[Federal Register Volume 81, Number 216 (Tuesday, November 8, 2016)]
[Notices]
[Pages 78576-78589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26947]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DOD-2016-OS-0110]


Manual for Courts-Martial; Publication of Supplementary Materials

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

ACTION: Publication of Discussion and Analysis (Supplementary 
Materials) accompanying the Manual for Courts-Martial, United States 
(2012 ed.) (MCM).

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SUMMARY: The JSC hereby publishes Supplementary Materials accompanying 
the MCM as amended by Executive Orders 13643, 13669, 13696, 13730, and 
13740. These 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 constitute the 
official position of the Department of Defense, the Military 
Departments, or any other Government agency. These Supplementary 
Materials have been approved by the JSC and the General Counsel of the 
Department of Defense, and shall be applied in conjunction with the 
rule with which they are associated. The Discussions are effective 
insofar as the Rules they supplement are effective, but may not be 
applied earlier than the date of publication in the Federal Register.

DATES: These Supplementary Materials are effective as of November 8, 
2016.

FOR FURTHER INFORMATION CONTACT: Major Harlye S. Carlton, USMC, (703) 
963-9299 or [email protected]. The JSC Web site is located at: 
http://jsc.defense.gov.

SUPPLEMENTARY INFORMATION: 
    Public Comments: The JSC solicited public comments for these 
changes to the MCM via the Federal Register on October 23, 2012 (77 FR 
64854-64887, Docket ID: DoD-2012-OS-0129), held a public meeting on 
December 11, 2012, and published the JSC response to public comments 
via the Federal Register on March 5, 2013 (78 FR 14271-14272, Docket 
ID: DoD-2012-OS-0129).
    The amendments to the Discussion and Analysis of the MCM are as 
follows:

Annex

    Section 1. Appendix 12 of the Manual for Courts-Martial, United 
States, is amended as follows:
    (a) Article 120 is amended to read as follows:
``120 Rape and sexual assault generally

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
Rape................................  Mandatory DD \5\.......  Life \4\...............  Total.
Sexual Assault......................  Mandatory DD \5\.......  30 yrs.................  Total.
Aggravated Sexual Contact...........  DD, BCD................  20 yrs.................  Total.
Abusive Sexual Contact..............  DD, BCD................  7 yrs..................  Total.''
----------------------------------------------------------------------------------------------------------------

    (b) Article 120b is inserted to read as follows:

``120b Rape and sexual assault of a child

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
Rape of a Child.....................  Mandatory DD \5\.......  Life \4\...............  Total.
Sexual Assault of a Child...........  Mandatory DD \5\.......  30 yrs.................  Total.
Sexual Abuse of a Child:
    Cases Involving Sexual Contact..  DD, BCD................  20 yrs.................  Total.
    Other Cases.....................  DD, BCD................  15 yrs.................  Total.''
----------------------------------------------------------------------------------------------------------------

    (c) Article 120c is inserted to read as follows:

``120c Other sexual misconduct

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
Indecent Viewing....................  DD, BCD................  1 yr...................  Total.
Indecent Recording..................  DD, BCD................  5 yrs..................  Total.
Broadcasting or Distributing of an    DD, BCD................  7 yrs..................  Total.
 Indecent Recording.

[[Page 78577]]

 
Forcible Pandering..................  DD, BCD................  12 yrs.................  Total.
Indecent Exposure...................  DD, BCD................  1 yr...................  Total.''
----------------------------------------------------------------------------------------------------------------

    (d) The following Note is inserted after Article 120c to read as 
follows:
    ``[Note: The Article 120, 120b, and 120c maximum punishments apply 
to offenses committed after 28 June 2012. See Appendices 23, 27, and 
28.]''
    (e) Article 125 is amended to read as follows:

``125 Forcible sodomy; bestiality

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
Forcible sodomy.....................  Mandatory DD \5\.......  Life \4\...............  Total.
Bestiality..........................  DD, BCD................  5 yrs..................  Total.''
----------------------------------------------------------------------------------------------------------------

    (f) Article 134 abusing public animal is amended to read as 
follows:

``134 Animal abuse

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
Abuse, neglect, or abandonment of an  BCD....................  1 yr...................  Total.
 animal.
Abuse, neglect, or abandonment of a   BCD....................  2yrs...................  Total.
 public animal.
Sexual act with an animal or cases    DD, BCD................  5 yrs..................  Total.''
 where the accused caused the
 serious injury or death of the
 animal.
----------------------------------------------------------------------------------------------------------------

    (g) Article 134 Assault with intent to commit voluntary 
manslaughter, robbery, sodomy, arson, or burglary is amended to read as 
follows:

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
134 With intent to commit voluntary   DD, BCD................  10 yrs.................  Total.''
 manslaughter, robbery, forcible
 sodomy, arson, or burglary.
----------------------------------------------------------------------------------------------------------------

    (h) Article 134 Indecent conduct is inserted to read as follows:

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
134 Indecent conduct................  DD, BCD................  5 yrs..................  Total.''
----------------------------------------------------------------------------------------------------------------

    (i) The Notes are amended by adding note \5\ after note \4.\
    `` \5.\ A dishonorable discharge can be reduced to a bad-conduct 
discharge by the convening authority in accordance with a pretrial 
agreement.''
    Section 2. Appendix 12A of the Manual for Courts-Martial, United 
States, is inserted to read as follows:
``APPENDIX 12A
LESSER INCLUDED OFFENSES
    This chart was compiled for convenience purposes only and is not 
the ultimate authority for specific lesser included offenses. Lesser 
offenses are those which are necessarily included in the offense 
charged. See Article 79. Depending on the factual circumstances in each 
case, the offenses listed below may be considered lesser included. The 
elements of the proposed lesser included offense should be compared 
with the elements of the greater offense to determine if the elements 
of the lesser offense are derivative of the greater offense and vice 
versa. The ``elements test'' is the proper method for determining 
lesser included offenses. See Appendix 23.
    Attempts to commit an offense may constitute a lesser included 
offense and are not listed. See Article 80.

------------------------------------------------------------------------
       Article                 Offense           Lesser included offense
------------------------------------------------------------------------
77..................  Principals..............  See Part IV, Para. 1.
78..................  Accessory after the fact  See Part IV, Para. 2.
79..................  Conviction of lesser      See Part IV, Para. 3.
                       included offenses.
80..................  Attempts................  See Part IV, Para. 4.
81..................  Conspiracy..............  See Part IV, Para. 5.
82..................  Solicitation............
83..................  Fraudulent enlistment,
                       appointment, or
                       separation.
84..................  Effecting unlawful
                       enlistment,
                       appointment, or
                       separation.
85..................  Desertion...............  Art. 86.
86..................  Absence without leave...

[[Page 78578]]

 
87..................  Missing movement........
                      --Design................  Art. 87 (neglect); Art.
                                                 86.
                      --Neglect...............  Art. 86.
88..................  Contempt toward
                       officials.
89..................  Disrespect toward a       Art. 117.
                       superior commissioned
                       officer.
90..................  Assaulting or willfully
                       disobeying superior
                       commissioned officer.
                      --Striking superior       Art. 90 (drawing or
                       commissioned officer in   lifting up a weapon or
                       execution of office.      offering violence to
                                                 superior commissioned
                                                 officer); Art. 128
                                                 (simple assault;
                                                 assault consummated by
                                                 a battery; assault with
                                                 a dangerous weapon;
                                                 assault or assault
                                                 consummated by a
                                                 battery upon
                                                 commissioned officer
                                                 not in the execution of
                                                 office).
                      --Drawing or lifting up   Art. 128 (simple
                       a weapon or offering      assault; assault with a
                       violence to superior      dangerous weapon;
                       commissioned officer in   assault upon a
                       execution of office.      commissioned officer
                                                 not in the execution of
                                                 office).
                      --Willfully disobeying    Art. 92; Art. 89.
                       lawful order of
                       superior commissioned
                       officer.
91..................  Insubordinate conduct
                       toward warrant officer,
                       noncommissioned
                       officer, or petty
                       officer.
                      --Striking or assaulting  Art. 128 (simple
                       warrant,                  assault; assault
                       noncommissioned, or       consummated by a
                       petty officer in the      battery; assault with a
                       execution of office.      dangerous weapon;
                                                 assault upon warrant,
                                                 noncommissioned, or
                                                 petty officer not in
                                                 the execution of
                                                 office).
                      --Disobeying a warrant,   Art. 92.
                       noncommissioned, or
                       petty officer.
                      --Treating with contempt  Art. 117.
                       or being disrespectful
                       in language or
                       deportment toward
                       warrant,
                       noncommissioned, or
                       petty officer in the
                       execution of office.
92..................  Failure to obey order or
                       regulation.
93..................  Cruelty and maltreatment
94..................  Mutiny and sedition.....
                      --Mutiny by creating      Art. 90; Art. 116; Art.
                       violence or disturbance.  128 (simple assault).
                      --Mutiny by refusing to   Art. 90 (willful
                       obey orders or perform    disobedience of
                       duties.                   commissioned officer);
                                                 Art. 91 (willful
                                                 disobedience of
                                                 warrant,
                                                 noncommissioned, or
                                                 petty officer); Art.
                                                 92.
                      --Sedition..............  Art. 116; Art. 128
                                                 (assault).
95..................  Resistance, flight,
                       breach of arrest, and
                       escape.
                      --Resisting apprehension  Art. 128 (simple
                                                 assault; assault
                                                 consummated by a
                                                 battery).
96..................  Releasing prisoner
                       without proper
                       authority.
                      --Suffering a prisoner    Art. 96 (neglect).
                       to escape through
                       design.
97..................  Unlawful detention......
98..................  Noncompliance with
                       procedural rules.
99..................  Misbehavior before the
                       enemy.
                      --Running away..........  Art. 85 (desertion with
                                                 intent to avoid
                                                 hazardous duty or
                                                 important service);
                                                 Art. 86 (absence
                                                 without authority;
                                                 going from appointed
                                                 place of duty).
                      --Endangering safety of   Art. 92.
                       a command, unit, place,
                       ship, or military
                       property.
                      --Casting away arms or    Art. 108.
                       ammunition.
                      --Cowardly conduct......  Art. 85 (desertion with
                                                 intent to avoid
                                                 hazardous duty or
                                                 important service);
                                                 Art. 86; Art. 99
                                                 (running away).
                      --Quitting place of duty  Art. 86 (going from
                       to plunder or pillage.    appointed place of
                                                 duty).
100.................  Subordinate compelling
                       surrender.
101.................  Improper use of a
                       countersign.
102.................  Forcing a safeguard.....
103.................  Captured or abandoned
                       property.
104.................  Aiding the enemy........
105.................  Misconduct as a prisoner
106.................  Spies...................
106a................  Espionage...............
107.................  False official statement
108.................  Military property of the
                       United States--sale,
                       loss, damage,
                       destruction, or
                       wrongful disposition.
                      --Willfully damaging      Art. 108 (damaging
                       military property.        military property
                                                 through neglect); Art.
                                                 109 (willfully damaging
                                                 non-military property).
                      --Willfully suffering     Art. 108 (through
                       military property to be   neglect suffering
                       damaged.                  military property to be
                                                 damaged).
                      --Willfully destroying    Art. 108 (through
                       military property.        neglect destroying
                                                 military property;
                                                 willfully damaging
                                                 military property;
                                                 through neglect
                                                 damaging military
                                                 property); Art. 109
                                                 (willfully destroying
                                                 non-military property;
                                                 willfully damaging non-
                                                 military property).
                      --Willfully suffering     Art. 108 (through
                       military property to be   neglect suffering
                       destroyed.                military property to be
                                                 destroyed; willfully
                                                 suffering military
                                                 property to be damaged;
                                                 through neglect
                                                 suffering military
                                                 property to be
                                                 damaged).
                      --Willfully losing        Art. 108 (through
                       military property.        neglect losing military
                                                 property).
                      --Willfully suffering     Art. 108 (through
                       military property to be   neglect suffering
                       lost.                     military property to be
                                                 lost).

