[Federal Register Volume 81, Number 236 (Thursday, December 8, 2016)]
[Notices]
[Page 88671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29384]


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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 (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 Discussion is effective 
insofar as the Rules it supplements are effective, but may not be 
applied earlier than the date of publication in the Federal Register.

DATES: This Discussion is effective as of December 8, 2016.

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

SUPPLEMENTARY INFORMATION: The Discussion to Part IV of the Manual for 
Courts-Martial, United States, is amended as follows:
    (a) The Discussion immediately after paragraph 60.c.(6)(a) is 
amended to read as follows:
    ``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.
    Lesser included offenses are defined and explained under Article 
79; however, in 2010, the Court of Appeals for the Armed Forces 
examined Article 79 and clarified the legal test for lesser included 
offenses. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). 
Under Jones, an offense under Article 79 is ``necessarily included'' in 
the offense charged only if the elements of the lesser offense are a 
subset of the elements of the greater offense alleged. 68 M.J. at 472; 
see also discussion following paragraph 3b(1)(c) in this part and the 
related analysis in Appendix 23 of this Manual. Practitioners should 
carefully consider lesser included offenses using the elements test in 
conformity with Jones. See paragraph 3b(4) in Appendix 23 of this 
Manual. If it is uncertain whether an Article 134 offense is included 
within a charged offense, the government may plead in the alternative 
or, with the consent of the accused, the government may amend the 
charge sheet. Jones, 68 M.J. at 472-73 (referring to R.C.M. 603(d) for 
amending a charge sheet).''

    Dated: December 2, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-29384 Filed 12-7-16; 8:45 am]
 BILLING CODE 5001-06-P