[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]


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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).

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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 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]
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