[[Page 78579]]

 
                      --Willfully suffering     Art. 108 (through
                       military property to be   neglect suffering
                       sold.                     military property to be
                                                 sold).
                      --Willfully suffering     Art. 108 (through
                       military property to be   neglect suffering
                       wrongfully disposed of.   military property to be
                                                 wrongfully disposed of
                                                 in the manner alleged).
109.................  Property other than
                       military property of
                       the United States--
                       waste, spoilage, or
                       destruction.
110.................  Improper hazarding of
                       vessel.
                      --Willfully and           Art. 110 (negligently
                       wrongfully hazarding a    hazarding a vessel).
                       vessel.
                      --Willfully and           Art. 110 (negligently
                       wrongfully suffering a    suffering a vessel to
                       vessel to be hazarded.    be hazarded).
111.................  Drunken or reckless
                       operation of vehicle,
                       aircraft, or vessel.
                      --Reckless, wanton, or    Art. 110.
                       impaired operation or
                       physical control of a
                       vessel.
                      --Drunken operation of a  Art. 110; Art. 112.
                       vehicle, vessel, or
                       aircraft while drunk or
                       with a blood or breath
                       alcohol concentration
                       in violation of the
                       described per se
                       standard.
112.................  Drunk on Duty...........
112a................  Wrongful use,
                       possession, etc., of
                       controlled substances.
                      --Wrongful use of         Art. 112a (wrongful
                       controlled substance.     possession of
                                                 controlled substance).
                      --Wrongful manufacture    Art. 112a (wrongful
                       of controlled substance.  possession of
                                                 controlled substance).
                      --Wrongful introduction   Art. 112a (wrongful
                       of controlled substance.  possession of
                                                 controlled substance).
                      --Wrongful possession,    Art. 112a (wrongful
                       manufacture, or           possession,
                       introduction of a         manufacture, or
                       controlled substance      introduction of
                       with intent to            controlled substance).
                       distribute.
113.................  Misbehavior of sentinel
                       or lookout.
                      --Drunk on post.........  Art. 112; Art. 92
                                                 (dereliction of duty).
                      --Sleeping on post......  Art. 92 (dereliction of
                                                 duty).
                      --Leaving post..........  Art. 92 (dereliction of
                                                 duty); Art. 86 (going
                                                 from appointed place of
                                                 duty).
114.................  Dueling.................
115.................  Malingering.............
116.................  Riot or breach of peace.
                      --Riot..................  Art. 116 (breach of
                                                 peace).
117.................  Provoking speeches or
                       gestures.
118.................  Murder..................
                      --Premeditated murder     Art. 118 (intent to kill
                       and murder during         or inflict great bodily
                       certain offenses.         harm; act inherently
                                                 dangerous to another).
                      --All murders under       Art. 119 (involuntary
                       Article 118.              manslaughter); Art. 128
                                                 (simple assault;
                                                 assault consummated by
                                                 a battery; aggravated
                                                 assault).
                      --Murder as defined in    Art. 119 (voluntary
                       Article 118(1), (2),      manslaughter).
                       and (4).
119.................  Manslaughter............
                      --Voluntary manslaughter  Art. 119 (involuntary
                                                 manslaughter); Art. 128
                                                 (simple assault;
                                                 assault consummated by
                                                 a battery; aggravated
                                                 assault).
                      --Involuntary             Art. 128 (simple
                       manslaughter.             assault; assault
                                                 consummated by a
                                                 battery).
119a................  Death or injury of an
                       unborn child.
                      --Killing an unborn       Art. 119a (injuring an
                       child.                    unborn child).
                      --Intentionally killing   Art. 119a (killing an
                       an unborn child.          unborn child; injuring
                                                 an unborn child).
120 \1\.............  Rape and sexual assault
                       generally.
                      --Rape..................
                         --By unlawful force..  Art. 120(b)(1)(B); Art.
                                                 120(c); Art. 120(d);
                                                 Art. 128 (simple
                                                 assault; assault
                                                 consummated by a
                                                 battery).
                         --By force causing or  Art. 120(a)(1); Art.
                          likely to cause        120(b)(1)(B); Art.
                          death or grievous      120(c); Art. 120(d);
                          bodily harm to any     Art. 128 (simple
                          person.                assault; assault
                                                 consummated by a
                                                 battery; assault with a
                                                 dangerous weapon or
                                                 other means or force
                                                 likely to produce death
                                                 or grievous bodily
                                                 harm; assault
                                                 intentionally
                                                 inflicting grievous
                                                 bodily harm).
                         --By threatening or    Art. 120(b)(1)(B); Art.
                          placing that other     120(c); Art. 120(d).
                          person in fear that
                          any person would be
                          subjected to death,
                          grievous bodily
                          harm, or kidnapping.
                         --By first rendering   Art. 120(b)(2); Art.
                          that other person      120(c); Art. 120(d).
                          unconscious.
                         --By administering to  Art. 120(c); Art. 128
                          that person a drug,    (simple assault;
                          intoxicant, or other   assault consummated by
                          similar substance.     a battery).
                         --Sexual Assault.....
                         --By threatening or    Art. 120(d).
                          placing that other
                          person in fear.
                         --By causing bodily    Art. 120(d); Art. 128
                          harm to that other     (simple assault;
                          person.                assault consummated by
                                                 a battery).
                         --By making a          Art. 120(d).
                          fraudulent
                          representation that
                          the sexual act
                          serves a
                          professional purpose.
                         --Inducing a belief    Art. 120(d).
                          by any artifice,
                          pretense, or
                          concealment that the
                          person is another
                          person.
                         --Upon another person  Art. 120(d).
                          when the person
                          knows or reasonably
                          should know that the
                          other person is
                          asleep, unconscious,
                          or otherwise unaware
                          that the sexual act
                          is occurring.
                         --When the other       Art. 120(d).
                          person is incapable
                          of consenting.
                      --Aggravated sexual
                       contact.

