[Weekly Compilation of Presidential Documents Volume 31, Number 20 (Monday, May 22, 1995)]
[Pages 821-830]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 12960--Amendments to the Manual for Courts-Martial, 
United States, 1984

May 12, 1995

    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, 
Executive Order No. 12888, and Executive Order No. 12936, it is hereby 
ordered as follows:
    Section 1. Part I of the Manual for Courts-Martial, United States, 
1984, is amended as follows:
    Preamble, paragraph 4, is amended to read as follows:
      ``4. Structure and application of the Manual for Courts-Martial.
    The Manual for Courts-Martial shall consist of this Preamble, the 
Rules for Courts-Martial, the Military Rules of Evidence, the Punitive 
Articles, and the Nonjudicial Punishment Procedures (Parts I-V). The 
Manual shall be applied consistent with the purpose of military law.
    The Manual shall be identified as ``Manual for Courts-Martial, 
United States (19xx edition).'' Any amendments to the Manual made by 
Executive Order shall be identified as ``19xx Amendments to the Manual 
for Courts-Martial, United States.'' ''
    Sec. 2. Part II of the Manual for Courts-Martial, United States, 
1984, is amended to read as follows:
    a. R.C.M. 810(d) is amended to read as follows:
      ``(d) Sentence limitations.
        (1) In general. Sentences at rehearings, new trials, or other 
trials shall be adjudged within the limitations set forth in R.C.M. 
1003. Except as otherwise provided in subsection (d)(2) of this rule, 
offenses on which a rehearing, new trial, or other trial has been 
ordered shall not be the basis for an approved sentence in excess of or 
more severe than the sentence ultimately approved by the convening or 
higher authority following the previous trial or hearing, unless the 
sentence prescribed for the offense is mandatory. When a rehearing or 
sentencing is combined with trial on new charges, the maximum punishment 
that may be approved by the convening authority shall be the maximum 
punishment under R.C.M. 1003 for the offenses being reheard as limited 
above, plus the total maximum punishment under R.C.M. 1003 for any new 
charges of which the accused has been found guilty. In the case of an 
``other trial'' no sentence limitations apply if the original trial was 
invalid because a summary or special court-martial improperly tried an 
offense involving a mandatory punishment or one otherwise considered 
capital.
        (2) Pretrial agreement. If, after the earlier court-martial, the 
sentence was approved in accordance with a pretrial agreement and at the 
rehearing the accused fails to comply with the pretrial agreement, by 
failing to enter a plea of guilty or otherwise, the approved sentence 
resulting at a rehearing of the affected charges and specifications may 
include any otherwise lawful punishment not in excess of or more serious 
than lawfully adjudged at the earlier court-martial.''
    b. R.C.M. 924(a) is amended to read as follows:
      ``(a) Time for reconsideration. Members may reconsider any finding 
reached by them before such finding is announced in open session.''

[[Page 822]]

