[Federal Register Volume 73, Number 183 (Friday, September 19, 2008)]
[Notices]
[Pages 54387-54390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21965]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DoD-2008-OS-0112]


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 (2008 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 (2008 ed.) (MCM). The 
proposed changes constitute the 2008 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

[[Page 54388]]

Coordinating Legislation, Executive Orders, Proclamations, Views 
Letters and 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 18, 2008, to be assured consideration by the JSC. A public 
meeting for comments will be held on October 30, 2008, 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 
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 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://www.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. 1003 is amended to read as follows:
    ``(3) Fine. Any court-martial may adjudge a fine in lieu of or in 
addition to forfeitures. In the case of a member of the armed forces, 
summary and special 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 the case of a person 
serving with or accompanying an armed force in the field, a summary 
court-martial may not adjudge a fine in excess of two-thirds of one 
month of the highest rate of enlisted pay, and a special court-martial 
may not adjudge a fine in excess of two-thirds of one year of the 
highest rate of officer pay. 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.''
    (b) R.C.M. 1003(c) is amended by renumbering subparagraph (4) as 
subparagraph (5) and adding a new subparagraph (4) as follows:
    ``(4) Based on status as a person serving with or accompanying an 
armed force in the field. In the case of a person serving with or 
accompanying an armed force in the field, no court-martial may adjudge 
forfeiture of pay and allowances, reduction in pay grade, hard labor 
without confinement, or a punitive separation.''
    (c) 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.
    (4) Legal errors. The staff judge advocate or legal officer is not 
required to examine the record for legal errors. However, when the 
recommendation is prepared by a staff judge advocate, the staff judge 
advocate shall state whether, in the staff judge advocate's opinion, 
corrective action on the findings or sentence should be taken when an 
allegation of legal error is raised in matters submitted under R.C.M. 
1105 or when otherwise deemed appropriate by the staff judge advocate. 
The response may consist of a statement of agreement or disagreement 
with the matter raised by the accused. An analysis or rationale for the 
staff judge advocate's statement, if any, concerning legal error is not 
required.
    (5) Optional matters. The recommendation of the staff judge 
advocate or legal officer may include, in addition to matters included 
under subsection (d)(3) and (4) of this rule, any additional matters 
deemed appropriate by the staff judge advocate or legal officer. Such 
matter may include matters outside the record.
    (6) Effect of error. In case of error in the recommendation not 
otherwise waived under subsection (f)(6) of this rule, appropriate 
corrective action shall be taken by appellate authorities without 
returning the case for further action by a convening authority.''
    (d) R.C.M. 1113(d)(2)(A)(iii) is amended to read as follows:
    ``(iii) Periods during which the accused is in custody of civilian 
or foreign authorities after the convening authority, pursuant to 
Article 57a(b)(1), has postponed the service of a sentence to 
confinement.''
    (e) R.C.M. 1113(d)(2)(C) is amended by deleting the last two 
sentences, and replacing them with the following:
    ``No member of the armed forces, or person serving with or 
accompanying an armed force in the field, may be placed in confinement 
in immediate association with enemy prisoners or with other foreign 
nationals not subject to the code. The Secretary concerned may 
prescribe regulations governing the place and conditions of 
confinement.''

[[Page 54389]]