[[Page 78580]]

 
                         --By unlawful force..  Art. 120(d); Art. 128
                                                 (simple assault;
                                                 assault consummated by
                                                 a battery).
                         --By force causing or  Art. 120(d); Art. 128
                          likely to cause        (simple assault;
                          death or grievous      assault consummated by
                          bodily harm to any     a battery).
                          person.
                         --By threatening or    Art. 120(d).
                          placing that other
                          person in fear that
                          any person would be
                          subjected to death,
                          grievous bodily
                          harm, or kidnapping.
                         --By first rendering   Art. 120(d); Art. 128
                          that person            (simple assault;
                          unconscious.           assault consummated by
                                                 a battery).
                         --By administering to  Art. 120(d); Art. 128
                          that person a drug,    (simple assault;
                          intoxicant, or other   assault consummated by
                          similar substance.     a battery).
                         --Abusive sexual       Art. 128 (simple
                          contact.               assault; assault
                                                 consummated by a
                                                 battery).
120a................  Stalking................
120b................  Rape and sexual assault
                       of a child.
                      --Rape of a child.......
                         --Of a child who has   Art. 120b(c); Art. 120c.
                          not attained the age
                          of 12.
                         --By force of a child  Art. 120b(b); Art.
                          who has attained the   120b(c); Art. 128
                          age of 12.             (assault consummated by
                                                 a battery upon a child
                                                 under 16 years).
                         --By threatening or    Art. 120b(b); Art.
                          placing in fear a      120b(c).
                          child who has
                          attained the age of
                          12.
                         --By rendering         Art. 120b(b); Art.
                          unconscious a child    120b(c); Art. 128
                          who has attained the   (assault consummated by
                          age of 12.             a battery upon a child
                                                 under 16 years).
                         --By administering a   Art. 120b(b); Art.
                          drug, intoxicant, or   120b(c); Art. 128
                          other similar          (assault consummated by
                          substance to a child   a battery upon a child
                          who has attained the   under 16 years).
                          age of 12.
                      --Sexual assault of a
                       child.
                         --Sexual assault of a  Art. 120b(c).
                          child who has not
                          attained the age of
                          12 involving contact
                          between penis and
                          vulva or anus or
                          mouth.
                         --Sexual assault of a  Art. 120b(c).
                          child who has
                          attained the age of
                          12 involving
                          penetration of vulva
                          or anus or mouth by
                          any part of the body
                          or any object.
120c................  Other sexual misconduct.
121.................  Larceny and wrongful
                       appropriation.
                      --Larceny...............  Art. 121 (wrongful
                                                 appropriation).
                      --Larceny of military     Art. 121 (wrongful
                       property.                 appropriation; larceny
                                                 of property other than
                                                 military property).
122.................  Robbery.................  Art. 121 (larceny;
                                                 wrongful
                                                 appropriation); Art.
                                                 128 (simple assault;
                                                 assault consummated by
                                                 a battery; assault with
                                                 a dangerous weapon;
                                                 assault intentionally
                                                 inflicting grievous
                                                 bodily harm)
123.................  Forgery.................
123a................  Making, drawing, or
                       uttering check, draft,
                       or order without
                       sufficient funds.
124.................  Maiming.................  Art. 128 (simple
                                                 assault; assault
                                                 consummated by a
                                                 battery; assault with a
                                                 dangerous weapon;
                                                 assault intentionally
                                                 inflicting grievous
                                                 bodily harm)
125.................  Forcible sodomy;
                       bestiality.
                      --Forcible sodomy.......  Art. 128 (simple
                                                 assault; assault
                                                 consummated by a
                                                 battery).
126.................  Arson...................
                      --Aggravated arson......  Art. 126 (simple arson).
127.................  Extortion...............
128.................  Assault.................
                      --Assault consummated by  Art. 128 (simple
                       a battery.                assault).
                      --Assault upon a          Art. 128 (simple
                       commissioned, warrant,    assault; assault
                       noncommissioned, or       consummated by a
                       petty officer.            battery).
                      --Assault upon a          Art. 128 (simple
                       sentinel or lookout in    assault; assault
                       the execution of duty.    consummated by a
                                                 battery).
                      --Assault consummated by  Art. 128 (simple
                       a battery upon a child    assault; assault
                       under 16 years.           consummated by a
                                                 battery).
                      --Assault with a          Art. 128 (simple
                       dangerous weapon or       assault; assault
                       other means of force      consummated by a
                       likely to produce death   battery; (when
                       or grievous bodily harm.  committed upon a child
                                                 under the age of 16
                                                 years; assault
                                                 consummated by a
                                                 battery upon a child
                                                 under the age of 16
                                                 years)).
                      --Assault in which        Art. 128 (simple
                       grievous bodily harm is   assault; assault
                       intentionally inflicted.  consummated by a
                                                 battery; assault with a
                                                 dangerous weapon (when
                                                 committed upon a child
                                                 under the age of 16
                                                 years; assault
                                                 consummated by a
                                                 battery upon a child
                                                 under the age of 16
                                                 years)).
129.................  Burglary................  Art. 130
                                                 (housebreaking).
130.................  Housebreaking...........
131.................  Perjury.................
132.................  Frauds against the
                       United States.
133.................  Conduct unbecoming an
                       officer and a gentleman.
134.................  Animal abuse............
134.................  Adultery................

[[Page 78581]]

 
134.................  Assault--with intent to
                       commit murder,
                       voluntary manslaughter,
                       rape, robbery, forcible
                       sodomy, arson,
                       burglary, or
                       housebreaking.
                      --Assault with intent to  Art. 128 (simple
                       murder.                   assault; assault
                                                 consummated by a
                                                 battery; assault with a
                                                 dangerous weapon;
                                                 assault intentionally
                                                 inflicting grievous
                                                 bodily harm); Art. 134
                                                 (assault with intent to
                                                 commit voluntary
                                                 manslaughter; willful
                                                 or careless discharge
                                                 of a firearm).
                      --Assault with intent to  Art. 128 (simple
                       commit voluntary          assault; assault
                       manslaughter.             consummated by a
                                                 battery; assault with a
                                                 dangerous weapon;
                                                 assault intentionally
                                                 inflicting grievous
                                                 bodily harm); Art. 134
                                                 (willful or careless
                                                 discharge of a
                                                 firearm).
                      --Assault with intent to  Art. 128 (simple
                       commit rape or forcible   assault; assault
                       sodomy.                   consummated by a
                                                 battery; assault with a
                                                 dangerous weapon).
                      --Assault with intent to  Art. 128 (simple
                       commit burglary.          assault; assault
                                                 consummated by a
                                                 battery; assault with a
                                                 dangerous weapon); Art.
                                                 134 (assault with
                                                 intent to commit
                                                 housebreaking).
                      --Assault with intent to  Art. 128 (simple
                       commit robbery, arson,    assault; assault
                       or housebreaking.         consummated by a
                                                 battery; assault with a
                                                 dangerous weapon).
134.................  Bigamy..................
134.................  Bribery and graft.......
                      --Bribery...............  Art. 134 (graft).
134.................  Burning with intent to
                       defraud.
134.................  Check, worthless, making
                       and uttering--by
                       dishonorably failing to
                       maintain funds.
134.................  Child endangerment......
                      --Child endangerment by   Art. 134 (child
                       design.                   endangerment by
                                                 culpable negligence).
134.................  Child pornography.......
                      --Possessing child        Art. 134 (possessing
                       pornography with intent   child pornography).
                       to distribute.
                      --Distributing child      Art. 134 (possessing
                       pornography.              child pornography;
                                                 possessing child
                                                 pornography with intent
                                                 to distribute)
                      --Producing child         Art. 134 (possessing
                       pornography.              child pornography).
134.................  Cohabitation, wrongful..
134.................  Correctional custody--
                       offenses against.
134.................  Debt, dishonorably
                       failing to pay.
134.................  Disloyal statements.....
134.................  Disorderly conduct,
                       drunkenness.
134.................  Drinking liquor with
                       prisoner.
134.................  Drunk prisoner..........
134.................  Drunkenness--incapacitat
                       ion for performance of
                       duties through prior
                       wrongful indulgence in
                       intoxicating liquor or
                       any drug.
134.................  False or unauthorized
                       pass offenses.
                      --Wrongful use or         Art. 134 (same offenses,
                       possession of false or    except without the
                       unauthorized military     intent to defraud or
                       or official pass,         deceive).
                       permit, discharge
                       certificate, or
                       identification card,
                       with the intent to
                       defraud or deceive.
134.................  False pretenses,
                       obtaining services
                       under.
134.................  False swearing..........
134.................  Firearm, discharging--
                       through negligence.
134.................  Firearm, discharging--    Art. 134 (firearm,
                       willfully, under such     discharging--through
                       circumstances as to       negligence).
                       endanger human life.
134.................  Fleeing scene of
                       accident.
134.................  Fraternization..........
134.................  Gambling with a
                       subordinate.
134.................  Homicide, negligent.....
134.................  Impersonating a
                       commissioned, warrant,
                       noncommissioned, or
                       petty officer, or an
                       agent or official.
134.................  Indecent conduct........
134.................  Indecent language.......  Art. 117 (provoking
                                                 speeches).
134.................  Jumping from vessel into
                       the water.
134.................  Kidnapping..............
134.................  Mail: Taking, opening,    Art. 121.
                       secreting, destroying,
                       or stealing.
134.................  Mails: Depositing or
                       causing to be deposited
                       obscene matters in.
134.................  Misprision of serious
                       offense.
134.................  Obstructing justice.....
134.................  Wrongful interference
                       with an adverse
                       administrative
                       proceeding.
134.................  Pandering and
                       prostitution.
134.................  Parole, violation of....
134.................  Perjury: Subornation of.
134.................  Public record: Altering,
                       concealing, removing,
                       mutilating,
                       obliterating, or
                       destroying.
134.................  Quarantine: Medical,      Art. 134 (breaking
                       breaking.                 restriction).

