[Weekly Compilation of Presidential Documents Volume 40, Number 49 (Monday, December 6, 2004)]
[Pages 2899-2904]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 13365--2004 Amendments to the Manual for Courts-Martial, 
United States

December 3, 2004

    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. (a) Paragraph 4 of the Preamble to Part I of the Manual 
for Courts-Martial, United States, is amended by adding a third 
subparagraph to read as follows:
    ``The Department of Defense Joint Service Committee (JSC) on 
Military Justice reviews the Manual for Courts-Martial and proposes 
amendments to the Department of Defense for consideration by the 
President on an annual basis. In conducting its annual review, the JSC 
is guided by DoD Directive 5500.17, ``The Roles and Responsibilities of 
the Joint Service Committee (JSC) on Military Justice.'' DoD Directive 
5500.17 includes provisions allowing public participation in the annual 
review process.''
    (b) Department of Defense Directive 5500.17 shall be included as 
Appendix 26 to the Manual for Courts-Martial, United States.
    Sec. 2. Part II of the Manual for Courts-Martial, United States, is 
amended as follows:

[[Page 2900]]

    (a) R.C.M. 307(c)(3) is amended to read as follows:
    ``Specification. A specification is a plain, concise, and definite 
statement of the essential facts constituting the offense charged. A 
specification is sufficient if it alleges every element of the charged 
offense expressly or by necessary implication. Except for aggravating 
factors under R.C.M. 1003(d) and R.C.M. 1004, facts that increase the 
maximum authorized punishment must be alleged in order to permit the 
possible increased punishment. No particular format is required.''
    (b) R.C.M. 707(b)(3)(D) is amended to read as follows:
    ``Rehearings. If a rehearing is ordered or authorized by an 
appellate court, a new 120-day time period under this rule shall begin 
on the date that the responsible convening authority receives the record 
of trial and the opinion authorizing or directing a rehearing. An 
accused is brought to trial within the meaning of this rule at the time 
of arraignment under R.C.M. 904 or, if arraignment is not required (such 
as in the case of a sentence-only rehearing), at the time of the first 
session under R.C.M. 803.''
    (c) R.C.M. 707(c) is amended to read as follows:
    ``(c) Excludable delay. All periods of time during which appellate 
courts have issued stays in the proceedings, or the accused is absent 
without authority, or the accused is hospitalized due to incompetence, 
or is otherwise in the custody of the Attorney General, shall be 
excluded when determining whether the period in subsection (a) of this 
rule has run. All other pretrial delays approved by a military judge or 
the convening authority shall be similarly excluded.''
    (d) R.C.M. 707(d) is amended to read as follows:
    ``(d) Remedy. A failure to comply with this rule will result in 
dismissal of the affected charges, or, in a sentence-only rehearing, 
sentence relief as appropriate.
    ``(1) Dismissal. Dismissal will be with or without prejudice to the 
government's right to reinstitute court-martial proceedings against the 
accused for the same offense at a later date. The charges must be 
dismissed with prejudice where the accused has been deprived of his or 
her constitutional right to a speedy trial. In determining whether to 
dismiss charges with or without prejudice, the court shall consider, 
among others, each of the following factors: the seriousness of the 
offense; the facts and circumstances of the case that lead to dismissal; 
the impact of a re-prosecution on the administration of justice; and any 
prejudice to the accused resulting from the denial of a speedy trial.
    ``(2) Sentence relief. In determining whether or how much sentence 
relief is appropriate, the military judge shall consider, among others, 
each of the following factors: the length of the delay, the reasons for 
the delay, the accused's demand for speedy trial, and any prejudice to 
the accused from the delay. Any sentence relief granted will be applied 
against the sentence approved by the convening authority.''
    (e) R.C.M. 806(b) is amended to read as follows:
     ``(b) Control of spectators and closure.
    ``(1) Control of spectators. In order to maintain the dignity and 
decorum of the proceedings or for other good cause, the military judge 
may reasonably limit the number of spectators in, and the means of 
access to, the courtroom, and exclude specific persons from the 
courtroom. When excluding specific persons, the military judge must make 
findings on the record establishing the reason for the exclusion, the 
basis for the military judge's belief that exclusion is necessary, and 
that the exclusion is as narrowly tailored as possible.
    ``(2) Closure. Courts-martial shall be open to the public unless (1) 
there is a substantial probability that an overriding interest will be 
prejudiced if the proceedings remain open; (2) closure is no broader 
than necessary to protect the overriding interest; (3) reasonable 
alternatives to closure were considered and found inadequate; and (4) 
the military judge makes case-specific findings on the record justifying 
closure.''
    (f) R.C.M. 916(k)(2) is amended to read as follows:
    ``(2) Partial mental responsibility. A mental condition not 
amounting to a lack of mental responsibility under subsection (k)(1) of 
this rule is not an affirmative defense.''