    Section 2. Part IV of the Manual for Courts-Martial, United States, 
is amended as follows:
    (a) Paragraph 32, Article 108, Military Property of the United 
States--sale, loss, damage, destruction, or wrongful disposition, 
paragraph c.(1) is amended to read as follows:
    ``(1) Military Property. Military property is all property, real or 
personal, owned, held, or used by one of the armed forces of the United 
States. Military property is a term of art, and should not be confused 
with government property. The terms are not interchangeable. While all 
military property is government property, all government property is 
not military property. An item of government property is not military 
property unless the item in question meets the definition provided 
above. It is immaterial whether the property sold, disposed, destroyed, 
lost, or damaged had been issued to the accused, to someone else, or 
even issued at all. If it is proved by either direct or circumstantial 
evidence that items of individual issue were issued to the accused, it 
may be inferred, depending on all the evidence, that the damage, 
destruction, or loss proved was due to the neglect of the accused. 
Retail merchandise of service exchange stores is not military property 
under this article.''
    (b) Paragraph 44, Article 119, Manslaughter, paragraph b.(2)(d) is 
amended to read as follows:
    ``(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, rape of a child, aggravated sexual 
assault, aggravated sexual assault of a child, aggravated sexual 
contact, aggravated sexual abuse of a child, aggravated sexual contact 
with a child, robbery, or aggravated arson.''
    (c) Paragraph 46, Larceny and wrongful appropriation, the Note 
following paragraph b.(1)(d) is amended to read as follows:
    ``[Note: If the property is alleged to be military property, as 
defined in paragraph 46.c.(1)(h), add the following element]''
    (d) Paragraph 46, Larceny and wrongful appropriation, is amended by 
re-lettering paragraph 46.c.(1)(h) as paragraph 46.c.(1)(i), and adding 
a new paragraph 46.c.(1)(h) as follows:
    ``(h) Military Property. Military property is all property, real or 
personal, owned, held, or used by one of the armed forces of the United 
States. Military property is a term of art, and should not be confused 
with government property. The terms are not interchangeable. While all 
military property is government property, all government property is 
not military property. An item of government property is not military 
property unless the item in question meets the definition provided 
above. Retail merchandise of service exchange stores is not military 
property under this article.''
    (e) Paragraph 68b. is added as follows:
    ``68b. Article 134--(Child pornography)
    a. Text. See paragraph 60.
    b. Elements.
    (1) Possessing, receiving, or viewing child pornography.
    (a) That the accused knowingly and wrongfully possessed, received, 
or viewed child pornography; and
    (b) That under the circumstances, the conduct of the accused was to 
the prejudice of good order and discipline in the armed forces or was 
of a nature to bring discredit upon the armed forces.
    (2) Possessing child pornography with intent to distribute.
    (a) That the accused knowingly and wrongfully possessed child 
pornography;
    (b) That the possession was with the intent to distribute; and
    (c) That under the circumstances, the conduct of the accused was to 
the prejudice of good order and discipline in the armed forces or was 
of a nature to bring discredit upon the armed forces.
    (3) Distributing child pornography.
    (a) That the accused knowingly and wrongfully distributed child 
pornography to another; and
    (b) That under the circumstances, the conduct of the accused was to 
the prejudice of good order and discipline in the armed forces or was 
of a nature to bring discredit upon the armed forces.
    (4) Producing child pornography.
    (a) That the accused knowingly and wrongfully produced child 
pornography; and
    (b) That under the circumstances, the conduct of the accused was to 
the prejudice of good order and discipline in the armed forces or was 
of a nature to bring discredit upon the armed forces.
    c. Explanation.
    (1) It is not a defense to any offense under this paragraph that 
the minor depicted was not an actual person or did not actually exist.
    (2) An accused may not be convicted of possessing, receiving, 
viewing, distributing, or producing child pornography, if he was not 
aware of the contraband nature of the visual depictions. Awareness may 
be inferred from circumstantial evidence such as the name of a computer 
file.
    (3) ``Child Pornography'' means any visual depiction of a minor, or 
what appears to be a minor, engaging in sexually explicit conduct.
    (4) ``Distributing'' means delivering to the actual or constructive 
possession of another.
    (5) ``Minor'' means any person under the age of 18 years.
    (6) ``Possessing'' means exercising control of something. 
Possession may be direct physical custody like holding an item in one's 
hand, or it may be constructive, as in the case of a person who hides 
something in a locker or a car to which that person may return to 
retrieve it. Possession must be knowing and conscious. Possession 
inherently includes the power or authority to preclude control by 
others. It is possible for more than one person to possess an item 
simultaneously, as when several people share control over an item.
    (7) ``Producing'' means creating or manufacturing. As used in this 
paragraph, it refers to making child pornography that did not 
previously exist. It does not include reproducing or copying.
    (8) ``Sexually explicit conduct'' means actual or simulated:
    (a) sexual intercourse or sodomy, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between persons of the 
same or opposite sex;
    (b) bestiality;
    (c) masturbation;
    (d) sadistic or masochistic abuse; or
    (e) lascivious exhibition of the genitals or pubic area of any 
person.
    (9) ``Visual depiction'' includes undeveloped film and videotape, 
and data stored on a computer disk or by electronic means which is 
capable of conversion into a visual image, and also includes any 
photograph, film, video, picture, digital image or picture, or computer 
image or picture, whether made or produced by electronic, mechanical, 
or other means.
    (10) Affirmative defenses.
    (a) It shall be an affirmative defense to a charge of possessing 
child pornography that the accused promptly and in good faith, and 
without retaining or allowing any person, other than a law enforcement 
agency, to access any such visual depiction:
    (i) Took reasonable steps to destroy each such visual depiction; or
    (ii) reported the matter to a law enforcement agency and afforded 
that

