[Weekly Compilation of Presidential Documents Volume 38, Number 16 (Monday, April 22, 2002)]
[Pages 619-625]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 13262--Amendments to the Manual for Courts-Martial, 
United States

April 11, 2002

    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), and in order to prescribe amendments to the Manual for Courts-
Martial, United States, prescribed by Executive Order 12473, as amended, 
it is hereby ordered as follows:
    Section 1. Thirty days after the date of this Executive Order, the 
provisions of Federal Rule of Evidence 415, adopted September 13, 1994, 
will no longer be applicable to the Military Rules of Evidence. This 
evidentiary rule became applicable to courts-martial on January 6, 1996, 
pursuant to Military Rule of Evidence 1102.
    Sec. 2. The last subparagraph of paragraph 4, of Part I, of the 
Manual for Courts-Martial, United States, is amended as follows:
    ``The Manual shall be identified as ``Manual for Courts-Martial, 
United States (2002 edition).'' Any amendments to the Manual made by 
Executive Order shall be identified as ``2002'' Amendments to the Manual 
for Courts-Martial, United States''; ``2002'' being the year the 
Executive Order was signed. If two or more Executive Orders amending the 
Manual are signed during the same year, then the second and any 
subsequent Executive Orders will be identified by placing a small case 
letter of the alphabet after the last digit of the year beginning with 
``a'' for the second Executive Order and continuing in alphabetic order 
for subsequent Executive Orders.''.
    Sec. 3. Part II of the Manual for Courts-Martial, United States, is 
amended as follows:
    a. R.C.M. 201(f)(2)(B) is amended to read as follows:
    ``(i) Upon a finding of guilty, special courts-martial may adjudge, 
under limitations prescribed by this Manual, any punishment authorized 
under R.C.M. 1003 except death, dishonorable discharge, dismissal, 
confinement for more than 1 year, hard labor without confinement for 
more than 3 months, forfeiture of pay exceeding two-thirds pay per 
month, or any forfeiture of pay for more than 1 year.
    ``(ii) A bad-conduct discharge, confinement for more than six 
months, or forfeiture of pay for more than six months, may not be 
adjudged by a special court-martial unless:
    ``(a) Counsel qualified under Article 27(b) is detailed to represent 
the accused; and
    ``(b) A military judge is detailed to the trial, except in a case in 
which a military judge could not be detailed because of physical 
conditions or military exigencies. Physical conditions or military 
exigencies, as the terms are here used, may exist under rare 
circumstances, such as on an isolated ship on the high seas or in a unit 
in an inaccessible area, provided compelling reasons exist why the trial 
must be held at that time and at that place. Mere inconvenience does not 
constitute a physical condition or military exigency and does not excuse 
a failure to detail a military judge. If a military judge cannot be 
detailed because of physical conditions or military exigencies, a bad-
conduct discharge, confinement for more than six months, or forfeiture 
of pay for more than six months, may be adjudged provided the other 
conditions have been met. In that event, however, the convening 
authority shall, prior to trial, make a written statement explaining why 
a military judge could not be obtained. This statement shall be appended 
to the record of trial and shall set forth in detail the reasons why a 
military judge could not be detailed, and why the trial had to be held 
at that time and place.''
    b. R.C.M. 701(b)(4) is amended to read as follows:

[[Page 620]]

