[Weekly Compilation of Presidential Documents Volume 30, Number 45 (Monday, November 14, 1994)]
[Pages 2358-2362]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 12936--Amendments to the Manual for Courts-Martial, 
United States, 1984

November 10, 1994

    By the authority vested in me as President by the Constitution and 
the laws of the United States of America, including chapter 47 of title 
10, United States Code (Uniform Code of Military Justice, 10 U.S.C. 801-
946), in order to prescribe amendments to the Manual for Courts-Martial, 
United States, 1984, prescribed by Executive Order No. 12473, as amended 
by Executive Order No. 12484, Executive Order No. 12550, Executive Order 
No. 12586, Executive Order No. 12708, Executive Order No. 12767, and 
Executive Order No. 12888, it is hereby ordered as follows:
    Section 1. Part II of the Manual for Courts-Martial, United States, 
1984, is amended as follows:
    a. R.C.M. 405(g)(1)(B) is amended to read as follows:
      ``(B) Evidence. Subject to Mil. R. Evid., Section V, evidence, 
including documents or physical evidence, which is under the control of 
the Government and which is relevant to the investigation and not 
cumulative, shall be produced if reasonably available. Such evidence 
includes evidence requested by the accused, if the request is timely. As 
soon as practicable after receipt of a request by the accused for 
information which may be protected under Mil. R. Evid. 505 or 506, the 
investigating officer shall notify the person who is authorized to issue 
a protective order under subsection (g)(6) of this rule, and the 
convening authority, if different. Evidence is reasonably available if 
its significance outweighs the difficulty, expense, delay, and effect on 
military operations of obtaining the evidence.''.
    b. R.C.M. 405(g) is amended by inserting the following new 
subparagraph (6) at the end thereof:
      ``(6) Protective order for release of privileged information. If, 
prior to referral, the Government agrees to disclose to the accused 
information to which the protections afforded by Mil. R. Evid. 505 or 
Mil. R. Evid. 506 may apply, the convening authority, or other person 
designated by regulations of the Secretary of the service concerned, may 
enter an appropriate protective order, in writing, to guard against the 
compromise of information disclosed to the accused. The terms of any 
such protective order may include prohibiting the disclosure of the 
information except as authorized by the authority issuing the protective 
order, as well as those terms specified in Mil. R. Evid. 505(g)(1)(B) 
through (F) or Mil. R. Evid. 506(g)(2) through (5).''.
    c. R.C.M. 905(f) is amended to read as follows:
      ``(f) Reconsideration. On request of any party or sua sponte, the 
military judge may, prior to authentication of the record of trial, 
reconsider any ruling, other than one amounting to a finding of not 
guilty, made by the military judge.''.
    d. R.C.M. 917(f) is amended to read as follows:
    ``(f) Effect of ruling. A ruling granting a motion for a finding of 
not guilty is final when announced and may not be reconsidered. Such a 
ruling is a finding of not guilty of the affected specification, or 
affected portion thereof, and, when appropriate, of the corresponding 
charge. A ruling denying a motion for a finding of not guilty may be 
reconsidered at any time prior to authentication of the record of 
trial.''.
    e. R.C.M. 1001(b)(5) is amended to read as follows:
      ``(5) Evidence of rehabilitative potential. Rehabilitative 
potential refers to the accused's potential to be restored, through 
vocational, correctional, or therapeutic training or other corrective 
measures to a useful and constructive place in society.

[[Page 2359]]