    c. R.C.M. 924(c) is amended to read as follows:
      ``(c) Military judge sitting alone. In a trial by military judge 
alone, the military judge may reconsider any finding of guilty at any 
time before announcement of sentence and may reconsider the issue of the 
finding of guilty of the elements in a finding of not guilty only by 
reason of lack of mental responsibility at any time before announcement 
of sentence or authentication of the record of trial in the case of a 
complete acquittal.''
    d. R.C.M. 1003(b)(9) and the accompanying discussion are deleted.
    e. R.C.M. 1003(b)(10), (11), and (12) are redesignated as 
subsections (9), (10), and (11), respectively.
    f. R.C.M. 1009 is amended to read as follows:
      ``(a) Reconsideration. Subject to this rule, a sentence may be 
reconsidered at any time before such sentence is announced in open 
session of the court.
      (b) Exceptions.
        (1) If the sentence announced in open session was less than the 
mandatory minimum prescribed for an offense of which the accused has 
been found guilty, the court that announced the sentence may reconsider 
such sentence after it has been announced, and may increase the sentence 
upon reconsideration in accordance with subsection (e) of this rule.
        (2) If the sentence announced in open session exceeds the 
maximum permissible punishment for the offense or the jurisdictional 
limitation of the court-martial, the sentence may be reconsidered after 
announcement in accordance with subsection (e) of this rule.
      (c) Clarification of sentence. A sentence may be clarified at any 
time prior to action of the convening authority on the case.
        (1) Sentence adjudged by the military judge. When a sentence 
adjudged by the military judge is ambiguous, the military judge shall 
call a session for clarification as soon as practical after the 
ambiguity is discovered.
        (2) Sentence adjudged by members. When a sentence adjudged by 
members is ambiguous, the military judge shall bring the matter to the 
attention of the members if the matter is discovered before the court-
martial is adjourned. If the matter is discovered after adjournment, the 
military judge may call a session for clarification by the members who 
adjudged the sentence as soon as practical after the ambiguity is 
discovered.
      (d) Action by the convening authority. When a sentence adjudged by 
the court-martial is ambiguous, the convening authority may return the 
matter to the court-martial for clarification. When a sentence adjudged 
by the court-martial is apparently illegal, the convening authority may 
return the matter to the court-martial for reconsideration or may 
approve a sentence no more severe than the legal, unambiguous portions 
of the adjudged sentence.
      (e) Reconsideration procedure. Any member of the court-martial may 
propose that a sentence reached by the members be reconsidered.
        (1) Instructions. When a sentence has been reached by members 
and reconsideration has been initiated, the military judge shall 
instruct the members on the procedure for reconsideration.
        (2) Voting. The members shall vote by secret written ballot in 
closed session whether to reconsider a sentence already reached by them.
        (3) Number of votes required.
        (A) With a view to increasing. Subject to subsection (b) of this 
rule, members may reconsider a sentence with a view of increasing it 
only if at least a majority of the members vote for reconsideration.
        (B) With a view to decreasing. Members may reconsider a sentence 
with a view to decreasing it only if:
        (i) In the case of a sentence which includes death, at least one 
member votes to reconsider;
        (ii) In the case of a sentence which includes confinement for 
life or more than 10 years, more than one-fourth of the members vote to 
reconsider; or
        (iii) In the case of any other sentence, more than one-third of 
the members vote to reconsider.
        (4) Successful vote. If a vote to reconsider a sentence 
succeeds, the procedures in R.C.M. 1006 shall apply.''

[[Page 823]]

    g. R.C.M. 1103(b)(3)(L) is deleted.
    h. R.C.M. 1103(b)(3)(M) and (N) are redesignated as subsections (L) 
and (M), respectively.
    i. R.C.M. 1103(c)(2) is amended to read as follows:
      ``(2) Not involving a bad-conduct discharge. If the special court-
martial resulted in findings of guilty but a bad-conduct discharge was 
not adjudged, the requirements of subsections (b)(1), (b)(2)(D), and 
(b)(3) (A)-(F) and (I)-(M) of this rule shall apply.''
    j. R.C.M. 1104(b)(2) is amended to read as follows:
      ``(2) Summary courts-martial. The summary court-martial record of 
trial shall be disposed of as provided in R.C.M. 1305(d). Subsection 
(b)(1)(D) of this rule shall apply if classified information is included 
in the record of trial of a summary court-martial.''
    k. R.C.M. 1106(d)(3) is amended by adding a new subsection (B) as 
follows:
      ``(B) A recommendation for clemency by the sentencing authority, 
made in conjunction with the announced sentence;''
    l. R.C.M. 1106(d)(3) (B)-(E) are redesignated as subsections (C)-
(F), respectively.
    m. R.C.M. 1107(d) is amended by adding a new subparagraph (3) as 
follows:
      ``(3) Postponing service of a sentence to confinement.
        (A) In a case in which a court-martial sentences an accused 
referred to in subsection (B), below, to confinement, the convening 
authority may postpone service of a sentence to confinement by a court-
martial, without the consent of the accused, until after the accused has 
been permanently released to the armed forces by a state or foreign 
country.
        (B) Subsection (A) applies to an accused who, while in custody 
of a state or foreign country, is temporarily returned by that state or 
foreign country to the armed forces for trial by court-martial; and 
after the court-martial, is returned to that state or foreign country 
under the authority of a mutual agreement or treaty, as the case may be.
        (C) As used in subsection (d)(3), the term ``state'' means a 
state of the United States, the District of Columbia, a territory, and a 
possession of the United States.''
    n. R.C.M. 1107(d)(3) is redesignated as R.C.M. 1107(d)(4).
    o. R.C.M. 1107(e)(1)(C)(iii) is amended to read as follows:
      ``(iii) Rehearing on sentence only. A rehearing on sentence only 
shall not be referred to a different kind of court-martial from that 
which made the original findings. If the convening authority determines 
a rehearing on sentence is impracticable, the convening authority may 
approve a sentence of no punishment without conducting a rehearing.''
    p. R.C.M. 1107(f)(2) is amended to read as follows:
      ``(2) Modification of initial action. The convening authority may 
recall and modify any action taken by that convening authority at any 
time before it has been published or before the accused has been 
officially notified. The convening authority also may recall and modify 
any action at any time prior to forwarding the record for review, as 
long as the modification does not result in action less favorable to the 
accused than the earlier action. In addition, in any special court-
martial, the convening authority may recall and correct an illegal, 
erroneous, incomplete, or ambiguous action at any time before completion 
of review under R.C.M. 1112, as long as the correction does not result 
in action less favorable to the accused than the earlier action. When so 
directed by a higher reviewing authority or the Judge Advocate General, 
the convening authority shall modify any incomplete, ambiguous, void, or 
inaccurate action noted in review of the record of trial under Article 
64, 66, 67, or examination of the record of trial under Article 69. The 
convening authority shall personally sign any supplementary or 
corrective action.''
    q. R.C.M. 1108(b) is amended to read as follows:
      ``(b) Who may suspend and remit. The convening authority may, 
after approving the sentence, suspend the execution of all or any part 
of the sentence of a court-martial except for a sentence of death. The 
general court-martial convening authority over the accused at the time 
of the court-martial may, when taking the action under R.C.M. 1112(f), 
suspend or remit any part of the sentence. The Secretary concerned and, 
when designated

