[Federal Register Volume 73, Number 249 (Monday, December 29, 2008)]
[Notices]
[Pages 79453-79455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30794]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
Manual for Courts-Martial; Proposed Amendments
AGENCY: Joint Service Committee on Military Justice (JSC).
ACTION: Notice of public response to proposed amendments to the Manual
for Courts-Martial, United States (2008 ed.) (MCM).
-----------------------------------------------------------------------
SUMMARY: The JSC is forwarding final proposed amendments to the MCM to
the Department of Defense. 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 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.
ADDRESSES: Comments and materials received from the public are
available for inspection or copying at the Air Force Legal Operations
Agency, Military Justice Division, 112 Luke Avenue, Room 202, Bolling
Air Force Base, District of Columbia between 9 a.m. and 4 p.m., Monday
through Friday, except Federal Holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Colonel Tom Wand, Executive
Secretary, Joint Service Committee on Military Justice, 112 Luke
Avenue, Suite 343, Bolling Air Force Base, District of Columbia 20032,
(202) 767-1539, (202) 404-8755 fax.
SUPPLEMENTARY INFORMATION:
Background
On 19 September 2008, 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 30, 2008. One individual representing an organization
spoke at the public meeting to announce that the organization would be
submitting written comments. One individual and one organization
submitted comments through the Federal Register electronic bulletin
board.
Discussion of Comments and Changes
The JSC considered the public comments and, coupled with the United
States Court of Appeals for the Armed Forces recently hearing arguments
on issues of child pornography with decisions pending, decided to
withdraw the proposed addition of a paragraph addressing child
pornography under Article 134 in Part IV of the MCM. The child
pornography proposal will continue to be considered as part of the 2009
annual review. The JSC is satisfied the other proposed amendments are
appropriate to implement without modification. The JSC will forward the
public comments and proposed amendments to the Department of Defense.
The public comments regarding the proposed changes follow:
a. Recommended adding, ``or knowingly, wrongfully, and purposefully
facilitated such conduct'' to the element of the proposed Article 134
offense of possessing, receiving or viewing child pornography. Since
the proposed paragraph is being withdrawn from the 2008 annual review,
this comment will be considered in the 2009 annual review.
b. Recommended deleting or redrafting the explanation of the child
pornography paragraph requiring awareness of the contraband nature of
the visual depictions in the offenses of possessing, receiving,
viewing, distributing, or producing child pornography. Since the
proposed paragraph is being withdrawn from the 2008 annual review, this
comment will be considered in the 2009 annual review.
c. Recommended deleting the affirmative defense that all of the
persons engaging in sexually explicit conduct in a visual depiction
were in fact persons at least 18 years old. Since the proposed
paragraph is being withdrawn from the 2008 annual review, this comment
will be considered in the 2009 annual review.
d. Noted the high maximum fines for civilians at summary and
special courts-
[[Page 79454]]
martial. The JSC considered that civilians are not subject to all the
forms of punishment applicable to servicemembers. The JSC also
considered that maximums must take into account the highest paid
civilians, including contractors, and that maximums are potential only,
and not necessarily appropriate to every case or accused. In addition,
the JSC considered that an accused has a right to decline trial by a
summary court-martial.
e. Noted no difference between the proposed Part IV, paragraph 44,
Article 119, Manslaughter, paragraph b.(2)(d), and what appears in the
MCM (2008 ed.). While this is correct, the problem arose in the July
24, 2008 Executive Order 13468 amending the MCM. This was explained in
the proposed additions to Appendix 23, Analysis of Punitive Articles.
f. Suggested that Staff Judge Advocate Recommendations be required
to address whether corrective action should be taken in response to
R.C.M. 1105 submissions. The proposed rule makes clear that such is
required. The reason for restating the rule was explained in the
proposed addition to Appendix 21, Analysis of Rules for Courts-Martial.
g. Raised several concerns regarding the adequacy of the rulemaking
process itself. The JSC considered these concerns and determined that
the rulemaking process is adequate, satisfies statutory requirements,
and provides meaningful opportunity for public participation. However,
the JSC particularly noted a concern that the Federal Register notice
invited members to suggest changes to the MCM in accordance with a
format purportedly described in an internal operating procedure. The
reference should have been to a format described in DoD Directive
5500.17, ``Role and Responsibilities of the Joint Service Committee
(JSC) on Military Justice,'' May 3, 2003, Enclosure 2, paragraph
E2.4.6, which is included in Appendix 26 of the MCM.
Proposed Amendments After Period for Public Comment
The proposed recommended amendments to the MCM 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. 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. 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 courts-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.''
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.
[[Page 79455]]
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, Article 121-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, Article 121-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.''
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: Paragraph (4) of the elements is corrected to
properly reflect the 2007 Amendment, which corrected wording was not
included in the 2008 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 confinement for voluntary manslaughter
when the person killed was a child under the age of 16 years was
increased to 20 years. The maximum confinement for involuntary
manslaughter when the person killed was a child under the age of 16
years was increased to 15 years.''
Dated: December 19, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E8-30794 Filed 12-24-08; 8:45 am]
BILLING CODE 5001-06-P