      (A) In general. The trial counsel may present, by testimony or 
oral deposition in accordance with R.C.M. 702(g)(1), evidence in the 
form of opinions concerning the accused's previous performance as a 
servicemember and potential for rehabilitation.
      (B) Foundation for opinion. The witness or deponent providing 
opinion evidence regarding the accused's rehabilitative potential must 
possess sufficient information and knowledge about the accused to offer 
a rationally-based opinion that is helpful to the sentencing authority. 
Relevant information and knowledge include, but are not limited to, 
information and knowledge about the accused's character, performance of 
duty, moral fiber, determination to be rehabilitated, and nature and 
severity of the offense or offenses.
      (C) Bases for opinion. An opinion regarding the accused's 
rehabilitative potential must be based upon relevant information and 
knowledge possessed by the witness or deponent, and must relate to the 
accused's personal circumstances. The opinion of the witness or deponent 
regarding the severity or nature of the accused's offense or offenses 
may not serve as the principal basis for an opinion of the accused's 
rehabilitative potential.
      (D) Scope of opinion. An opinion offered under this rule is 
limited to whether the accused has rehabilitative potential and to the 
magnitude or quality of any such potential. A witness may not offer an 
opinion regarding the appropriateness of a punitive discharge or whether 
the accused should be returned to the accused's unit.
      (E) Cross-examination. On cross-examination, inquiry is permitted 
into relevant and specific instances of conduct.
      (F) Redirect. Notwithstanding any other provision in this rule, 
the scope of opinion testimony permitted on redirect may be expanded, 
depending upon the nature and scope of the cross-examination.''.
    f. R.C.M. 1003(b)(2) is amended to read as follows:
      ``(2) Forfeiture of pay and allowances. Unless atotal forfeiture 
is adjudged, a sentence to forfeiture shall state the exact amount in 
whole dollars to be forfeited each month and the number of months the 
forfeitures will last. Allowances shall be subject to forfeiture only 
when the sentence includes forfeiture of all pay and allowances. The 
maximum authorized amount of a partial forfeiture shall be determined by 
using the basic pay, retired pay, or retainer pay, as applicable, or, in 
the case of reserve component personnel on inactive-duty, compensation 
for periods of inactive-duty training, authorized by the cumulative 
years of service of the accused, and, if no confinement is adjudged, any 
sea or foreign duty pay. If the sentence also includes reduction in 
grade, expressly or by operation of law, the maximum forfeiture shall be 
based on the grade to which the accused is reduced.''.
    g. R.C.M. 1004(c) (4) is amended to read as follows:
      ``(4) That the offense was committed in such a way or under 
circumstances that the life of one or more persons other than the victim 
was unlawfully and substantially endangered, except that this factor 
shall not apply to a violation of Articles 104, 106a, or 120.''.
    h. R.C.M. 1004(c) (7) (B) is amended to read as follows:
      ``(B) The murder was committed: while the accused was engaged in 
the commission or attempted commission of any robbery, rape, aggravated 
arson, sodomy, burglary, kidnapping, mutiny, sedition, or piracy of an 
aircraft or vessel; or while the accused was engaged in the commission 
or attempted commission of any offense involving the wrongful 
distribution, manufacture, or introduction or possession, with intent to 
distribute, of a controlled substance; or while the accused was engaged 
in flight or attempted flight after the commission or attempted 
commission of any such offense.''.
    i. R.C.M. 1004(c) (7) (I) is amended to read as follows:
      ``(I) The murder was preceded by the intentional infliction of 
substantial physical harm or prolonged, substantial mental or physical 
pain and suffering to the victim. For purposes of this section, 
``substantial physical harm'' means fractures or dislocated bones, deep 
cuts, torn members of the body, serious damage to internal organs or 
other serious bodily injuries.

[[Page 2360]]