[[Page 824]]

by the Secretary concerned, any Under Secretary, Assistant Secretary, 
Judge Advocate General, or commanding officer may suspend or remit any 
part or amount of the unexecuted part of any sentence other than a 
sentence approved by the President. The commander of the accused who has 
the authority to convene a court-martial of the kind which adjudged the 
sentence may suspend or remit any part or amount of the unexecuted part 
of any sentence by summary court-martial or of any sentence by special 
court-martial which does not include a bad-conduct discharge regardless 
of whether the person acting has previously approved the sentence. The 
``unexecuted part of any sentence'' includes that part which has been 
approved and ordered executed but which has not actually been carried 
out.''
    r. R.C.M. 1113(d)(2)(A) is amended by adding a new subparagraph 
(iii) as follows:
      ``(iii) Periods during which the accused is in custody of civilian 
or foreign authorities after the convening authority, pursuant to 
Article 57(e), has postponed the service of a sentence to confinement;''
    s. R.C.M. 1113(d)(2)(A)(iii)-(iv) are redesignated 1113(d)(A)(iv)-
(v), respectively.
    t. R.C.M. 1113(d)(5) is deleted.
    u. R.C.M. 1113(d)(6) is redesignated as subsection (5).
    v. R.C.M. 1201(b)(3)(A) is amended to read as follows:
      ``(A) In general. Notwithstanding R.C.M. 1209, the Judge Advocate 
General may, sua sponte or, except when the accused has waived or 
withdrawn the right to appellate review under R.C.M. 1110, upon 
application of the accused or a person with authority to act for the 
accused, vacate or modify, in whole or in part, the findings, sentence, 
or both of a court-martial that has been finally reviewed, but has not 
been reviewed either by a Court of Military Review or by the Judge 
Advocate General under subsection (b)(1) of this rule, on the ground of 
newly discovered evidence, fraud on the court-martial, lack of 
jurisdiction over the accused or the offense, error prejudicial to the 
substantial rights of the accused, or the appropriateness of the 
sentence.''
    w. R.C.M. 1305(d) is deleted.
    x. R.C.M. 1305(e) is redesignated as subsection (d).
    Sec. 3. Part III of the Manual for Courts-Martial, United States, 
1984, is amended as follows:
    a. M.R.E. 311(g)(2) is amended to read as follows:
      ``(2) False statements. If the defense makes a substantial 
preliminary showing that a government agent included a false statement 
knowingly and intentionally or with reckless disregard for the truth in 
the information presented to the authorizing officer, and if the 
allegedly false statement is necessary to the finding of probable cause, 
the defense, upon request, shall be entitled to a hearing. At the 
hearing, the defense has the burden of establishing by a preponderance 
of the evidence the allegation of knowing and intentional falsity or 
reckless disregard for the truth. If the defense meets its burden, the 
prosecution has the burden of proving by a preponderance of the 
evidence, with the false information set aside, that the remaining 
information presented to the authorizing officer is sufficient to 
establish probable cause. If the prosecution does not meet its burden, 
the objection or motion shall be granted unless the search is otherwise 
lawful under these rules.''
    b. M.R.E. 506(e) and (f) are amended to read as follows:
      ``(e) Pretrial session. At any time after referral of charges and 
prior to arraignment, any party may move for a session under Article 
39(a) to consider matters relating to government information that may 
arise in connection with the trial. Following such motion, or sua 
sponte, the military judge promptly shall hold a pretrial session under 
Article 39(a) to establish the timing of requests for discovery, the 
provision of notice under subsection (h), and the initiation of the 
procedure under subsection (i). In addition, the military judge may 
consider any other matters that relate to government information or that 
may promote a fair and expeditious trial.
      (f) Action after motion for disclosure of information. After 
referral of charges, if the defense moves for disclosure of government 
information for which a claim of privilege has been made under this 
rule, the matter shall