[[Page 78582]]

 
134.................  Reckless endangerment...
134.................  Restriction, breaking...
134.................  Seizure: Destruction,
                       removal, or disposal of
                       property to prevent.
134.................  Self-injury without
                       intent to avoid service.
134.................  Sentinel or lookout:
                       Offenses against or by.
134.................  Soliciting another to
                       commit an offense.
134.................  Stolen property:
                       Knowingly receiving,
                       buying, concealing.
134.................  Straggling..............
134.................  Testify: Wrongful
                       refusal.
134.................  Threat or hoax designed
                       or intended to cause
                       panic or public fear.
                      --Threat................  Art. 134 (communicating
                                                 a threat); Art. 128
                                                 (assault).
134.................  Threat, communicating...
134.................  Unlawful entry..........
134.................  Weapon: Concealed,
                       carrying.
134.................  Wearing unauthorized
                       insignia, decoration,
                       badge, ribbon, device
                       or lapel button''.
------------------------------------------------------------------------
\1\ This chart only includes the 2012 version of Art. 120. See Appendix
  27 and 28 for prior versions.

    Section 3. The Discussion to Part I of the Manual for Courts-
Martial, United States, is amended as follows:
    (a) The Discussion immediately following paragraph 4 is amended to 
read as follows:
    ``The Department of Defense, in conjunction with the Department of 
Homeland Security, has published supplementary materials to accompany 
the Manual for Courts-Martial. These materials consist of a Discussion 
(accompanying the Preamble, the Rules for Courts-Martial, the Military 
Rules of Evidence, and the Punitive Articles), an Analysis, and various 
appendices. These supplementary materials do not constitute the 
official views of the Department of Defense, the Department of Homeland 
Security, the Department of Justice, the military departments, the 
United States Court of Appeals for the Armed Forces, or any other 
authority of the Government of the United States, and they do not 
constitute rules. Cf., e.g., 5 U.S.C. 551(4). The supplementary 
materials do not create rights or responsibilities that are binding on 
any person, party, or other entity (including any authority of the 
Government of the United States whether or not included in the 
definition of ``agency'' in 5 U.S.C. 551(1)). Failure to comply with 
matter set forth in the supplementary materials does not, of itself, 
constitute error, although these materials may refer to requirements in 
the rules set forth in the Executive Order or established by other 
legal authorities (for example, binding judicial precedents applicable 
to courts-martial) that are based on sources of authority independent 
of the supplementary materials. See Appendix 21 in this Manual.
    The 1995 amendment to paragraph 4 of the Preamble eliminated the 
practice of identifying the Manual for Courts-Martial, United States, 
by a particular year. Historically the Manual had been published in its 
entirety sporadically (e.g., 1917, 1921, 1928, 1949, 1951, 1969, and 
1984) with amendments to it published piecemeal. It was therefore 
logical to identify the Manual by the calendar year of publication, 
with periodic amendments identified as ``Changes'' to the Manual. 
Beginning in 1995, however, a new edition of the Manual was published 
in its entirety and a new naming convention was adopted. See Exec. 
Order No. 12960 of May 12, 1995. Beginning in 1995, the Manual was to 
be referred to as ``Manual for Courts-Martial, United States (19xx 
edition).'' In 2013, the Preamble was amended to identify new Manuals 
based on their publication date.
    Amendments made to the Manual can be researched in the relevant 
Executive Order as referenced in Appendix 25. Although the Executive 
Orders were removed from Appendix 25 of the Manual in 2012 to reduce 
printing requirements, they can be accessed online. See Appendix 25.
    Section 4. The Discussion to Part II of the Manual for Courts-
Martial, United States, is amended as follows:
    (a) The Discussion immediately following R.C.M. 307(c)(3) is 
amended by deleting the first two Notes.
    (b) The Discussion immediately following R.C.M. 307(c)(3) is 
amended by inserting the words ``For Article 134 offenses, also refer 
to paragraph 60c(6) in Part IV.'' after the words ``How to draft 
specifications.''
    (c) The Discussion immediately following R.C.M. 307(c)(3) is 
amended by deleting the Note directly following the words ``(G) 
Description of offense.''
    (d) Part (G)(i) in the Discussion immediately following R.C.M. 
307(c)(3) is amended to read as follows:
    ``(i) Elements. The elements of the offense must be alleged, either 
expressly or by necessary implication, except that Article 134 
specifications must expressly allege the terminal element. See 
paragraph 60.c.(6) in Part IV. If a specific intent, knowledge, or 
state of mind is an element of the offense, it must be alleged.''
    (e) Part (G)(v) in the Discussion immediately following R.C.M. 
307(c)(3) is inserted to read as follows:
    ``(v) Lesser Included Offenses. The elements of the contemplated 
lesser included offense should be compared with the elements of the 
greater offense to determine if the elements of the lesser offense are 
derivative of the greater offense and vice versa. See discussion 
following paragraph 3.b.(1)(c) in Part IV and the related analysis in 
Appendix 23.''
    (f) The note immediately following R.C.M. 307(c)(4) is deleted and 
Discussion is inserted to read as follows:
    ``The prohibition against unreasonable multiplication of charges 
addresses those features of military law that increase the potential 
for overreaching in the exercise of prosecutorial discretion. It is 
based on reasonableness, and has no foundation in Constitutional 
rights. To determine if charges are unreasonably multiplied, see R.C.M. 
906(b)(12). Because prosecutors are free to charge in the alternative, 
it may be reasonable to charge two or more offenses that arise from one 
transaction if sufficient doubt exists as to the facts or the law. In 
no case should both an offense and a lesser included offense thereof be 
separately charged. See also Part IV, paragraph 3, and R.C.M. 601(e)(2) 
concerning referral of several offenses.''
    (g) The Discussion immediately following R.C.M. 701(e) is amended 
by

[[Page 78583]]

adding the following after ``retribution for such testimony'':
    ``Counsel must remain cognizant of professional responsibility 
rules regarding communicating with represented persons.''
    (h) The Discussion immediately following R.C.M. 809(a) is amended 
to read as follows:
    ``Article 48 makes punishable ``direct'' contempt, as well as 
``indirect'' or ``constructive'' contempt. ``Direct'' contempt is that 
which is committed in the presence of the court-martial or its 
immediate proximity. ``Presence'' includes those places outside the 
courtroom itself, such as waiting areas, deliberation rooms, and other 
places set aside for the use of the court-martial while it is in 
session. ``Indirect'' or ``constructive'' contempt is non-compliance 
with lawful writs, processes, orders, rules, decrees, or commands of 
the court-martial. A ``direct'' or ``indirect'' contempt may be 
actually seen or heard by the court-martial, in which case it may be 
punished summarily. See subsection (b)(1) of this Rule. A ``direct'' or 
``indirect'' contempt may also be a contempt not actually observed by 
the court-martial, for example, when an unseen person makes loud 
noises, whether inside or outside the courtroom, which impede the 
orderly progress of the proceedings. In such a case the procedures for 
punishing contempt are more extensive. See subsection (b)(2) of this 
Rule.
    The words ``any person,'' as used in Article 48, include all 
persons, whether or not subject to military law, except the military 
judge and foreign nationals outside the territorial limits of the 
United States who are not subject to the code. The military judge may 
order the offender removed whether or not contempt proceedings are 
held. It may be appropriate to warn a person whose conduct is improper 
that persistence in a course of behavior may result in removal or 
punishment for contempt. See R.C.M. 804, 806.
    Each finding of contempt may be separately punished.
    A person subject to the code who commits contempt may be tried by 
court-martial or otherwise disciplined under Article 134 for such 
misconduct in addition to or instead of punishment for contempt. See 
paragraph 108, Part IV; see also Article 98. The 2011 amendment of 
Article 48 expanded the contempt power of military courts to enable 
them to enforce orders, such as discovery orders or protective orders 
regarding evidence, against military or civilian attorneys. Persons not 
subject to military jurisdiction under Article 2, having been duly 
subpoenaed, may be prosecuted in Federal civilian court under Article 
47 for neglect or refusal to appear or refusal to qualify as a witness 
or to testify or to produce evidence.''
    (i) The Discussion immediately following R.C.M. 906(b)(5) is 
amended to read as follows:
    ``Each specification may state only one offense. R.C.M. 307(c)(4). 
A duplicitous specification is one which alleges two or more separate 
offenses. Lesser included offenses (see paragraph 3, Part IV) are not 
separate, nor is a continuing offense involving separate acts. The sole 
remedy for a duplicitous specification is severance of the 
specification into two or more specifications, each of which alleges a 
separate offense contained in the duplicitous specification. However, 
if the duplicitousness is combined with or results in other defects, 
such as misleading the accused, other remedies may be appropriate. See 
subsection (b)(3) of this rule. See also R.C.M. 907(b)(3).''
    (j) The Discussion immediately following R.C.M. 906(b)(12) is 
amended to read as follows:
    ``Unreasonable multiplication of charges as applied to findings and 
sentence is a limitation on the military's discretion to charge 
separate offenses and does not have a foundation in the Constitution. 
The concept is based on reasonableness and the prohibition against 
prosecutorial overreaching. In contrast, multiplicity is grounded in 
the Double Jeopardy Clause of the Fifth Amendment. It prevents an 
accused from being twice punished for one offense if it is contrary to 
the intent of Congress. See R.C.M. 907(b)(3). Therefore, a motion for 
relief from unreasonable multiplication of charges as applied to 
findings and sentence differs from a motion to dismiss on the grounds 
of multiplicity.
    The following non-exhaustive factors should be considered when 
determining whether two or more offenses are unreasonably multiplied: 
whether the specifications are aimed at distinctly separate criminal 
acts; whether they represent or exaggerate the accused's criminality; 
whether they unreasonably increase his or her exposure to punishment; 
and whether they suggest prosecutorial abuse of discretion in drafting 
of the specifications. Because prosecutors are permitted to charge in 
the alternative based on exigencies of proof, a ruling on this motion 
ordinarily should be deferred until after findings are entered.''
    (k) The Discussion immediately following R.C.M. 907(b)(3) is 
amended to read as follows:
    ``Multiplicity is a legal concept, arising from the Double Jeopardy 
Clause of the Fifth Amendment, which provides that no person shall be 
put in jeopardy twice for the same offense. Absent legislative intent 
to the contrary, an accused cannot be convicted and punished for 
violations of two or more statutes if those violations arise from a 
single act. Where Congress intended to impose multiple punishments for 
the same act, imposition of such sentence does not violate the 
Constitution.
    Multiplicity differs from unreasonable multiplication of charges. 
If two offenses are not multiplicious, they nonetheless may constitute 
an unreasonable multiplication of charges as applied to findings or 
sentence. See R.C.M. 906(b)(12). Unreasonable multiplication of charges 
is a limitation on the military's discretion to charge separate 
offenses. It does not have a foundation in the Constitution; it is 
based on reasonableness and the prohibition against prosecutorial 
overreaching. The military judge is to determine, in his or her 
discretion, whether the charges constitute unreasonable multiplication 
of charges as applied to findings or sentencing. See R.C.M. 906(b)(12).
    To determine if two charges are multiplicious, the practitioner 
should first determine whether they are based on separate acts. If so, 
the charges are not multiplicious because separate acts may be charged 
and punished separately. If the charges are based upon a single act, 
the practitioner should next determine if Congress intended to impose 
multiple convictions and punishments for the same act. When there is no 
overt expression of congressional intent in the relevant statutes, such 
intent may be inferred based on the elements of the charged statutes 
and their relationship to each other or other principles of statutory 
interpretation. If each statute contains an element not contained in 
the other, it may be inferred that Congress intended they be charged 
and punished separately. Likewise, if each statute contains the same 
elements, it may be inferred that Congress did not intend they be 
charged and punished separately. A lesser included offense will always 
be multiplicious if charged separately, but offenses do not have to be 
lesser included to be multiplicious.
    Ordinarily, a specification should not be dismissed for 
multiplicity before trial. The less serious of any multiplicious 
specifications shall be dismissed after findings have been reached. Due 
consideration must be given, however, to possible post-trial or