    ``(4) Reports of examination and tests. If the defense requests 
disclosure under subsection (a)(2)(B) of this rule, upon compliance with 
such request by the Government, the defense, on request of trial 
counsel, shall (except as provided in R.C.M. 706, Mil. R. Evid. 302, and 
Mil. R. Evid. 513) permit the trial counsel to inspect any results or 
reports of physical or mental examinations and of scientific tests or 
experiments made in connection with the particular case, or copies 
thereof, that are within the possession, custody, or control of the 
defense that the defense intends to introduce as evidence in the defense 
case-in-chief at trial or that were prepared by a witness whom the 
defense intends to call at trial when the results or reports relate to 
that witness' testimony.''
    c. R.C.M. 806 is amended by adding at the end the following new 
subsection (d):
    ``(d) Protective orders. The military judge may, upon request of any 
party or sua sponte, issue an appropriate protective order, in writing, 
to prevent parties and witnesses from making extrajudicial statements 
that present a substantial likelihood of material prejudice to a fair 
trial by impartial members. For purposes of this subsection, ``military 
judge'' does not include the president of a special court-martial 
without a military judge.''.
    d. R.C.M. 1001(b)(3)(A) is amended to read as follows:
    ``(A) In general. The trial counsel may introduce evidence of 
military or civilian convictions of the accused. For purposes of this 
rule, there is a ``conviction'' in a court-martial case when a sentence 
has been adjudged. In a civilian case, a ``conviction'' includes any 
disposition following an initial judicial determination or assumption of 
guilt, such as when guilt has been established by guilty plea, trial, or 
plea of nolo contendere, regardless of the subsequent disposition, 
sentencing procedure, or final judgment. However, a ``civilian 
conviction'' does not include a diversion from the judicial process 
without a finding or admission of guilt; expunged convictions; juvenile 
adjudications; minor traffic violations; foreign convictions; tribal 
court convictions; or convictions reversed, vacated, invalidated or 
pardoned because of errors of law or because of subsequently discovered 
evidence exonerating the accused.''.
    e. R.C.M. 1003(b)(3) is amended to read as follows:
    ``(3) Fine. Any court-martial may adjudge a fine in lieu of or in 
addition to forfeitures. Special and summary courts-martial may not 
adjudge any fine or combination of fine and forfeitures in excess of the 
total amount of forfeitures that may be adjudged in that case. In order 
to enforce collection, a fine may be accompanied by a provision in the 
sentence that, in the event the fine is not paid, the person fined 
shall, in addition to any period of confinement adjudged, be further 
confined until a fixed period considered an equivalent punishment to the 
fine has expired. The total period of confinement so adjudged shall not 
exceed the jurisdictional limitations of the court-martial;''
    f. R.C.M. 1003(b)(7) is amended to read as follows:
    ``(7) Confinement. The place of confinement shall not be designated 
by the court-martial. When confinement for life is authorized, it may be 
with or without eligibility for parole. A court-martial shall not 
adjudge a sentence to solitary confinement or to confinement without 
hard labor;''.
    g. R.C.M. 1004(e) is amended to read as follows:
    ``(e) Other penalties. Except for a violation of Article 106, when 
death is an authorized punishment for an offense, all other punishments 
authorized under R.C.M. 1003 are also authorized for that offense, 
including confinement for life, with or without eligibility for parole, 
and may be adjudged in lieu of the death penalty, subject to limitations 
specifically prescribed in this Manual. A sentence of death includes a 
dishonorable discharge or dismissal as appropriate. Confinement is a 
necessary incident of a sentence of death, but not a part of it.''
    h. R.C.M. 1006(d)(4)(B) is amended to read as follows:
    ``(B) Confinement for life, with or without eligibility for parole, 
or more than 10 years. A sentence that includes confinement for life, 
with or without eligibility for parole, or more than 10 years may be 
adjudged only if at least three-fourths of the members present vote for 
that sentence.''
    i. R.C.M. 1009(e)(3)(B)(ii) is amended to read as follows:

[[Page 621]]