[[Page 825]]

be reported to the convening authority. The convening authority may:
        (1) institute action to obtain the information for use by the 
military judge in making a determination under subdivision (i);
        (2) dismiss the charges;
        (3) dismiss the charges or specifications or both to which the 
information relates; or
        (4) take other action as may be required in the interests of 
justice.
    If, after a reasonable period of time, the information is not 
provided to the military judge, the military judge shall dismiss the 
charges or specifications or both to which the information relates.''
    c. M.R.E. 506(h) is amended to read as follows:
      ``(h) Prohibition against disclosure. The accused may not disclose 
any information known or believed to be subject to a claim of privilege 
under this rule unless the military judge authorizes such disclosure.''
    d. M.R.E. 506(i) is amended to read as follows:
      ``(i) In camera proceedings.
        (1) Definition. For purposes of this subsection, an ``in camera 
proceeding'' is a session under Article 39(a) from which the public is 
excluded.
        (2) Motion for in camera proceeding. Within the time specified 
by the military judge for the filing of a motion under this rule, the 
Government may move for an in camera proceeding concerning the use at 
any proceeding of any government information that may be subject to a 
claim of privilege. Thereafter, either prior to or during trial, the 
military judge for good cause shown or otherwise upon a claim of 
privilege may grant the Government leave to move for an in camera 
proceeding concerning the use of additional government information.
        (3) Demonstration of public interest nature of the information. 
In order to obtain an in camera proceeding under this rule, the 
Government shall demonstrate, through the submission of affidavits and 
information for examination only by the military judge, that disclosure 
of the information reasonably could be expected to cause identifiable 
damage to the public interest.
        (4) In camera proceeding.
        (A) Finding of identifiable damage. Upon finding that the 
disclosure of some or all of the information submitted by the Government 
under subsection (i)(3) reasonably could be expected to cause 
identifiable damage to the public interest, the military judge shall 
conduct an in camera proceeding.
        (B) Disclosure of the information to the defense. Subject to 
subsection (F), below, the Government shall disclose government 
information for which a claim of privilege has been made to the accused, 
for the limited purpose of litigating, in camera, the admissibility of 
the information at trial. The military judge shall enter an appropriate 
protective order to the accused and all other appropriate trial 
participants concerning the disclosure of the information according to 
subsection (g), above. The accused shall not disclose any information 
provided under this subsection unless, and until, such information has 
been admitted into evidence by the military judge. In the in camera 
proceeding, both parties shall have the opportunity to brief and argue 
the admissibility of the government information at trial.
        (C) Standard. Government information is subject to disclosure at 
the court-martial proceeding under this subsection if the party making 
the request demonstrates a specific need for information containing 
evidence that is relevant to the guilt or innocence or to punishment of 
the accused, and is otherwise admissible in the court-martial 
proceeding.
        (D) Ruling. No information may be disclosed at the court-martial 
proceeding or otherwise unless the military judge makes a written 
determination that the information is subject to disclosure under the 
standard set forth in subsection (C), above. The military judge will 
specify in writing any information that he or she determines is subject 
to disclosure. The record of the in camera proceeding shall be sealed 
and attached to the record of trial as an appellate exhibit. The accused 
may seek reconsideration of the determination prior to or during trial.
        (E) Alternatives to full disclosure. If the military judge makes 
a determination under this subsection that the information is subject to 
disclosure, or if the Government elects not to contest the relevance, 
necessity,