    The term ``substantial physical harm'' does not mean minor injuries, 
such as a black eye or a bloody nose. The term ``substantial mental or 
physical pain and suffering'' is accorded its common meaning and 
includes torture.''.
    j. R.C.M. 1102(b) (2) is amended to read as follows:
      ``(2) Article 39(a) sessions. An Article 39(a) session under this 
rule may be called for the purpose of inquiring into, and, when 
appropriate, resolving any matter which arises after trial and which 
substantially affects the legal sufficiency of any findings of guilty or 
the sentence. The military judge may also call an Article 39(a) session, 
upon motion of either party or sua sponte, to reconsider any trial 
ruling that substantially affects the legal sufficiency of any findings 
of guilty or the sentence.''.
    k. R.C.M. 1105(c)(1) is amended to read as follows:
      ``(1) General and special courts-martial. After a general or 
special court-martial, the accused may submit matters under this rule 
within the later of 10 days after a copy of the authenticated record of 
trial, or, if applicable, the recommendation of the staff judge advocate 
or legal officer, or an addendum to the recommendation containing new 
matter is served on the accused. If, within the 10-day period, the 
accused shows that additional time is required for the accused to submit 
such matters, the convening authority or that authority's staff judge 
advocate may, for good cause, extend the 10-day period for not more than 
20 additional days; however, only the convening authority may deny a 
request for such an extension.''.
    l. R.C.M. 1106(f)(7) is amended to read as follows:
      ``(7) New matter in addendum to recommendation. The staff judge 
advocate or legal officer may supplement the recommendation after the 
accused and counsel for the accused have been served with the 
recommendation and given an opportunity to comment. When new matter is 
introduced after the accused and counsel for the accused have examined 
the recommendation, however, the accused and counsel for the accused 
must be served with the new matter and given ten days from service of 
the addendum in which to submit comments. Substitute service of the 
accused's copy of the addendum upon counsel for the accused is permitted 
in accordance with the procedures outlined in subparagraph (f)(1) of 
this rule.''.
    Sec. 2. Part III of the Manual for Courts-Martial, United States, 
1984, is amended as follows:
    a. Mil. R. Evid. 305(d)(1)(B) is amended to read as follows:
      ``(B) The interrogation is conducted by a person subject to the 
code acting in a law enforcement capacity or the agent of such a person, 
the interrogation is conducted subsequent to the preferral of charges, 
and the interrogation concerns the offenses or matters that were the 
subject of the preferral of charges.''.
    b. Mil. R. Evid. 305(e) is amended to read as follows:
      ``(e) Presence of counsel.
      (1) Custodial interrogation. Absent a valid waiver of counsel 
under subdivision (g)(2)(B), when an accused or person suspected of an 
offense is subjected to custodial interrogation under circumstances 
described under subdivision (d)(1)(A) of this rule, and the accused or 
suspect requests counsel, counsel must be present before any subsequent 
custodial interrogation may proceed.
      (2) Post-preferral interrogation. Absent a valid waiver of counsel 
under subdivision (g)(2)(C), when an accused or person suspected of an 
offense is subjected to interrogation under circumstances described in 
subdivision (d)(1)(B) of this rule, and the accused or suspect either 
requests counsel or has an appointed or retained counsel, counsel must 
be present before any subsequent interrogation concerning that offense 
may proceed.''.
    c. Mil. R. Evid. 305(f) is amended to read as follows:
      ``(f) Exercise of rights.
      (1) The privilege against self-incrimination. If a person chooses 
to exercise the privilege against self-incrimination under this rule, 
questioning must cease immediately.
      (2) The right to counsel. If a person subjected to interrogation 
under the circumstances described in subdivision (d)(1) of this rule 
chooses to exercise the right to counsel, questioning must cease until 
counsel is present.''.

[[Page 2361]]