[[Page 78584]]

appellate action with regard to the remaining specification.''
    (l) The Discussion immediately following R.C.M. 910(a)(1) is 
amended to read as follows:
    ``See paragraph 3, Part IV, concerning lesser included offenses. 
When the plea is to a lesser included offense without the use of 
exceptions and substitutions, the defense counsel should provide a 
written revised specification to be included in the record as an 
appellate exhibit.
    A plea of guilty to a lesser included offense does not bar the 
prosecution from proceeding on the offense as charged. See also 
subsection (g) of this rule.
    A plea of guilty does not prevent the introduction of evidence, 
either in support of the factual basis for the plea, or, after findings 
are entered, in aggravation. See R.C.M. 1001(b)(4).''
    (m) The Discussion immediately following R.C.M. 916(j)(2) is 
amended to read as follows:
    ``Examples of ignorance or mistake which need only exist in fact 
include: ignorance of the fact that the person assaulted was an 
officer; belief that property allegedly stolen belonged to the accused; 
belief that a controlled substance was really sugar.
    Examples of ignorance or mistake which must be reasonable as well 
as actual include: belief that the accused charged with unauthorized 
absence had permission to go; belief that the accused had a medical 
``profile'' excusing shaving as otherwise required by regulation. Some 
offenses require special standards of conduct (see, for example, 
paragraph 68, Part IV, Dishonorable failure to maintain sufficient 
funds); the element of reasonableness must be applied in accordance 
with the standards imposed by such offenses.
    Examples of offenses in which the accused's intent or knowledge is 
immaterial include: Any rape of a child, or any sexual assault or 
sexual abuse of a child when the child is under 12 years old. However, 
such ignorance or mistake may be relevant in extenuation and 
mitigation.
    See subsection (l)(1) of this rule concerning ignorance or mistake 
of law.''
    (n) The Discussion immediately following R.C.M. 918(a)(1) is 
amended to read as follows:
    ``Exceptions and Substitutions. One or more words or figures may be 
excepted from a specification and, when necessary, others substituted, 
if the remaining language of the specification, with or without 
substitutions, states an offense by the accused which is punishable by 
the court-martial. Changing the date or place of the offense may, but 
does not necessarily, change the nature or identity of an offense.
    If A and B are joint accused and A is convicted but B is acquitted 
of an offense charged, A should be found guilty by excepting the name 
of B from the specification as well as any other words indicating the 
offense was a joint one.
    Lesser Included Offenses. If the evidence fails to prove the 
offense charged but does prove an offense necessarily included in the 
offense charged, the fact finder may find the accused not guilty of the 
offense charged but guilty of the lesser included offense. See 
paragraph 3 of Part IV concerning lesser included offenses.
    Offenses arising from the same act or transaction. The accused may 
be found guilty of two or more offenses arising from the same act or 
transaction, whether or not the offenses are separately punishable. But 
see R.C.M. 906(b)(12); 907(b)(3)(B); 1003(c)(1)(C).''
    (o) The note immediately following R.C.M. 1003(c)(1)(C) is deleted, 
and the following is added immediately following the last paragraph of 
the Discussion:
    ``Multiplicity is addressed in R.C.M. 907(b)(3)(B). Unreasonable 
multiplication of charges is addressed in R.C.M. 906(b)(12).''
    Section 5. The Discussion to Part IV of the Manual for Courts-
Martial, United States, is amended as follows:
    (a) The Discussion immediately following paragraph 3.b.(1)(c) is 
amended to read as follows:
    ``The ``elements test'' is the proper method for determining lesser 
included offenses. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 
2010); Schmuck v. United States, 489 U.S. 705 (1989); Appendix 23 of 
this Manual, Art. 79. Paragraph 3.b.(1) was amended to comport with the 
elements test, which requires that the elements of the lesser offense 
must be a subset of the elements of the charged offense. The elements 
test does not require identical statutory language, and use of normal 
principles of statutory interpretation is permitted. The elements test 
is necessary to safeguard the due process requirement of notice to a 
criminal defendant.''
    (b) The following Discussion is added immediately after paragraph 
3.b.(5):
    ``Practitioners must consider lesser included offenses on a case-
by-case basis. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); 
United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010); discussion 
following paragraph 3.b.(1)(c) above. The lesser included offenses 
listed in Appendix 12A were amended in 2016 to comport with the 
elements test; however, practitioners must analyze each lesser included 
offense on a case-by-case basis. See Appendix 23 of this Manual, 
Article 79.''
    (c) The following Discussion is added immediately after paragraph 
60.b:
    ``The terminal element is merely the expression of one of the 
clauses under Article 134. See paragraph c below for an explanation of 
the clauses and rules for drafting specifications. More than one clause 
may be alleged and proven; however, proof of only one clause will 
satisfy the terminal element. For clause 3 offenses, the military judge 
may judicially notice whether an offense is capital. See Mil. R. Evid. 
202.''
    (d) The following Discussion is added immediately after paragraph 
60.c.(6)(a):
    ``Clauses 1 and 2 are theories of liability that must be expressly 
alleged in a specification so that the accused will be given notice as 
to which clause or clauses to defend against. The words ``to the 
prejudice of good order and discipline in the armed forces'' encompass 
both paragraph c.(2)(a), prejudice to good order and discipline, and 
paragraph c.(2)(b), breach of custom of the Service. A generic sample 
specification is provided below:
    ``In that ____, (personal jurisdiction data), did (at/on board 
location), on or about __ 20__, (commit elements of Article 134 clause 
1 or 2 offense), and that said conduct (was to the prejudice of good 
order and discipline in the armed forces) (and) (was of a nature to 
bring discredit upon the armed forces).''
    If clauses 1 and 2 are alleged together in the terminal element, 
the word ``and'' should be used to separate them. Any clause not proven 
beyond a reasonable doubt should be excepted from the specification at 
findings. See R.C.M. 918(a)(1). See also Appendix 23 of this Manual, 
Art. 79. Although using the conjunctive ``and'' to connect the two 
theories of liability is recommended, a specification connecting the 
two theories with the disjunctive ``or'' is sufficient to provide the 
accused reasonable notice of the charge against him. See Appendix 23 of 
this Manual, Art. 134.''
    (e) The following replaces the paragraph below ``Discussion'' 
following paragraph 60.c.(6)(b):
    ``The words ``an offense not capital'' are sufficient to provide 
notice to the accused that a clause 3 offense has been charged and are 
meant to include all crimes and offenses not capital. A generic sample 
specification for clause 3 offenses is provided below:

[[Page 78585]]

