[Federal Register Volume 83, Number 100 (Wednesday, May 23, 2018)]
[Notices]
[Pages 23907-23908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09949]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DoD-2018-OS-0024]


Manual for Courts-Martial; Proposed Amendments

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

ACTION: Notice of response to public comments on proposed amendments to 
the Manual for Courts-Martial, United States (2016 ed.).

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SUMMARY: The Joint Service Committee on Military Justice (JSC) is 
publishing the response to public comments concerning amendments to the 
Manual for Courts-Martial, United States (MCM). These amendments 
include provisions implementing the Military Justice Act of 2016 and 
subsequent amendments necessitated by follow-on legislation. The 
changes concern the rules of procedure and evidence applicable in 
trials by court-martial, nonjudicial punishment proceedings, and the 
punitive articles of the Uniform Code of Military Justice. Also 
included is a proposed revision of Appendix 12A of the Manual for 
Courts-Martial concerning lesser included offenses. The approval 
authority for these changes is the President. These proposed changes 
have not been coordinated within the Department of Defense under DoD 
Directive 5500.01, ``Preparing, 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.

FOR FURTHER INFORMATION CONTACT: LT Alexandra Nica, JAGC, USN, (202) 
685-7058 or [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    On July 11, 2017 (79 FR 59938-59959), the JSC published a Notice of 
Proposed Amendments concerning procedure and evidence applicable in 
trials by court-martial, non-judicial punishment proceedings, and the 
punitive articles of the Uniform Code of Military Justice as amended by 
the Military Justice Act of 2016, Division E of the National Defense 
Authorization Act for Fiscal Year 2017 and follow-on changes made by 
the National Defense Authorization Act for Fiscal Year 2018. The Notice 
also included a proposed revision of Appendix 12A of the Manual for 
Courts-Martial concerning lesser included offenses and a Notice of 
Public Meeting to receive comments on these proposals. The public 
meeting was held on August 3, 2017. Two members of the public provided 
oral comments at the public meeting, and both members of the public 
also submitted written comments electronically. Several additional 
written comments were received electronically. All comments were 
considered by the JSC.

Public Comments

    Comments and materials received from the public are available under 
Docket ID Number DOD-2017-OS-0032, and at the following link https://www.regulations.gov/docket?D=DOD-2017-OS-0032.

Discussion of Comments and Changes

    The JSC considered each public comment and made some modifications 
to the proposed amendments accordingly.
    a. Several comments concerning orthography, grammar, and syntax 
were received and reviewed, and corrections were made throughout the 
Manual for Courts-Martial.
    b. The extensive nature of the proposed changes necessitated the 
reproduction, in full, of Parts I-V of the Manual for Courts-Martial 
and, although not a part of the proposed Executive Order or issued by 
the President, the Analyses and Discussions were set forth immediately 
following the provisions and paragraphs to which they pertained to 
facilitate review and comment on the proposed amendments. Additionally, 
Appendix 2.1 provided proposed non-binding guidance to be issued by the 
Secretary of Defense, in consultation with the Secretary of Homeland 
Security, pursuant to Article 33 (Disposition Guidance) of the Uniform 
Code of Military Justice (UCMJ), 10 U.S.C. 833. Comments were received 
suggesting changes to Analyses, Discussions, and the Appendices. These 
comments are being considered by the JSC and the Department of Defense 
in the preparation of the supplementary materials.
    c. The Department of Defense published several proposals concerning 
impaneling and excusing excess members and specifically solicited 
comments as to the optimal rule for removing excess members consistent 
with Article 36 of the Uniform Code of Military Justice. Several 
comments were received regarding the different proposals. Proposal #1, 
providing for the random assignment of numbers to remaining members by 
the military judge, was incorporated.
    d. A comment proposing a change to R.C.M. 804 to ensure that court-
martial attendance by the accused constitutes the accused's appointed 
place of duty for purposes of pay and allowance was received. The 
comment highlighted that multiple courts had granted confinement credit 
for accused who did not receive normal pay and allowances or had to pay 
for their own travel and housing during the pendency of the court-
martial. The JSC has adopted this proposal as follows:

--R.C.M. 804(a) is amended to read as follows:

    ``(a) Presence required. The accused shall be present at the 
arraignment, the time of the plea, every stage of the trial including 
sessions conducted under Article 39(a), voir dire and challenges of

[[Page 23908]]

members, the return of the findings, presentencing proceedings, and 
post-trial sessions, if any, except as otherwise provided by this rule. 
Attendance at these proceedings shall constitute the accused's 
appointed place of duty and, with respect to the accused's travel 
allowances, none of these proceedings shall constitute disciplinary 
action. This does not in any way limit authority to implement 
restriction, up to and including confinement, as necessary in 
accordance with R.C.M. 304 or R.C.M. 305.''
    e. A comment was received proposing changes to R.C.M. 703 and 
R.C.M. 405 to incorporate Fed. R. Crim. Proc. 17 which was created in 
2008 to comply with the requirements of the Federal Crime Victims' 
Rights Act, (``FCVRA''), codified at 18 U.S.C. 3771. The JSC has 
adopted this proposal in part as follows:

--R.C.M. 703(g)(3)(C)(2) is new and reads as follows:

    ``(2) Subpoenas for personal or confidential information about a 
victim. After preferral, a subpoena requiring the production of 
personal or confidential information about a victim named in a 
specification may be served on an individual or organization by those 
authorized to issue a subpoena under subparagraph (D) or with the 
consent of the victim. Before issuing a subpoena under this 
subparagraph and unless there are exceptional circumstances, the victim 
must be given notice so that the victim can move for relief under 
subparagraph (g)(3)(G) or otherwise object.''
    f. A comment was received suggesting the addition of a new M.R.E. 
501(e) limiting the Government to privileges identified in M.R.E. 505, 
506, and 507. These suggested changes were not incorporated; however, 
the JSC reviewed M.R.E. 505, 506, and 507 and made the following 
proposed change to M.R.E. 506.

--M.R.E. 506(b) is amended to read as follows:

    ``(b) Scope. ``Government information'' includes official 
communication and documents and other information within the custody or 
control of the Federal Government. This rule does not apply to the 
identity of an informant (Mil. R. Evid. 507).''
    g. Comments concerning the proposed changes to M.R.E. 412(c)(3) 
were received. The JSC considered all comments. As prescribed by the 
President, upon the effective date of the Executive Order, M.R.E. 
412(c)(3) will provide:
    ``(3) If the military judge determines on the basis of the hearing 
described in paragraph (2) of this subdivision that the evidence that 
the accused seeks to offer is relevant for a purpose under subdivision 
(b)(1) or (2) of this rule and that the probative value of such 
evidence outweighs the danger of unfair prejudice to the victim's 
privacy, or that the evidence is described by subdivision (b)(3) of 
this rule, such evidence shall be admissible under this rule to the 
extent an order made by the military judge specifies evidence that may 
be offered and areas with respect to which the victim may be examined 
or cross-examined. Any evidence introduced under this rule is subject 
to challenge under Mil. R. Evid. 403.''
    h. Comments were received suggesting additional changes to, R.C.M. 
1103A in Annex 1 and R.C.M. 103, 110, 305, 405, 701, 705, 809, 910, 
1109, 1114, 1202 in Annex 2. These suggested changes were not 
incorporated.
    i. Comments suggesting changes to M.R.E. 505 were received. 
Suggested changes were not incorporated.
    j. Comments were received suggesting the addition of new punitive 
articles, elimination of certain defenses, and changes to the terminal 
element of Article 134. These suggested changes were not incorporated.

    Dated: May 7, 2018.
Shelly E. Finke,
Alternate OSD Federal Register, Liaison Officer, Department of Defense.
[FR Doc. 2018-09949 Filed 5-22-18; 8:45 am]
 BILLING CODE 5001-06-P