[[Page 826]]

and admissibility of the government information, the Government may 
proffer a statement admitting for purposes of the court-martial any 
relevant facts such information would tend to prove or may submit a 
portion or summary to be used in lieu of the information. The military 
judge shall order that such statement, portion, summary, or some other 
form of information which the military judge finds to be consistent with 
the interests of justice, be used by the accused in place of the 
government information, unless the military judge finds that use of the 
government information itself is necessary to afford the accused a fair 
trial.
        (F) Sanctions. Government information may not be disclosed over 
the Government's objection. If the Government continues to object to 
disclosure of the information following rulings by the military judge, 
the military judge shall issue any order that the interests of justice 
require. Such an order may include:
        (i) striking or precluding all or part of the testimony of a 
witness;
        (ii) declaring a mistrial;
        (iii) finding against the Government on any issue as to which 
the evidence is relevant and necessary to the defense;
        (iv) dismissing the charges, with or without prejudice; or
        (v) dismissing the charges or specifications or both to which 
the information relates.''
    e. A new M.R.E. 506(j) is added as follows:
      ``(j) Appeals of orders and rulings. In a court-martial in which a 
punitive discharge may be adjudged, the Government may appeal an order 
or ruling of the military judge that terminates the proceedings with 
respect to a charge or specification, directs the disclosure of 
government information, or imposes sanctions for nondisclosure of 
government information. The Government also may appeal an order or 
ruling in which the military judge refuses to issue a protective order 
sought by the United States to prevent the disclosure of government 
information, or to enforce such an order previously issued by 
appropriate authority. The Government may not appeal an order or ruling 
that is, or amounts to, a finding of not guilty with respect to the 
charge or specification.''
    f. M.R.E. 506(j) and (k) are redesignated as (k) and (l), 
respectively.
    Sec. 4. Part IV of the Manual for Courts-Martial, United States, 
1984, is amended to read as follows:
    a. Paragraph 4.c. is amended by adding a new subparagraph (4) as 
follows:
      ``(4) Voluntary abandonment. It is a defense to an attempt offense 
that the person voluntarily and completely abandoned the intended crime, 
solely because of the person's own sense that it was wrong, prior to the 
completion of the crime. The voluntary abandonment defense is not 
allowed if the abandonment results, in whole or in part, from other 
reasons, such as, the person feared detection or apprehension, decided 
to await a better opportunity for success, was unable to complete the 
crime, or encountered unanticipated difficulties or unexpected 
resistance. A person who is entitled to the defense of voluntary 
abandonment may nonetheless be guilty of a lesser included, completed 
offense. For example, a person who voluntarily abandoned an attempted 
armed robbery may nonetheless be guilty of assault with a dangerous 
weapon.''
    b. Paragraph 4.c.(4), (5), and (6) are redesignated as subparagraphs 
(5), (6) and (7), respectively.
    c. Paragraph 30a.c(1), is amended to read as follows:
      ``(1) Intent. ``Intent or reason to believe'' that the information 
``is to be used to the injury of the United States or to the advantage 
of a foreign nation'' means that the accused acted in bad faith and 
[delete ``or otherwise''] without lawful authority with respect to 
information that is not lawfully accessible to the public.''
    d. Paragraph 35 is amended to read as follows:
      ``35. Article 111--Drunken or reckless operation of a vehicle, 
aircraft, or vessel
        a. Text.
        ``Any person subject to this chapter who--
        (1) operates or physically controls any vehicle, aircraft, or 
vessel in a reckless or wanton manner or while impaired by a substance 
described in section 912a(b) of this title (Article 112a(b)), or

[[Page 827]]