[[Page 2901]]

    (g) R.C.M. 1103(f)(2) is amended to read as follows:
    ``(2) Direct a rehearing as to any offense of which the accused was 
found guilty if the finding is supported by the summary of the evidence 
contained in the record, provided that the convening authority may not 
approve any sentence imposed at such a rehearing more severe than or in 
excess of that adjudged by the earlier court-martial.''
    (h) The following subsection (iv) is inserted after R.C.M. 
1107(e)(1)(B)(iii) to read as follows:
    ``(iv) Sentence reassessment. If a superior authority has approved 
some of the findings of guilty and has authorized a rehearing as to 
other offenses and the sentence, the convening authority may, unless 
otherwise directed, reassess the sentence based on the approved findings 
of guilty and dismiss the remaining charges. Reassessment is appropriate 
only where the convening authority determines that the accused's 
sentence would have been at least of a certain magnitude had the 
prejudicial error not been committed and the reassessed sentence is 
appropriate in relation to the affirmed findings of guilty.''
    (i) 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 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 or a sentence of confinement 
for life without eligibility for parole that has been ordered executed. 
The Secretary concerned may, however, suspend or remit the unexecuted 
part of a sentence of confinement for life without eligibility for 
parole only after the service of a period of confinement of not less 
than 20 years. The commander of the accused who has the authority to 
convene a court-martial of the kind that adjudged the sentence may 
suspend or remit any part of the unexecuted part of any sentence by 
summary court-martial or of any sentence by special court-martial that 
does not include a bad-conduct discharge regardless of whether the 
person acting has previously approved the sentence. The ``unexecuted 
part of any sentence'' is that part that has been approved and ordered 
executed but that has not actually been carried out.''
    (j) R.C.M. 1305(c) is amended to read as follows:
    ``(c) Authentication. The summary court-martial shall authenticate 
the record by signing the original record of trial.''
    (k) R.C.M. 1306(b)(1) is amended to read as follows:
    ``(1) Who shall act. Except as provided herein, the convening 
authority shall take action in accordance with R.C.M. 1107. The 
convening authority shall not take action before the period prescribed 
in R.C.M. 1105(c)(2) has expired, unless the right to submit matters has 
been waived under R.C.M. 1105(d).''
    Sec. 3. Part III of the Manual for Courts-Martial, United States, is 
amended as follows:
    (a) Mil. R. Evid. 103(a)(2) is amended to read as follows:
    ``(2) Offer of proof. In case the ruling is one excluding evidence, 
the substance of the evidence was made known to the military judge by 
offer or was apparent from the context within which questions were 
asked. Once the military judge makes a definitive ruling on the record 
admitting or excluding evidence, either at or before trial, a party need 
not renew an objection or offer of proof to preserve a claim of error 
for appeal. The standard provided in this subdivision does not apply to 
errors involving requirements imposed by the Constitution of the United 
States as applied to members of the armed forces except insofar as the 
error arises under these rules and this subdivision provides a standard 
that is more advantageous to the accused than the constitutional 
standard.''
    (b) Mil. R. Evid. 404(a) is amended to read as follows:

[[Page 2902]]