    ``In that ____, (personal jurisdiction data), did (at/on board 
location), on or about __ 20__, (commit: address each element), an 
offense not capital, in violation of (name or citation of statute).''
    In addition to alleging each element of the federal statute, 
practitioners should consider including, when appropriate and 
necessary, words of criminality (e.g., wrongfully, knowingly, or 
willfully).''
    Section 6. Appendix 21 of the Manual for Courts-Martial, United 
States, is amended as follows:
    (a) R.C.M. 306, the last paragraph beginning with ``2016 
Amendment,'' is amended to read as follows:
    ``2016 Amendment: R.C.M. 306(e) implements Section 534(b) of the 
National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 
19 December 2014.''
    (b) R.C.M. 307(c)(3), after the paragraph beginning with the words, 
``2012 Amendment,'' and prior to the line beginning with the words, 
``The sources of the lettered subsection'' add the following:
    ``2016 Amendment: The two notes added in 2012 are removed. The 
notes were originally added to address the requirement to expressly 
state the terminal element in specifications under Article 134 and to 
address lesser included offenses. See United States v. Ballan, 71 M.J. 
28 (C.A.A.F. 2012); United States v. Fosler, 70 M.J. 225 (C.A.A.F. 
2011); United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). In 2016, 
the Manual was amended to require the terminal element be expressed in 
Article 134 specifications and to alter the definition of lesser 
included offenses under Article 79. See paragraphs 3 and 60.c.(6) in 
Part IV of this Manual.''
    (c) R.C.M. 307(c)(3)(A), after the paragraph beginning with the 
words ``Sample specifications'' delete the paragraph beginning with the 
words the ``2012 Amendment.''
    (d) R.C.M. 307(c)(3)(G), after the paragraph beginning with the 
words ``Description of offense.'' delete the paragraph beginning with 
the words the ``2012 Amendment,'' and insert in its place:
    ``2016 Amendment: The note added in 2012 is removed. The note was 
originally added to address the requirement to expressly state the 
terminal element in Article 134 specifications. See United States v. 
Ballan, 71 M.J. 28 (C.A.A.F. 2012); United States v. Fosler, 70 M.J. 
225 (C.A.A.F. 2011).''
    (e) R.C.M. 307(c)(3)(G)(i), insert the following language as a new 
paragraph after the existing paragraph:
    ``2016 Amendment: This subparagraph was amended and reflects the 
removal of a note.''
    (f) R.C.M. 307(c)(3)(G)(v), insert the following language:
    ``2016 Amendment: Subparagraph (v) was added to address lesser 
included offenses and refer practitioners to Article 79 and new 
Appendix 12A. See paragraph 3 in Part IV and Appendix 12A.''
    (g) R.C.M. 307(c)(4), after the paragraph beginning with the words 
``2005 Amendment'' delete the paragraph beginning with the words the 
``2012 Amendment,'' and insert in its place:
    ``2016 Amendment: The discussion section was added to R.C.M. 
307(c)(4) to clarify the ambiguity between the two distinct concepts of 
multiplicity and unreasonable multiplication of charges. For analysis 
related to multiplicity, see R.C.M. 907(b)(3)(B) in this Appendix. For 
analysis related to unreasonable multiplication of charges, see R.C.M. 
906(b)(12) in this Appendix.
    Nothing in the rule or the discussion section should be construed 
to imply that it would be overreaching for a prosecutor to bring 
several charges against an accused for what essentially amounts to one 
transaction if there is a valid legal reason to do so. For example, 
prosecutors may charge two offenses for exigencies of proof, which is a 
long accepted practice in military law. See, e.g., United States v. 
Morton, 69 M.J. 12 (C.A.A.F. 2010). The discussion section emphasizes 
that a prosecutor is not overreaching or abusing his or her discretion 
merely because he or she charges what is essentially one act under 
several different charges or specifications.
    The language in the discussion section of the 2012 edition of the 
Manual referring to United States v. Campbell, 71 M.J. 19 (C.A.A.F. 
2012), was removed because it is no longer necessary, as the rules 
themselves have been edited to remove any reference to ``multiplicious 
for sentencing.'' The example was removed from the discussion section 
because it overly generalized the concept of unreasonable 
multiplication of charges.''
    (h) R.C.M. 701(e), after the paragraph beginning with the words, 
``1986 Amendment,'' and immediately before subparagraph (f), insert the 
following language:
    ``2016 Amendment: This rule implements Article 46(b), enacted by 
section 1704 of the National Defense Authorization Act for Fiscal Year 
2014, P.L. 113-66, 26 December 2013, as amended by section 531(b) of 
the Carl Levin and Howard P. ``Buck'' McKeon National Defense 
Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 
2014.''
    (i) R.C.M. 906(b)(12), delete the paragraph beginning with the 
words the ``2012 Amendment,'' and insert in its place:
    ``2016 Amendment: This rule and related discussion is the focal 
point for addressing unreasonable multiplication of charges. If a 
practitioner seeks to raise a claim for multiplicity, that concept is 
addressed in R.C.M. 907(b)(3)(B) and related discussion. This rule has 
been amended. The Court of Appeals for the Armed Forces has recognized 
that practitioners and the courts have routinely confused the concepts 
of multiplicity and unreasonable multiplication of charges. See, e.g., 
United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (``the terms 
multiplicity, multiplicity for sentencing, and unreasonable 
multiplication of charges in military practice are sometimes used 
interchangeably as well as with uncertain definition''); United States 
v. Baker, 14 M.J. 361, 372 (C.M.A. 1983) (Cook, J. dissenting) 
(``[t]hat multiplicity for sentencing is a mess in the military justice 
system is a proposition with which I believe few people familiar with 
our system would take issue'').
    Multiplicity and unreasonable multiplication of charges are two 
distinct concepts. Unreasonable multiplication of charges as applied to 
findings and sentence is a limitation on the prosecution's discretion 
to charge separate offenses. Unreasonable multiplication of charges 
does not have a foundation in the Constitution but is instead based on 
the concept of reasonableness and is a prohibition against 
prosecutorial overreaching. In contrast, multiplicity is based on the 
Double Jeopardy Clause of the Fifth Amendment and prevents an accused 
from being twice punished for one offense if it is contrary to the 
intent of Congress. A charge may be found not to be multiplicious but 
at the same time it may be dismissed because of unreasonable 
multiplication. See United States v. Quiroz, 55 M.J. 334, 337-38 
(C.A.A.F. 2001).
    Use of the term ``multiplicity (or multiplicious) for sentencing'' 
is inappropriate. If a charge is multiplicious, meaning that it 
violates the Constitutional prohibition against Double Jeopardy, it 
necessarily results in dismissal of the multiplied offenses, therefore 
obviating any issue on sentencing with respect to that charge. 
Campbell, 71 M.J. at 23. A charge should not be found multiplicious for 
sentencing but not for findings. Thus,

[[Page 78586]]