[[Page 54390]]

agency access to each such visual depiction.
    (b) It shall be an affirmative defense to any offense under this 
paragraph that all of the persons engaging in sexually explicit conduct 
in a visual depiction were in fact persons at least 18 years old.
    (11) On motion of the government, in any prosecution under this 
paragraph, except for good cause shown, the name, address, social 
security number, or other nonphysical identifying information, other 
than the age or approximate age, of any minor who is depicted in any 
child pornography or visual depiction or copy thereof shall not be 
admissible and may be redacted from any otherwise admissible evidence, 
and the panel shall be instructed, upon request of the Government, that 
it can draw no inference from the absence of such evidence.
    d. Lesser included offenses.
    (1) Possessing, receiving, or viewing child pornography
    Article 80--attempts.
    (2) Possessing child pornography with intent to distribute
    Article 80--attempts.
    Article 134--possessing child pornography.
    (3) Distributing child pornography
    Article 80--attempts.
    Article 134--possessing child pornography.
    Article 134--possessing child pornography with intent to 
distribute.
    (4) Producing child pornography
    Article 80--attempts.
    Article 134--possessing child pornography.
    Article 134--possessing child pornography with intent to 
distribute.
    e. Maximum punishment.
    (1) Possessing, receiving, or viewing child pornography. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 10 years.
    (2) Possessing child pornography with intent to distribute. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 15 years.
    (3) Distributing child pornography. Dishonorable discharge, 
forfeiture of all pay and allowances, and confinement for 20 years.
    (4) Producing child pornography. Dishonorable discharge, forfeiture 
of all pay and allowances, and confinement for 30 years.
    f. Sample specification.
    Possessing, receiving, viewing, possessing with intent to 
distribute, distributing or producing child pornography.
    In that -------- (personal jurisdiction data), did, at --------, on 
or about -------- knowingly and wrongfully 
(possess)(receive)(view)(distribute) (produce) child pornography, to 
wit: A (photograph)(video)(film)(picture)(digital image)(computer 
image) of a minor, or what appears to be a minor, engaging in sexually 
explicit conduct (, with intent to distribute the said child 
pornography).''
    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) Paragraph (4) of the Discussion immediately after R.C.M. 202(a) 
is amended to read as follows:
    ``(4) Limitations on jurisdiction over civilians. Court-martial 
jurisdiction over civilians under the code is limited by judicial 
decisions. The exercise of jurisdiction under Article 2(a)(11) in peace 
time has been held unconstitutional by the Supreme Court of the United 
States. Before initiating court-martial proceedings against a civilian, 
relevant statutes, decisions, service regulations, and policy memoranda 
should be carefully examined.''
    (b) The first paragraph of the Discussion following R.C.M. 
1003(b)(3) is amended to read as follows:
    A fine is in the nature of a judgment and, when ordered 
executed, makes the accused immediately liable to the United States 
for the entire amount of money specified in the sentence. A fine 
normally should not be adjudged against a member of the armed forces 
unless the accused was unjustly enriched as a result of the offense 
of which convicted. In the case of a civilian subject to military 
law, a fine, rather than a forfeiture, is the proper monetary 
penalty to be adjudged, regardless of whether unjust enrichment is 
present.

Changes to Appendix 21, Analysis of Rules for Courts-Martial

    (a) Add the following to the Analysis accompanying R.C.M. 1106(d):
    ``200-- Amendment: Subsection (d) is restated in its entirety to 
clarify that subsections (d)(4), (d)(5) and (d)(6) were not intended to 
be eliminated by the 2008 Amendment.
    2008 Amendment: Subsections (d)(1) and (d)(3) were modified to 
simplify the requirements of the staff judge advocate's or legal 
officer's recommendation.''

Changes to Appendix 23, Analysis of Punitive Articles

    (a) Add the following to the Analysis accompanying Paragraph 44, 
Article 119--Manslaughter:
    ``b. Elements.
    200-- Amendment: The 2008 Amendment inadvertently omitted the 
change to this paragraph in the 2007 Amendment. Paragraph (2)(d) of the 
elements is corrected to restore the 2007 Amendment.
    2008 Amendment: Notes were included to add an element if the person 
killed was a child under the age of 16 years.
    e. Maximum punishment.
    2008 Amendment: The maximum authorized confinement for voluntary 
manslaughter was increased from 15 years to 20 years when the person 
killed was a child under the age of 16 years. The maximum authorized 
confinement for involuntary manslaughter was increased from 10 years to 
15 years when the person killed was a child under the age of 16 
years.''

    September 15, 2008.
Morgan Frazier,
Alternate OSD Federal Register, Liaison Officer, Department of Defense.
[FR Doc. E8-21965 Filed 9-18-08; 8:45 am]
BILLING CODE 5001-06-P