    ``(ii) In the case of a sentence which includes confinement for 
life, with or without eligibility for parole, or more than 10 years, 
more than one-fourth of the members vote to reconsider; or''.
    j. R.C.M. 1103(b)(2)(B)(i) is amended to read as follows:
    ``(i) Any part of the sentence adjudged exceeds six months 
confinement, forfeiture of pay greater than two-thirds pay per month, or 
any forfeiture of pay for more than six months or other punishments that 
may be adjudged by a special court-martial; or''.
    k. R.C.M. 1103(c) is amended to read as follows:
    ``(c) Special courts-martial.
    ``(1) Involving a bad-conduct discharge, confinement for more than 
six months, or forfeiture of pay for more than six months. The 
requirements of subsections (b)(1), (b)(2)(A), (b)(2)(B), (b)(2)(D), and 
(b)(3) of this rule shall apply in a special court-martial in which a 
bad-conduct discharge, confinement for more than six months, or 
forfeiture of pay for more than six months, has been adjudged.
    ``(2) All other special courts-martial. If the special court-martial 
resulted in findings of guilty but a bad-conduct discharge, confinement 
for more than six months, or forfeiture of pay for more than six months, 
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.''.
    l. R.C.M. 1103(f)(1) is amended to read as follows:
    ``(1) Approve only so much of the sentence that could be adjudged by 
a special court-martial, except that a bad-conduct discharge, 
confinement for more than six months, or forfeiture of two-thirds pay 
per month for more than six months, may not be approved; or''.
    m. R.C.M. 1104(a)(2)(A) is amended to read as follows:
    ``(A) Authentication by the military judge. In special courts-
martial in which a bad-conduct discharge, confinement for more than six 
months, or forfeiture of pay for more than six months, has been adjudged 
and in general courts-martial, except as provided in subsection 
(a)(2)(B) of this rule, the military judge present at the end of the 
proceedings shall authenticate the record of trial, or that portion over 
which the military judge presided. If more than one military judge 
presided over the proceedings, each military judge shall authenticate 
the record of the proceedings over which that military judge presided, 
except as provided in subsection (a)(2)(B) of this rule. The record of 
trial of special courts-martial in which a bad-conduct discharge, 
confinement for more than six months, or forfeiture of pay for more than 
six months, was not adjudged shall be authenticated in accordance with 
regulations of the Secretary concerned.''
    n. R.C.M. 1104(e) is amended to read as follows:
    ``(e) Forwarding. After every court-martial, including a rehearing 
and new and other trials, the authenticated record shall be forwarded to 
the convening authority for initial review and action, provided that in 
case of a special court-martial in which a bad-conduct discharge or 
confinement for one year was adjudged or a general court-martial, the 
convening authority shall refer the record to the staff judge advocate 
or legal officer for recommendation under R.C.M. 1106 before the 
convening authority takes action.''.
    o. R.C.M. 1106(a) is amended to read as follows:
    ``(a) In general. Before the convening authority takes action under 
R.C.M. 1107 on a record of trial by general court-martial or a record of 
trial by special court-martial that includes a sentence to a bad-conduct 
discharge or confinement for one year, that convening authority's staff 
judge advocate or legal officer shall, except as provided in subsection 
(c) of this rule, forward to the convening authority a recommendation 
under this rule.''.
    p. R.C.M. 1107(d)(4) is amended to read as follows:
    ``(4) Limitations on sentence based on record of trial. If the 
record of trial does not meet the requirements of R.C.M. 1103(b)(2)(B) 
or (c)(1), the convening authority may not approve a sentence in excess 
of that which may be adjudged by a special court-martial, or one that 
includes a bad-conduct discharge, confinement for more than six months, 
forfeiture of pay exceeding two-

[[Page 622]]

thirds pay per month, or any forfeiture of pay for more than six 
months.''.
    q. R.C.M. 1107(d) is amended by adding at the end the following new 
paragraph:
    ``(5) Limitations on sentence of a special court-martial where a 
fine has been adjudged. A convening authority may not approve in its 
entirety a sentence adjudged at a special court-martial when, if 
approved, the cumulative impact of the fine and forfeitures, whether 
adjudged or by operation of Article 58b, would exceed the jurisdictional 
maximum dollar amount of forfeitures that may be adjudged at that court-
martial.''.
    r. R.C.M. 1109(e) and (e)(1) are amended to read as follows:
    ``(e) Vacation of a suspended special court-martial sentence wherein 
a bad-conduct discharge or confinement for one year was not adjudged.
    ``(1) In general. Before vacating the suspension of a special court-
martial punishment that does not include a bad-conduct discharge or 
confinement for one year, the special court-martial convening authority 
for the command in which the probationer is serving or assigned shall 
cause a hearing to be held on the alleged violation(s) of the conditions 
of suspension.''.
    s. R.C.M. 1109(f) and (f)(1) are amended to read as follows:
    ``(f) Vacation of a suspended special court-martial sentence that 
includes a bad-conduct discharge or confinement for one year.
    ``(1) The procedure for the vacation of a suspended approved bad-
conduct discharge or of any suspended portion of an approved sentence to 
confinement for one year, shall follow that set forth in subsection (d) 
of this rule.''.
    t. R.C.M. 1110(a) is amended to read as follows:
    ``(a) In general. After any general court-martial, except one in 
which the approved sentence includes death, and after any special court-
martial in which the approved sentence includes a bad-conduct discharge 
or confinement for one year, the accused may waive or withdraw appellate 
review.''.
    u. R.C.M. 1111(b) is amended to read as follows:
    ``(1) Cases including an approved bad-conduct discharge or 
confinement for one year. If the approved sentence of a special court-
martial includes a bad-conduct discharge or confinement for one year, 
the record shall be disposed of as provided in subsection (a) of this 
rule.
    ``(2) Other cases. The record of trial by a special court-martial in 
which the approved sentence does not include a bad-conduct discharge or 
confinement for one year shall be forwarded directly to a judge advocate 
for review under R.C.M. 1112. Four copies of the order promulgating the 
result of trial shall be forwarded with the record of trial, unless 
otherwise prescribed by regulations of the Secretary concerned.''.
    v. R.C.M. 1112(a)(2) is amended to read as follows:
    ``(2) Each special court-martial in which the accused has waived or 
withdrawn appellate review under R.C.M. 1110 or in which the approved 
sentence does not include a bad-conduct discharge or confinement for one 
year; and''.
    w. R.C.M 1305(d)(2) is amended to read as follows:
    ``(2) Forwarding to the convening authority. The original and one 
copy of the record of trial shall be forwarded to the convening 
authority after compliance with subsection (d)(1) of this rule.''.
    Sec. 4. Part III of the Manual for Courts-Martial, United States, is 
amended in Mil. R. Evid. 615 by striking the period at the end of the 
rule and adding ``, or (4) a person authorized by statute to be present 
at courts-martial, or (5) any victim of an offense from the trial of an 
accused for that offense because such victim may testify or present any 
information in relation to the sentence or that offense during the 
presentencing proceedings.''.
    Sec. 5. Part IV of the Manual for Courts-Martial, United States, is 
amended as follows:
    a. All ``Sample specification(s)'' subparagraphs in the Punitive 
Articles (Part IV, M.C.M.) are amended by striking ``______________ 
19____'' and inserting ``______________ 20____.''.
    b. Paragraph 27e(1)(a) is amended to read as follows:
    ``(a) of a value of $500.00 or less. Bad-conduct discharge, 
forfeiture of all pay and allowances, and confinement for 6 months.''.