the more appropriate term for the military judge's discretionary review 
of the charges at sentencing is ``unreasonable multiplication of 
charges as applied to sentence.'' Id. at 24. The rule was changed to 
remove ``multiplicity for sentencing'' from the Manual, eliminating 
confusion and misuse.
    Subparagraphs (i) and (ii) were added to the rule. They clarify the 
distinction between unreasonable multiplication of charges as applied 
to findings and to sentence. Although these concepts have existed for 
years (see Michael J. Breslin & LeEllen Coacher, Multiplicity and 
Unreasonable Multiplication of Charges: A Guide to the Perplexed, 45 
A.F. L. Rev. 99 (1998) for a history of the terms), they were not 
defined in previous editions of the Manual. The definitions were 
adopted from Quiroz, Campbell, and recommendations from Christopher S. 
Morgan, Multiplicity: Reconciling the Manual for Courts-Martial, 63 
A.F. L. Rev. 23 (2009). It is possible that two offenses are not 
unreasonably multiplied for findings but are so for sentencing; these 
additions explain how this can be so. See, e.g., Campbell, 71 M.J. at 
25 (military judge did not abuse his discretion by finding that there 
was not an unreasonable multiplication of charges as applied to 
findings but that there was an unreasonable multiplication of charges 
as applied to sentence).
    The discussion sections were added to address concerns that CAAF 
voiced in dicta in Campbell. In previous editions of the Manual, 
military judges often used the discussion section in R.C.M. 1003(c)(1) 
to determine when relief was warranted for unreasonable multiplication 
of charges as applied to sentence. The Campbell court stated in a 
footnote: ``It is our view that after Quiroz, the language in the 
Discussion to R.C.M. 1003(c)(1)(C) regarding `a single impulse or 
intent,' is dated and too restrictive. The better approach is to allow 
the military judge, in his or her discretion, to merge the offense for 
sentencing purposes by considering the Quiroz factors and any other 
relevant factor. . . .'' Campbell, 71 M.J. at 24 n.9. The Discussion 
was changed to address the Quiroz factors and remove any reference to 
the ``single impulse or intent'' test, as suggested by CAAF. The 
committee also decided to move the Discussion section from R.C.M. 
1003(b)(8)(C) to this rule because R.C.M. 1003 deals exclusively with 
sentencing and a motion for appropriate relief due to unreasonable 
multiplication of charges can be raised as an issue for findings or for 
sentence under this Rule. Therefore, it is more appropriate to address 
the issue here.
    For more information on multiplicity and how it relates to 
unreasonable multiplication of charges, see Michael J. Breslin & 
LeEllen Coacher, Multiplicity and Unreasonable Multiplication of 
Charges: A Guide to the Perplexed, 45 A.F. L. Rev. 99 (1998); 
Christopher S. Morgan, Multiplicity: Reconciling the Manual for Courts-
Martial, 63 A.F. L. Rev. 23 (2009); Gary E. Felicetti, Surviving the 
Multiplicty/LIO Family Vortex, Army Law., Feb. 2011, at 46.
    The language in the discussion section of the 2012 edition of the 
Manual referring to the Campbell decision was removed because it is no 
longer necessary, as the rules themselves have been edited to remove 
any reference to ``multiplicious for sentencing'' and additional 
discussion sections were added to eliminate any confusion with the 
terms.''
    (j) R.C.M. 907(b)(3)(B), insert the following language as a new 
paragraph after the existing paragraph:
    ``2016 Amendment: This rule and related discussion is the focal 
point for addressing claims of multiplicity. If a practitioner seeks to 
raise a claim for unreasonable multiplication of charges, that concept 
is addressed in R.C.M. 906(b)(12) and related discussion. The heading 
of this rule, which was added in 2016, signifies that this rule deals 
exclusively with multiplicity, and not unreasonable multiplication of 
charges. The discussion section of this rule was amended because the 
committee believed that a more thorough definition of multiplicity was 
appropriate in light of CAAF's suggestion in United States v. Campbell, 
71 M.J. 19, 23 (C.A.A.F. 2012), that the concepts of multiplicity and 
unreasonable multiplication of charges are often confounded.
    The discussion of multiplicity is derived from the Supreme Court's 
holding in Blockburger v. United States, 284 U.S. 299 (1932), and CMA's 
holding in United States v. Teters, 37 M.J. 370 (C.M.A. 1993). The 
Court in Blockburger wrote: ``[W]here the same act or transaction 
constitutes a violation of two distinct statutory provisions, the test 
to be applied to determine whether there are two offenses or only one, 
is whether each provision requires proof of a fact which the other does 
not.'' Blockburger, 284 U.S. at 304. Military courts departed from the 
Blockburger analysis; however, the CMA's decision in Teters clearly re-
aligned the military courts with the federal courts, and multiplicity 
is now determined in the military courts by the Blockburger/Teters 
analysis outlined in the discussion section. Any reference to the 
``single impulse'' or ``fairly embraced'' tests is outdated and should 
be avoided.
    Two offenses that arise from the same transaction may not be 
multiplicious, even if each does not require proof of an element not 
required to prove the other, if the intent of Congress was that an 
accused could be convicted of and punished for both offenses arising 
out of the same act. The Blockburger/Teters analysis applies only when 
Congress did not intend that the offenses be treated as separate. If 
Congress intended to subject an accused to multiple punishments for the 
same transaction, and that intent is clear, the Blockburger/Teters 
elements comparison is unnecessary. See, e.g., Missouri v. Hunter, 459 
U.S. 359, 368-69 (1983) (``[S]imply because two criminal statutes may 
be construed to proscribe the same conduct under the Blockburger test 
does not mean that the Double Jeopardy Clause precludes the imposition, 
in a single trial, of cumulative punishments pursuant to those 
statutes. . . . Where . . . a legislature specifically authorizes 
cumulative punishment under two statutes, regardless of whether those 
two statutes proscribe the `same' conduct under Blockburger, a court's 
task of statutory construction is at an end and the prosecutor may seek 
and the trial court or jury may impose cumulative punishment under such 
statutes in a single trial.'').
    The language in the discussion section of the 2012 edition of the 
Manual referring to the Campbell decision was removed because it is no 
longer necessary, as the Rules themselves have been edited to remove 
any reference to ``multiplicious for sentencing'' and additional 
discussion sections were added to eliminate any confusion with the 
terms.''
    (k) R.C.M. 916(b), insert the following language immediately 
following the paragraph beginning with the words ``2007 Amendment'':
    ``2016 Amendment: Changes to this paragraph are based on section 
541 of the National Defense Authorization Act for Fiscal Year 2012, 
P.L. 112-81, 31 December 2011, which superseded the previous paragraph 
45, ``Rape, sexual assault and other sexual misconduct,'' in its 
entirety and replaces paragraph 45 with ``Rape and sexual assault 
generally.'' In addition, the National Defense Authorization Act for 
Fiscal Year 2012 added paragraph 45b, ``Rape and sexual assault of a 
child,'' and paragraph 45c, ``Other sexual misconduct.''
    (l) R.C.M. 916(j), insert the following language immediately 
following the

[[Page 78587]]

paragraph beginning with the words ``2007 Amendment'':
    ``2016 Amendment: Changes to this paragraph are based on section 
541 of the National Defense Authorization Act for Fiscal Year 2012, 
P.L. 112-81, 31 December 2011, which superseded the previous paragraph 
45, ``Rape, sexual assault and other sexual misconduct,'' in its 
entirety and replaces paragraph 45 with ``Rape and sexual assault 
generally.'' In addition, the National Defense Authorization Act for 
Fiscal Year 2012 added paragraph 45b, ``Rape and sexual assault of a 
child,'' and paragraph 45c, ``Other sexual misconduct.''
    Paragraph (j)(3) was deleted. The rule reflects changes to Article 
120. The Court of Appeals for the Armed Forces ruled that the statutory 
burden shift to the accused in the 2007 version of Article 120 was 
unconstitutional and the subsequent burden shift to the government to 
disprove consent beyond a reasonable doubt once the accused had raised 
the affirmative defense of consent by a preponderance of the evidence 
resulted in a legal impossibility. United States v. Prather, 69 M.J. 
338 (C.A.A.F. 2011); United States v. Medina, 69 M.J. 462 (C.A.A.F. 
2011).''
    (m) R.C.M. 920(e)(5)(D), insert the following language immediately 
following the paragraph beginning with the words ``2007 Amendment'':
    ``2016 Amendment: Changes to this paragraph are based on section 
541 of the National Defense Authorization Act for Fiscal Year 2012, 
P.L. 112-81, 31 December 2011, which superseded the previous paragraph 
45, ``Rape, sexual assault and other sexual misconduct,'' in its 
entirety and replaces paragraph 45 with ``Rape and sexual assault 
generally.'' In addition, the National Defense Authorization Act for 
Fiscal Year 2012 added paragraph 45b, ``Rape and sexual assault of a 
child,'' and paragraph 45c, ``Other sexual misconduct.'' ''
    (n) R.C.M. 1003(c)(1)(C), delete the paragraph beginning with the 
words the ``2012 Amendment'' and insert in its place:
    ``2016 Amendment: This rule was amended. The language in previous 
editions of the Manual seemed to suggest that an accused could not be 
punished for offenses that were not separate. This is true only if 
there is no express statement from Congress indicating that an accused 
can be punished for two or more offenses that are not separate. See 
R.C.M. 907(b)(3) and related analysis. Subsections (i) and (ii) were 
added to distinguish between claims of multiplicity and unreasonable 
multiplication of charges. As the two concepts are distinct, it is 
important to address them in separate subsections. See R.C.M. 
906(b)(12) for claims of unreasonable multiplication of charges and 
R.C.M. 907(b)(3)(B) for claims of multiplicity.
    Additionally, the committee decided to move the discussion of the 
factors in United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), from 
this rule to R.C.M. 906(b)(12) because the factors apply to 
unreasonable multiplication of charges as applied to findings as well 
as sentence. Because this Rule refers only to sentencing, it is more 
appropriate to address the military judge's determination of 
unreasonable multiplication in R.C.M. 906(b)(12), because that Rule 
covers both findings and sentence. See R.C.M. 906(b)(12) and related 
analysis.
    The language in the discussion section of the 2012 edition of the 
Manual referring to the Campbell decision was removed. Such language is 
no longer necessary, as the Rules themselves have been edited to remove 
any reference to ``multiplicious for sentencing'' and the discussion 
section of R.C.M. 906(b)(12) addresses the Quiroz factors.''
    (o) R.C.M. 1004(c)(7)(B), insert the following language immediately 
following the paragraph beginning with the words ``1994 Amendment'' and 
immediately prior to the paragraph beginning with the words ``1986 
Amendment'':
    ``2016 Amendment: Changes to this paragraph reflect section 541 of 
the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-
81, 31 December 2011, which superseded the previous paragraph 45, 
``Rape, sexual assault and other sexual misconduct,'' in its entirety 
and replaces paragraph 45 with ``Rape and sexual assault generally.'' 
In addition, the National Defense Authorization Act for Fiscal Year 
2012 added paragraph 45b, ``Rape and sexual assault of a child,'' and 
paragraph 45c, ``Other sexual misconduct.'' ''
    (p) R.C.M. 1004(c)(8), insert the following language immediately 
following the paragraph beginning with the words ``1991 Amendment'':
    ``2016 Amendment: Changes to this paragraph reflect section 541 of 
the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-
81, 31 December 2011, which superseded the previous paragraph 45, 
``Rape, sexual assault and other sexual misconduct,'' in its entirety 
and replaces paragraph 45 with ``Rape and sexual assault generally.'' 
In addition, the National Defense Authorization Act for Fiscal Year 
2012 added paragraph 45b, ``Rape and sexual assault of a child,'' and 
paragraph 45c, ``Other sexual misconduct.'' ''
    Section 7. Appendix 23 of the Manual for Courts-Martial, United 
States, is amended as follows:
    (a) Paragraph 3.b.(4), Article 79, Lesser included offenses, 
Specific lesser included offenses, is amended by deleting the 
paragraphs beginning with the words ``2012 Amendment'' and ending with 
``(C.A.A.F. 2008).'' and inserting in their place:
    ``2016 Amendment: See analysis in paragraph 3.b.(1) above. Lesser 
included offenses (LIO) listings were removed from each punitive 
article in paragraphs 1-113 (except paragraphs 1 and 3), Part IV, and 
were moved to a new Appendix 12A. The LIO listings are determined based 
on the elements of the greater offense, but are not binding. Therefore, 
practitioners should use Appendix 12A only as a guide. To determine if 
an offense is lesser included, the elements test must be used. United 
States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010). The offenses are not 
required to possess identical statutory language; rather, the court 
uses normal principles of statutory construction to determine the 
meaning of each element. See id. at 470-73; United States v. Oatney, 45 
M.J. 185 (C.A.A.F. 1996); Schmuck v. United States, 489 U.S. 705 
(1989).
    Article 134 offenses generally will not be lesser included offenses 
of enumerated offenses in Articles 80-133. See United States v. 
Girouard, 70 M.J. 5 (C.A.A.F. 2011); United States v. McMurrin, 70 M.J. 
15 (C.A.A.F. 2011). Article 134 specifications must contain the 
``terminal element.'' See paragraphs 60.b and 60.c.(6)(a) in Part IV. 
See also United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011); United 
States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012); R.C.M. 307(c)(3).''
    (b) Paragraph 43.a, Article 118, Murder, is amended by adding the 
following language:
    ``2012 Amendment: This statute was modified pursuant to section 541 
of the National Defense Authorization Act for Fiscal Year 2012, P.L. 
112-81, 31 December 2011, to conform to renamed sexual assault offenses 
in Article 120 and Article 120b. The changes took effect on 28 June 
2012.''
    (c) Paragraph 45, Article 120, Rape and sexual assault generally, 
the first paragraph of the analysis beginning with the word ``2012'' 
and ending with the number ``28'' is amended to read as follows:
    ``2012 Amendment: This paragraph was substantially revised by 
section 541 of the National Defense Authorization