        (2) operates or is in actual physical control of any vehicle, 
aircraft, or vessel while drunk or when the alcohol concentration in the 
person's blood or breath is 0.10 grams of alcohol per 100 milliliters of 
blood or 0.10 grams of alcohol per 210 liters of breath, as shown by 
chemical analysis, shall be punished as a court-martial may direct.''
        b. Elements.
        (1) That the accused was operating or in physical control of a 
vehicle, aircraft, or vessel; and
        (2) That while operating or in physical control of a vehicle, 
aircraft, or vessel, the accused:
        (a) did so in a wanton or reckless manner, or
        (b) was drunk or impaired, or
        (c) the alcohol concentration in the accused's blood or breath 
was 0.10 grams of alcohol per 100 milliliters of blood or 0.10 grams of 
alcohol per 210 liters of breath, or greater, as shown by chemical 
analysis.
        [Note: If injury resulted add the following element]
        (3) That the accused thereby caused the vehicle, aircraft, or 
vessel to injure a person.
        c. Explanation.
        (1) Vehicle. See 1 U.S.C. Sec. 4.
        (2) Vessel. See 1 U.S.C. Sec. 3.
        (3) Aircraft. Any contrivance used or designed for 
transportation in the air.
        (4) Operates. Operating a vehicle, aircraft, or vessel includes 
not only driving or guiding a vehicle, aircraft, or vessel while it is 
in motion, either in person or through the agency of another, but also 
setting of its motive power in action or the manipulation of its 
controls so as to cause the particular vehicle, aircraft, or vessel to 
move.
        (5) Physical control and actual physical control. These terms as 
used in the statute are synonymous. They describe the present capability 
and power to dominate, direct, or regulate the vehicle, vessel, or 
aircraft, either in person or through the agency of another, regardless 
of whether such vehicle, aircraft, or vessel is operated. For example, 
the intoxicated person seated behind the steering wheel of a vehicle 
with the keys of the vehicle in or near the ignition but with the engine 
not turned on could be deemed in actual physical control of that 
vehicle. However, the person asleep in the back seat with the keys in 
his or her pocket would not be deemed in actual physical control. 
Physical control necessarily encompasses operation.
        (6) Drunk or impaired. ``Drunk'' and ``impaired'' mean any 
intoxication which is sufficient to impair the rational and full 
exercise of the mental or physical faculties. The term ``drunk'' is used 
in relation to intoxication by alcohol. The term ``impaired'' is used in 
relation to intoxication by a substance described in Article 112(a), 
Uniform Code of Military Justice.
        (7) Reckless. The operation or physical control of a vehicle, 
vessel, or aircraft is ``reckless'' when it exhibits a culpable 
disregard of foreseeable consequences to others from the act or omission 
involved. Recklessness is not determined solely by reason of the 
happening of an injury, or the invasion of the rights of another, nor by 
proof alone of excessive speed or erratic operation, but all these 
factors may be admissible and relevant as bearing upon the ultimate 
question: whether, under all the circumstances, the accused's manner of 
operation or physical control of the vehicle, vessel, or aircraft was of 
that heedless nature which made it actually or imminently dangerous to 
the occupants, or to the rights or safety of others. It is operating or 
physically controlling a vehicle, vessel, or aircraft with such a high 
degree of negligence that if death were caused, the accused would have 
committed involuntary manslaughter, at least. The nature of the 
conditions in which the vehicle, vessel, or aircraft is operated or 
controlled, the time of day or night, the proximity and number of other 
vehicles, vessels, or aircraft, and the condition of the vehicle, 
vessel, or aircraft, are often matters of importance in the proof of an 
offense charged under this article and, where they are of importance, 
may properly be alleged.
        (8) Wanton. ``Wanton'' includes ``reckless'', but in describing 
the operation or physical control of a vehicle, vessel, or aircraft, 
``wanton'' may, in a proper case, connote willfulness, or a disregard of 
probable consequences, and thus describe a more aggravated offense.

[[Page 828]]