[[Page 623]]

    c. Paragraph 27e(1)(b) is amended to read as follows:
    ``(b) of a value of more than $500.00 or any firearm or explosive. 
Dishonorable discharge, forfeiture of all pay and allowances, and 
confinement for 5 years.''.
    d. Paragraph 27f(3) is amended to read as follows:
    ``(3) Dealing in captured or abandoned property. In that __________ 
(personal jurisdiction data), did, (at/on board - location), on or about 
__________ 20 __________, (buy) (sell) (trade) (deal in) (dispose of) 
(______________) certain (captured) (abandoned) property, to wit: 
__________, (a firearm) (an explosive), of a value of (about) 
$__________, thereby (receiving) (expecting) a (profit) (benefit) 
(advantage) to (himself/herself) (__________, his/her accomplice) 
(__________, his/her brother) (______________).''.
    e. Strike paragraph 31c(6).
    f. Paragraph 43e(1), is amended to read as follows:
    ``(1) Article 118(1) or (4)--death. Mandatory minimum--imprisonment 
for life with eligibility for parole.''.
    g. Paragraph 45e(3) is amended to read as follows:
    ``(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 without eligibility for parole.''.
    h. Paragraph 46c(1)(h) is amended by adding at the end the following 
new clause:
    ``(vi) Credit, Debit, and Electronic Transactions. Wrongfully 
engaging in a credit, debit, or electronic transaction to obtain goods 
or money is an obtaining-type larceny by false pretense. Such use to 
obtain goods is usually a larceny of those goods from the merchant 
offering them. Such use to obtain money or a negotiable instrument 
(e.g., withdrawing cash from an automated teller or a cash advance from 
a bank) is usually a larceny of money from the entity presenting the 
money or a negotiable instrument. For the purpose of this section, the 
term `credit, debit, or electronic transaction' includes the use of an 
instrument or device, whether known as a credit card, debit card, 
automated teller machine (ATM) card or by any other name, including 
access devices such as code, account number, electronic serial number or 
personal identification number, issued for the use in obtaining money, 
goods, or anything else of value.''.
    i. Paragraph 51e(1) is amended to read as follows:
    ``(1) By force and without consent. Dishonorable discharge, 
forfeiture of all pay and allowances, and confinement for life without 
eligibility for parole.''.
    j. Paragraph 51e(3) is amended to read as follows:
    ``(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 without eligibility for parole.''
    k. Paragraph 62c is amended to read as follows:
    ``c. Explanation.
    ``(1) Nature of offense. Adultery is clearly unacceptable conduct, 
and it reflects adversely on the service record of the military member.
    ``(2) Conduct prejudicial to good order and discipline or of a 
nature to bring discredit upon the armed forces. To constitute an 
offense under the UCMJ, the adulterous conduct must either be directly 
prejudicial to good order and discipline or service discrediting. 
Adulterous conduct that is directly prejudicial includes conduct that 
has an obvious, and measurably divisive effect on unit or organization 
discipline, morale, or cohesion, or is clearly detrimental to the 
authority or stature of or respect toward a servicemember. Adultery may 
also be service discrediting, even though the conduct is only indirectly 
or remotely prejudicial to good order and discipline. Discredit means to 
injure the reputation of the armed forces and includes adulterous 
conduct that has a tendency, because of its open or notorious nature, to 
bring the service into disrepute, make it subject to public ridicule, or 
lower it in public esteem. While adulterous conduct that is private and 
discreet in nature may not be service discrediting by this standard, 
under the circumstances, it may be determined to be