[[Page 78588]]

Act for Fiscal Year 2012, P.L. 112-81, 31 December 2011. Amendments 
contained in this section took effect on 28 June 2012. Sec. 541(f), 
P.L. 112-81. On 28 June 2012, a modified paragraph 45, ``Rape and 
sexual assault generally,'' replaced the 2007 version of paragraph 45, 
``Rape, sexual assault, and other sexual misconduct.'' The analysis 
related to prior versions of Article 120 is located as follows: For 
offenses committed prior to 1 October 2007, see Appendix 27; for 
offenses committed during the period 1 October 2007 through 27 June 
2012, see Appendix 28.''
    (d) Paragraph 45, Article 120, Rape and sexual assault generally, 
is amended by deleting subparagraphs b, c, d, e, and f.
    (e) Paragraph 45, Article 120b, Rape and sexual assault of a child, 
is amended by inserting ``b'' after ``45''.
    (f) Paragraph 45b, Article 120b, Rape and sexual assault of a 
child, is amended by deleting subparagraphs b, c, d, e, and f.
    (g) Paragraph 45c, Article 120c, Other sexual misconduct, is 
amended by deleting subparagraphs b, c, d, e, and f.
    (h) Paragraph 51, Article 125, Sodomy, is amended by changing the 
title to ``Forcible Sodomy'' and adding the following language at the 
beginning:
    ``2016 Amendment: Paragraph 51 was amended pursuant to section 1707 
of the National Defense Authorization Act for Fiscal Year 2014, P.L. 
113-66, 26 December 2013. Additionally, all applicable references to 
sodomy throughout the Manual were changed to ``forcible sodomy'' to 
reflect the decriminalization of consensual sodomy under the UCMJ.''
    (i) Paragraph 60.c.(6)(a) is amended to read as follows:
    ``2016 Amendment: In 2012 the Manual was amended to address the 
changes in practice resulting from the holding in United States v. 
Fosler, 70 M.J. 225 (C.A.A.F. 2011). In 2016, the President required 
that the terminal element be expressly alleged in every Article 134 
specification.
    The President ended the historical practice of allowing the 
terminal element to be inferred from Article 134 specifications, see, 
e.g. United States v. Mayo, 12 M.J. 286 (C.M.A. 1982), and required the 
terminal element be expressly alleged to provide sufficient notice to 
the accused and for uniformity and consistency in practice. See Fosler, 
70 M.J. at 227-28. In general, when drafting specifications, the 
Government must allege every element, either expressly or by necessary 
implication. See R.C.M. 307(c)(3). However, in Article 134 
specifications, the accused must be given notice as to which clause or 
clauses he must defend against; therefore, the terminal element may not 
be inferred from a specification.
    Although a single terminal element is required, there are three 
theories of liability that would satisfy the terminal element: a 
disorder or neglect to the prejudice of good order and discipline 
(under clause 1); conduct of a nature to bring discredit upon the armed 
forces (under clause 2); or a crime or offense not capital (under 
clause 3). The three clauses are ``distinct and separate.'' Fosler, 70 
M.J. at 230. A single theory may be alleged, or clauses 1 and 2 may be 
combined. While it is not prohibited to combine clauses 1, 2, and 3 in 
one specification, such a combination is not practical.
    When charging both clauses 1 and 2, practitioners are encouraged to 
use the word ``and'' to separate the theories in one specification, 
rather than using the word ``or'' to separate the theories. 
Practitioners may also allege two separate specifications. At findings, 
the Trial Counsel or Military Judge must make certain that the record 
is clear as to whether the trier of fact found that clause 1, clause 2, 
or both clauses were proven beyond a reasonable doubt. Using the word 
``and'' to separate clauses 1 and 2 in the terminal element allows the 
trier of fact to except the unproven clause from the specification. 
This approach forces intellectual rigor in analyzing each clause as 
distinct and separate. Nothing in this analysis should be read to 
suggest that a specification connecting the two theories with the 
disjunctive ``or'' necessarily fails to give the accused reasonable 
notice of the charge against him. See United States v. Rauscher, 71 
M.J. 225, 226 (C.A.A.F. 2012) (per curiam) (citing Russell v. United 
States, 369 U.S. 749, 765 (1962)).''
    (j) Paragraph 60.c.(6)(b) is amended by deleting the paragraph 
beginning with the words ``2012 Amendment'' and ending ``above.'', and 
inserting in its place:
    ``2016 Amendment: New discussion was added in 2012 to address 
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). In 2016, that 
discussion was removed after paragraph 60 was amended by Executive 
Order. See analysis under subparagraph c.(6)(a) above.''
    (k) Paragraph 62.c.(2) is amended to read as follows:
    ``(2) When determining whether adulterous acts constitute the 
offense of adultery under Article 134, commanders should consider the 
listed factors. The offense of adultery is intended to prohibit 
extramarital sexual behavior that directly affects the discipline of 
the armed forces, respect for the chain of command, or maintenance of 
unit cohesion. The intent of this provision is to limit the crime of 
adultery to those situations where the negative impact to the unit is 
real rather than theorized. This provision should not be interpreted to 
criminalize sexual practices between two adults with full and mutual 
consent from each other, but rather, to punish the collateral negative 
effects of extramarital sexual activity when there exists a genuine 
nexus between that activity and the efficiency and effectiveness of the 
armed forces. Cf. United States v. Marcum, 60 M.J. 198, 204-08 
(C.A.A.F. 2004) (despite constitutionally protected liberty interest in 
private sexual behavior between consenting adults, military may 
regulate sexual conduct to the extent it could affect military order 
and discipline).
    While each commander has discretion to dispose of offenses by 
members of the command, wholly private and consensual sexual conduct 
between adults is generally not punishable under this paragraph. The 
right to engage in such conduct, however, is tempered in a military 
context by the mission of the military, the need for cohesive teams, 
and the need for obedience to orders. Cases involving fraternization or 
other unprofessional relationships may be more appropriately charged 
under Article 92 or Article 134--Fraternization. Cases involving abuse 
of authority by officers may be more appropriately charged under 
Article 133.
    Rule for Courts-Martial 306(b) advises commanders to dispose of 
alleged offenses at the lowest appropriate level. As the R.C.M. 306(b) 
discussion states, many factors must be taken into consideration and 
balanced, including, to the extent practicable, the nature of the 
offense, any mitigating or extenuating circumstances, any 
recommendations made by subordinate commanders, the interests of 
justice, military exigencies, and the effect of the decision on the 
military member and the command. The goal should be a disposition that 
is warranted, appropriate, and fair. In the case of officers, also 
consult the explanation to paragraph 59 of Part IV in deciding how to 
dispose of an allegation of adultery.''
    (l) Paragraph 90 is amended to read as follows:
``90. Article 134--(Indecent Conduct)
    Introduction. This offense is new to the Manual for Courts-Martial 
and was promulgated pursuant to Executive Order 13740 of 16 September 
2016. It

[[Page 78589]]

includes offenses previously proscribed by ``Indecent acts with 
another,'' which was deleted pursuant to Executive Order 13447 of 1 
October 2007, except that the presence of another person is not 
required. (m) Paragraph 97, Article 134 (Pandering and prostitution) is 
amended by adding the following language:
    ``2016 Amendment: Paragraph 97 was amended to broaden the 
definition of prostitution and pandering to include all sexual acts, 
not just sexual intercourse. This amendment included the removal of the 
language in paragraph 97.c suggesting that engaging in sodomy for money 
or compensation could be charged under paragraph 51 (Article 125--
Sodomy). Pursuant to section 1707 of the National Defense Authorization 
Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, consensual 
sodomy is no longer a crime under the UCMJ and Article 125 is not an 
appropriate charge for the consensual exchange of money for sodomy. The 
definition of prostitution for this offense differs from the definition 
of prostitution in Article 120c. Congress provided a broader definition 
of prostitution when criminalizing forcible pandering.

    Dated: November 3, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-26947 Filed 11-7-16; 8:45 am]
 BILLING CODE 5001-06-P