        (9) Causation. The accused's drunken or reckless driving must be 
a proximate cause of injury for the accused to be guilty of drunken or 
reckless driving resulting in personal injury. To be proximate, the 
accused's actions need not be the sole cause of the injury, nor must 
they be the immediate cause of the injury; that is, the latest in time 
and space preceding the injury. A contributing cause is deemed proximate 
only if it plays a material role in the victim's injury.
        (10) Separate offenses. While the same course of conduct may 
constitute violations of both subsections (1) and (2) of the Article, 
(e.g., both drunken and reckless operation or physical control), this 
article proscribes the conduct described in both subsections as separate 
offenses, which may be charged separately. However, as recklessness is a 
relative matter, evidence of all the surrounding circumstances that made 
the operation dangerous, whether alleged or not, may be admissible. 
Thus, on a charge of reckless driving, for example, evidence of 
drunkenness might be admissible as establishing one aspect of the 
recklessness, and evidence that the vehicle exceeded a safe speed, at a 
relevant prior point and time, might be admissible as corroborating 
other evidence of the specific recklessness charged. Similarly, on a 
charge of drunken driving, relevant evidence of recklessness might have 
probative value as corroborating other proof of drunkenness.
        d. Lesser included offense.
        (1) Reckless or wanton or impaired operation or physical control 
of a vessel. Article 110--improper hazarding of a vessel.
        (2) Drunken operation of a vehicle, vessel, or aircraft while 
drunk or with a blood or breath alcohol concentration in violation of 
the described per se standard.
        (a) Article 110 - improper hazarding of a vessel
        (b) Article 112 - drunk on duty
        (c) Article 134 - drunk on station
          e. Maximum punishment.
        (1) Resulting in personal injury. Dishonorable discharge, 
forfeiture of all pay and allowances, and confinement for 18 months.
        (2) No personal injury involved. Bad-conduct discharge, 
forfeiture of all pay and allowances, and confinement for 6 months.
        f. Sample specification.
              In that __________ (personal jurisdiction data), did (at/
onboard--location)(subject-matter jurisdiction data, if required), on or 
about __________ 19____, (in the motor pool area)(near the Officer's 
Club)(at the intersection of __________ and __________)(while in the 
Gulf of Mexico) (while in flight over North America) physically control 
[a vehicle, to wit: (a truck)(a passenger car) (__________)] [an 
aircraft, to wit: (an AH-64 helicopter)(an F-14A fighter)(a KC-135 
tanker)(__________)] [a vessel, to wit: (the aircraft carrier USS 
__________)(the Coast Guard Cutter __________) (__________)], [while 
drunk] [while impaired by __________] [while the alcohol concentration 
in his (blood was 0.10 grams of alcohol per 100 milliliters of blood or 
greater)(breath was 0.10 grams of alcohol per 210 liters of breath or 
greater) as shown by chemical analysis] [in a (reckless)(wanton) manner 
by (attempting to pass another vehicle on a sharp curve)(by ordering 
that the aircraft be flown below the authorized altitude)] [and did 
thereby cause said (vehicle)(aircraft)(vessel) to (strike and) (injure 
__________)].''
    e. Paragraph 43.a.(3) is amended to read as follows:
      ``(3) is engaged in an act that is inherently dangerous to another 
and evinces a wanton disregard of human life; or''
    f. Paragraph 43.b.(3)(c) is amended to read as follows:
      ``(c) That this act was inherently dangerous to another and showed 
a wanton disregard for human life;''
    g. Paragraph 43.c.(4)(a) is amended to read as follows:
      ``(a) Wanton disregard for human life. Intentionally engaging in 
an act inherently dangerous to another--although without an intent to 
cause the death of or great bodily harm to any particular person, or 
even with a wish that death will not be caused--may also constitute 
murder if the act shows wanton disregard of human life. Such disregard 
is characterized by heedlessness of the probable consequences of the act 
or omission, or indifference to the likelihood of death or great bodily 
harm. Examples include throwing a live grenade toward another or others

[[Page 829]]