    d. Mil. R. Evid. 305(g)(2) is amended to read as follows:
        ``(2) Counsel.
        (A) If the right to counsel in subdivision (d) is applicable and 
the accused or suspect does not decline affirmatively the right to 
counsel, the prosecution must demonstrate by a preponderance of the 
evidence that the individual waived the right to counsel.
        (B) If an accused or suspect interrogated under circumstances 
described in subdivision (d)(1)(A) requests counsel, any subsequent 
waiver of the right to counsel obtained during a custodial interrogation 
concerning the same or different offenses is invalid unless the 
prosecution can demonstrate by a preponderance of the evidence that--
          (i) the accused or suspect initiated the communication leading 
to the waiver; or
          (ii) the accused or suspect has not continuously had his or 
her freedom restricted by confinement, or other means, during the period 
between the request for counsel and the subsequent waiver.
        (C) If an accused or suspect interrogated under circumstances 
described in subdivision (d)(1)(B) requests counsel, any subsequent 
waiver of the right to counsel obtained during an interrogation 
concerning the same offenses is invalid unless the prosecution can 
demonstrate by a preponderance of the evidence that the accused or 
suspect initiated the communication leading to the waiver.''.
    e. Mil. R. Evid. 314(g)(3) is amended to read as follows:
      ``(3) Examination for other persons.
      (A) Protective sweep. When an apprehension takes place at a 
location in which other persons might be present who might endanger 
those conducting the apprehension and others in the area of the 
apprehension, a reasonable examination may be made of the general area 
in which such other persons might be located. A reasonable examination 
under this rule is permitted if the apprehending officials have a 
reasonable suspicion based on specific and articulable facts that the 
area to be examined harbors an individual posing a danger to those in 
the area of the apprehension.
      (B) Search of attack area. Apprehending officials may, incident to 
apprehension, as a precautionary matter and without probable cause or 
reasonable suspicion, look in closets and other spaces immediately 
adjoining the place of apprehension from which an attack could be 
immediately launched.''.
    f. Mil. R. Evid. 404(b) is amended to read as follows:
      ``(b) Other crimes, wrongs, or acts. Evidence of other crimes, 
wrongs, or acts is not admissible to prove the character of a person in 
order to show action in conformity therewith. It may, however, be 
admissible for other purposes, such as proof of motive, opportunity, 
intent, preparation, plan, knowledge, identity, or absence of mistake or 
accident, provided, that upon request by the accused, the prosecution 
shall provide reasonable notice in advance of trial, or during trial if 
the military judge excuses pretrial notice on good cause shown, of the 
general nature of any such evidence it intends to introduce at trial.''.
    Sec. 3. Part IV of the Manual for Courts-Martial, United States, 
1984, is amended as follows:
    a. Paragraph 44e(1) is amended to read as follows:
      ``(1) Voluntary manslaughter. Dishonorable discharge, forfeiture 
of all pay and allowances, and confinement for 15 years.''
    b. Paragraph 44e(2) is amended to read as follows:
      ``(2) Involuntary manslaughter. Dishonorable discharge, forfeiture 
of all pay and allowances, and confinement for 10 years.''.
    c. Paragraph 45e is amended to read as follows:
    ``e. Maximum punishment.
      (1) Rape. Death or such other punishment as a court-martial may 
direct.
      (2) Carnal knowledge with a child who, at the time of the offense, 
has attained the age of 12 years. Dishonorable discharge, forfeiture of 
all pay and allowances, and confinement for 20 years.
      (3) Carnal knowledge with a child under the age of 12 years at the 
time of the offense. Dishonorable discharge, forfeiture of all pay and 
allowances, and confinement for life.''.
    d. Paragraph 51e is amended to read as follows:

[[Page 2362]]

    ``e. Maximum punishment.
      (1) By force and without consent. Dishonorable discharge, 
forfeiture of all pay and allowances, and confinement for life.
      (2) With a child who, at the time of the offense, has attained the 
age of 12 years, but is under the age of 16 years. Dishonorable 
discharge, forfeiture of all pay and allowances, and confinement for 20 
years.
      (3) With a child under the age of 12 years at the time of the 
offense.Dishonorable discharge, forfeiture of all pay and allowances, 
and confinement for life.
      (4) Other cases. Dishonorable discharge, forfeiture of all pay and 
allowances, and confinement for 5 years.''.
    e. Paragraph 85e is amended to read as follows:
      ``e. Maximum punishment. Dishonorable discharge, forfeiture of all 
pay and allowances, and confinement for 3 years.''.
    Sec. 4. These amendments shall take effect on December 9, 1994, 
subject to the following:
    (a) The amendment made to Rule for Courts-Martial 1004(c) (4) shall 
apply only to offenses committed on or after December 9, 1994.
    (b) Nothing contained in these amendments shall be construed to make 
punishable any act done or omitted prior to December 9, 1994, which was 
not punishable when done or omitted.
    (c) The maximum punishment for an offense committed prior to 
December 9, 1994, shall not exceed the applicable maximum in effect at 
the time of the commission of such offense.
    (d) Nothing in these amendments shall be construed to invalidate any 
nonjudicial punishment proceeding, restraint, investigation, referral of 
charges, trial in which arraignment occurred, or other action begun 
prior to December 9, 1994, and any such restraint, investigation, 
referral of charges, trial, or other action may proceed in the same 
manner and with the same effect as if these amendments had not been 
prescribed.
    Sec. 5. The Secretary of Defense, on behalf of the President, shall 
transmit a copy of this order to the Congress of the United States in 
accord with section 836 of title 10, United States Code.
                                            William J. Clinton
The White House,
November 10, 1994.

[Filed with the Office of the Federal Register, 12:16 p.m., November 14, 
1994]

Note: This Executive order and the attached annexes will be published in 
the Federal Register on November 15.