[[Page 624]]

conduct prejudicial to good order and discipline. Commanders should 
consider all relevant circumstances, including but not limited to the 
following factors, when determining whether adulterous acts are 
prejudicial to good order and discipline or are of a nature to bring 
discredit upon the armed forces:
    ``(a) The accused's marital status, military rank, grade, or 
position;
    ``(b) The co-actor's marital status, military rank, grade, and 
position, or relationship to the armed forces;
    ``(c) The military status of the accused's spouse or the spouse of 
co-actor, or their relationship to the armed forces;
    ``(d) The impact, if any, of the adulterous relationship on the 
ability of the accused, the co-actor, or the spouse of either to perform 
their duties in support of the armed forces;
    ``(e) The misuse, if any, of government time and resources to 
facilitate the commission of the conduct;
    ``(f) Whether the conduct persisted despite counseling or orders to 
desist; the flagrancy of the conduct, such as whether any notoriety 
ensued; and whether the adulterous act was accompanied by other 
violations of the UCMJ;
    ``(g) The negative impact of the conduct on the units or 
organizations of the accused, the co-actor or the spouse of either of 
them, such as a detrimental effect on unit or organization morale, 
teamwork, and efficiency;
    ``(h) Whether the accused or co-actor was legally separated; and
    ``(i) Whether the adulterous misconduct involves an ongoing or 
recent relationship or is remote in time.
    ``(3) Marriage. A marriage exists until it is dissolved in 
accordance with the laws of a competent state or foreign jurisdiction.
    ``(4) Mistake of fact. A defense of mistake of fact exists if the 
accused had an honest and reasonable belief either that the accused and 
the co-actor were both unmarried, or that they were lawfully married to 
each other. If this defense is raised by the evidence, then the burden 
of proof is upon the United States to establish that the accused's 
belief was unreasonable or not honest.''.
    l. Paragraph 92e is amended to read as follows:
    ``e. Maximum punishment. Dishonorable discharge, forfeiture of all 
pay and allowances, and confinement for life without eligibility for 
parole.''.
    m. Paragraphs 32e, 33e, 46c(1)(g)(iii), 46e, 49e, 52e, 58e, 78e and 
106e are amended by striking ``$100.00'' each place it appears and 
inserting ``$500.00''.
    Sec. 6. These amendments shall take effect on May 15, 2002.
    a. The amendments made to Rules for Courts-Martial 806(d) and 
1001(b)(3)(A) shall only apply in cases in which arraignment has been 
completed on or after May 15, 2002.
    b. The amendments made to Rules for Courts-Martial 1003(b)(7), 
1004(e), 1006(d)(4)(B), and 1009(e)(3)(B)(ii) shall only apply to 
offenses committed after November 18, 1997. In cases not involving these 
amendments, the maximum punishment for an offense committed prior to May 
15, 2002, shall not exceed the applicable maximum in effect at the time 
of the commission of such offense. Provided further, that for offenses 
committed prior to May 15, 2002, for which a sentence is adjudged on or 
after May 15, 2002, if the maximum punishment authorized in this Manual 
is less than that previously authorized, the lesser maximum authorized 
punishment shall apply.
    c. The amendment made to Military Rules of Evidence 615 shall apply 
only in cases in which arraignment has been completed on or after May 
15, 2002.
    d. Nothing in these amendments shall be construed to make punishable 
any act done or omitted prior to May 15, 2002, that was not punishable 
when done or omitted.
    e. 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 May 15, 2002, 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

[[Page 625]]

as if these amendments had not been prescribed.
                                                George W. Bush
 The White House,
 April 11, 2002.

 [Filed with the Office of the Federal Register, 8:45 a.m., April 16, 
2002]

Note: This Executive order was released by the Office of the Press 
Secretary on April 12, and it was published with its attached annex in 
the Federal Register on April 17. This item was not received in time for 
publication in the appropriate issue.