in jest or flying an aircraft very low over one or more persons to cause 
alarm.''
    h. Paragraph 45.a.(a) is amended to read as follows:
      ``(a) Any person subject to this chapter who commits an act of 
sexual intercourse by force and without consent, is guilty of rape and 
shall be punished by death or such other punishment as a court-martial 
may direct.''
    i. Paragraph 45.b.(1) is amended to read as follows:
      ``(a) That the accused committed an act of sexual intercourse; and
      (b) That the act of sexual intercourse was done by force and 
without consent.''
    j. Paragraph 45.c.(1)(a) and (b) are amended as follows:
      ``(a) Nature of offense. Rape is sexual intercourse by a person, 
executed by force and without consent of the victim. It may be committed 
on a victim of any age. Any penetration, however slight, is sufficient 
to complete the offense.
      (b) Force and lack of consent. Force and lack of consent are 
necessary to the offense. Thus, if the victim consents to the act, it is 
not rape. The lack of consent required, however, is more than mere lack 
of acquiescence. If a victim in possession of his or her mental 
faculties fails to make lack of consent reasonably manifest by taking 
such measures of resistance as are called for by the circumstances, the 
inference may be drawn that the victim did consent. Consent, however, 
may not be inferred if resistance would have been futile, where 
resistance is overcome by threats of death or great bodily harm, or 
where the victim is unable to resist because of the lack of mental or 
physical faculties. In such a case there is no consent and the force 
involved in penetration will suffice. All the surrounding circumstances 
are to be considered in determining whether a victim gave consent, or 
whether he or she failed or ceased to resist only because of a 
reasonable fear of death or grievous bodily harm. If there is actual 
consent, although obtained by fraud, the act is not rape, but if to the 
accused's knowledge the victim is of unsound mind or unconscious to an 
extent rendering him or her incapable of giving consent, the act is 
rape. Likewise, the acquiescence of a child of such tender years that he 
or she is incapable of understanding the nature of the act is not 
consent.''
    k. Paragraph 89.c. is amended to read as follows:
      ``(c) Explanation. ``Indecent'' language is that which is grossly 
offensive to modesty, decency, or propriety, or shocks the moral sense, 
because of its vulgar, filthy, or disgusting nature, or its tendency to 
incite lustful thought. Language is indecent if it tends reasonably to 
corrupt morals or incite libidinous thoughts. The language must violate 
community standards.  See paragraph 87 if the communication was made in 
the physical presence of a child.''
    l. The following new paragraph is added after paragraph 103:
      ``103a. Article 134 (Self-injury without intent to avoid service)
        a. Text. See paragraph 60.
        b. Elements.
        (1) That the accused intentionally inflicted injury upon himself 
or herself;
        (2) That, under the circumstances, the conduct of the accused 
was to the prejudice of good order and discipline in the armed forces or 
was of a nature to bring discredit upon the armed forces.
        [Note: If the offense was committed in time of war or in a 
hostile fire pay zone, add the following element]
        (3) That the offense was committed (in time of war) (in a 
hostile fire pay zone).
        c. Explanation.
        (1) Nature of offense. This offense differs from malingering 
(see paragraph 40) in that for this offense, the accused need not have 
harbored a design to avoid performance of any work, duty, or service 
which may properly or normally be expected of one in the military 
service. This offense is characterized by intentional self-injury under 
such circumstances as prejudice good order and discipline or discredit 
the armed forces. It is not required that the accused be unable to 
perform duties, or that the accused actually be absent from his or her 
place of duty as a result of the injury. For example, the accused may 
inflict the injury while on leave or pass. The circumstances and extent 
of injury, however, are relevant to a determination that the accused's 
conduct was preju- 

[[Page 830]]

dicial to good order and discipline, or service-discrediting.
        (2) How injury inflicted. The injury may be inflicted by 
nonviolent as well as by violent means and may be accomplished by any 
act or omission that produces, prolongs, or aggravates a sickness or 
disability. Thus, voluntary starvation that results in a debility is a 
self-inflicted injury. Similarly, the injury may be inflicted by another 
at the accused's request.
        d. Lesser included offense. Article 80--attempts
        e. Maximum punishment.
        (1) Intentional self-inflicted injury. Dishonorable discharge, 
forfeiture of all pay and allowances, and confinement for 2 years.
        (2) Intentional self-inflicted injury in time of war or in a 
hostile fire pay zone. Dishonorable discharge, forfeiture of all pay and 
allowances, and confinement for 5 years.
        f. Sample specification.
    In that __________ (personal jurisdiction data), did, (at/on board--
location) (in a hostile fire pay zone) on or about __________19____, (a 
time of war,) intentionally injure himself/herself by __________ (nature 
and circumstances of injury).''
    Sec. 5. These amendments shall take effect on June 10, 1995, subject 
to the following:
    a. Nothing in these amendments shall be construed to make punishable 
any act done or omitted prior to June 10, 1995.
    b. The maximum punishment for an offense committed prior to June 10, 
1995, shall not exceed the applicable maximum in effect at the time of 
the commission of such offense.
    c. 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 June 10, 1995, and any such nonjudicial punishment, 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.
                                            William J. Clinton
The White House,
May 12, 1995.

[Filed with the Office of the Federal Register, 2:56 p.m., May 15, 1995]

Note: This Executive order was published in the Federal Register on May 
17. This item was not received in time for publication in the 
appropriate issue.