc. E7-24388 Filed 12-14-07; 8:45 am]
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