[Federal Register Volume 78, Number 43 (Tuesday, March 5, 2013)]
[Notices]
[Pages 14271-14272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04994]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DoD-2012-OS-0129]


Manual for Courts-Martial; Proposed Amendments

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

ACTION: Notice of response to public comments on proposed amendments to 
the Manual for Courts-Martial, United States (2012 ed.)(MCM).

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SUMMARY: The Joint Service Committee on Military Justice (JSC) is 
publishing final proposed amendments to the Manual for Courts-Martial, 
United States (MCM) to the Department of Defense. 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 and Testimony,'' June 
15, 2007, and do not

[[Page 14272]]

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 Joint Services Policy and 
Legislation Section, Military Justice Division, AFLOA/JAJM, 1500 West 
Perimeter Road, Suite 1130, Joint Base Andrews, Maryland, 20762, 
between 9 a.m. and 4 p.m. Monday through Friday, except Federal 
holidays.

FOR FURTHER INFORMATION CONTACT: Major Daniel C. Mamber, Chief of Joint 
Services Policy and Legislation Section, Military Justice Division, 
AFLOA/JAJM, 1500 West Perimeter Road, Suite 1130, Joint Base Andrews, 
Maryland, 20762, 240-612-4828, email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    On October 23, 2012 (77 FR 64854-64887), the JSC published a Notice 
of Proposed Amendments concerning the rules of procedure and evidence 
and the punitive articles applicable in trials by courts-martial and a 
Notice of Public Meeting to receive comments on these proposals. The 
public meeting was held on December 11, 2012. One member of the public 
appeared. Several comments were received via electronic mail and were 
considered by the JSC.

Discussion of Comments and Changes

    The JSC considered each public comment, and after making minor 
modifications, the JSC is satisfied that the proposed amendments are 
appropriate to implement. Comments that were submitted that are outside 
the scope of these proposed changes will be considered as part of the 
JSC's 2013 annual review of the MCM. The JSC will forward the public 
comments and proposed amendments to the Department of Defense. The 
public comments regarding the proposed changes follow:
    a. One commenter recommended adding the words ``to the victim's 
privacy'' to RCM 405(i)(2)(B)(iv) after ``unfair prejudice'' when 
discussing when MRE 412(b) evidence is admissible. Due to the 
rescission of the proposed change to MRE 412 in the previous year's 
proposed changes, and its reversion back to its original substance, the 
JSC has not adopted this proposal. Instead, the JSC will make a 
different change to RCM405(i)(2)(B), to read as follows:
    ``(B) Procedure to determine admissibility. The procedure to 
determine admissibility can be found in Mil. R. Evid. 412(c).''
    b. One commenter recommended amending the Analysis to MRE 412. The 
JSC has not adopted this proposal due to the change to the 2012 change, 
involving the Military Rules of Evidence, in which MRE 412 was not 
changed and reverted back to its original substance. Instead the JSC 
proposes to add the following discussion to the Analysis to MRE 412:
    ``In 2011, the Court of Appeals for the Armed Forces expressed 
concern with the constitutionality of the balancing test from Rule 
412(c)(3) as amended in 2007. See United States v. Gaddis, 70 M.J. 248 
(C.A.A.F. 2011), United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 
2011).''
    c. One commenter suggested the portion of RCM 405(i) that requires 
the investigating officer to determine admissibility of MRE 412 
evidence by determining whether the ``probative value of such evidence 
outweighs the danger of unfair prejudice'' is confusing and should 
instead read that the ``probative value of such evidence outweighs the 
danger of unfair prejudice or confusion of the issue.'' However, due to 
the rescission of the proposed change to MRE 412 in the proposed 
changes submitted in 2011, and its reversion back to its original 
substance, the JSC has not adopted this proposal. Instead RCM 
405(i)(2)(B) will now be amended as stated in paragraph a, supra.
    d. One commenter recommended amending the sample specifications 
under Article 120, UCMJ, Paragraphs f.(7)(a)-(f) to include 
``(arouse)(gratify the sexual desire of)'' to correspond to the 
elements under Abusive Sexual Contact. In addition, based on this 
comment, JSC noted the same inconsistency in Paragraphs f.(5)(a)-(e). 
Article 120, UCMJ, Paragraphs f.(5) and (7) will be amended to include 
the language in the sample specifications.
    e. Comments making grammatical corrections were received. Those 
corrections were made.
    f. Comments were received suggesting additional amendments to RCMs 
307, 405, 701, 703, 905, 906, 907, 908, 1003, 1004; the Analysis to 
MREs 513 and 514; Article 120; and Part IV, paragraph 16e pertaining to 
Article 92, UCMJ. These suggested changes were not incorporated. 
Several suggested changes were not contemplated in the proposals 
currently under review. Those suggestions will be considered in the 
course of the FY13 annual review of the MCM, which is required by DoD 
Directive 5500.17.

    Dated: February 28, 2013.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2013-04994 Filed 3-4-13; 8:45 am]
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