    ``(a) Character evidence generally. Evidence of a person's character 
or a trait of character is not admissible for the purpose of proving 
action in conformity therewith on a particular occasion, except:
    ``(1) Character of accused. Evidence of a pertinent trait of 
character offered by an accused, or by the prosecution to rebut the 
same, or if evidence of a pertinent trait of character of the alleged 
victim of the crime is offered by an accused and admitted under Mil. R. 
Evid. 404(a)(2), evidence of the same trait of character, if relevant, 
of the accused offered by the prosecution;
    ``(2) Character of alleged victim. Evidence of a pertinent trait of 
character of the alleged victim of the crime offered by an accused, or 
by the prosecution to rebut the same, or evidence of a character trait 
of peacefulness of the alleged victim offered by the prosecution in a 
homicide or assault case to rebut evidence that the alleged victim was 
an aggressor;
    ``(3) Character of witness. Evidence of the character of a witness, 
as provided in Mil. R. Evid. 607, 608, and 609.''
    (c) Mil. R. Evid. 701 is amended to read as follows:
    ``If the witness is not testifying as an expert, the witness' 
testimony in the form of opinions or inferences is limited to those 
opinions or inferences that are (a) rationally based on the perception 
of the witness, (b) helpful to a clear understanding of the witness' 
testimony or the determination of a fact in issue, and (c) not based in 
scientific, technical, or other specialized knowledge within the scope 
of Rule 702.''
    (d) Mil. R. Evid. 702 is amended to read as follows:
    ``If scientific, technical, or other specialized knowledge will 
assist the trier of fact to understand the evidence or to determine a 
fact in issue, a witness qualified as an expert by knowledge, skill, 
experience, training, or education may testify thereto in the form of an 
opinion or otherwise if (1) the testimony is based upon sufficient facts 
or data, (2) the testimony is the product of reliable principles and 
methods, and (3) the witness has applied the principles and methods 
reliably to the facts of the case.''
    (e) Mil. R. Evid. 703 is amended to read as follows:
    ``The facts or data in the particular case upon which an expert 
bases an opinion or inference may be those perceived by or made known to 
the expert, at or before the hearing. If of a type reasonably relied 
upon by experts in the particular field in forming opinions or 
inferences upon the subject, the facts or data need not be admissible in 
evidence in order for the opinion or inference to be admitted. Facts or 
data that are otherwise inadmissible shall not be disclosed to the 
members by the proponent of the opinion or inference unless the military 
judge determines that their probative value in assisting the members to 
evaluate the expert's opinion substantially outweighs their prejudicial 
effect.''
    (f) Mil. R. Evid. 803(6) is amended to read as follows:
    ``Records of regularly conducted activity. A memorandum, report, 
record, or data compilation, in any form, of acts, events, conditions, 
opinions, or diagnoses, made at or near the time by, or from information 
transmitted by, a person with knowledge, if kept in the course of a 
regularly conducted business activity, and if it was the regular 
practice of that business activity to make the memorandum, report, 
record, or data compilation, all as shown by the testimony of the 
custodian or other qualified witness, or by certification that complies 
with Mil. R. Evid. 902(11) or any other statute permitting certification 
in a criminal proceeding in a court of the United States, unless the 
source of the information or the method or circumstances of preparation 
indicate a lack of trustworthiness. The term ``business'' as used in 
this paragraph includes the armed forces, a business, institution, 
association, profession, occupation, and calling of every kind, whether 
or not conducted for profit. Among those memoranda, reports, records, or 
data compilations normally admissible pursuant to this paragraph are 
enlistment papers, physical examination papers, outline-figure and 
fingerprint cards, forensic laboratory reports, chain of custody 
documents, morning reports and other personnel accountability documents, 
service records, officer and enlisted qualification records, logs, unit 
personnel diaries, individual equipment records, daily strength

[[Page 2903]]

records of prisoners, and rosters of prisoners.''
    (g) The following subsection (11) is inserted after Mil. R. Evid. 
902(10) to read as follows:
    ``(11) Certified domestic records of regularly conducted activity. 
The original or a duplicate of a domestic record of regularly conducted 
activity that would be admissible under Mil. R. Evid. 803(6) if 
accompanied by a written declaration of its custodian or other qualified 
person, in a manner complying with any Act of Congress or rule 
prescribed by the Supreme Court pursuant to statutory authority, 
certifying that the record (A) was made at or near the time of the 
occurrence of the matters set forth by, or from information transmitted 
by, a person with knowledge of those matters; (B) was kept in the course 
of the regularly conducted activity; and (C) was made by the regularly 
conducted activity as a regular practice. A party intending to offer a 
record into evidence under this paragraph must provide written notice of 
that intention to all adverse parties, and must make the record and 
declaration available for inspection sufficiently in advance of their 
offer into evidence to provide an adverse party with a fair opportunity 
to challenge them.''
    (h) Mil. R. Evid. 1102 is amended to read as follows:
    ``(a) Amendments to the Federal Rules of Evidence shall apply to the 
Military Rules of Evidence 18 months after the effective date of such 
amendments, unless action to the contrary is taken by the President.
    ``(b) Rules Determined Not To Apply. The President has determined 
that the following Federal Rules of Evidence do not apply to the 
Military Rules of Evidence: Rules 301, 302, 415, and 902(12).''
    Sec. 4. Part IV of the Manual for Courts-Martial, United States, is 
amended as follows:
    (a) Paragraph 45(b)(2) is amended by deleting paragraph 45(b)(2)(c) 
and inserting the following after paragraph 45(b)(2)(b):
    ``(c)(1) That at the time of the sexual intercourse the person was 
under the age of 12; or
    ``(2) That at the time of the sexual intercourse the person had 
attained the age of 12 but was under the age of 16.''
    (b) Paragraph 45(f) is amended to read as follows:
    ``f. Sample specifications.
    ``(1) Rape.
    ``In that __________ (personal jurisdiction data), did, (at/on 
board--location) (subject-matter jurisdiction data, if required), on or 
about ____ 20__, rape __________, (a person under the age of 12) (a 
person who had attained the age of 12 but was under the age of 16).
    ``(2) Carnal Knowledge.
    ``In that __________ (personal jurisdiction data), did, (at/on 
board--location) (subject-matter jurisdiction data, if required), on or 
about ____ 20__, commit the offense of carnal knowledge with __________, 
(a person under the age of 12) (a person who attained the age of 12 but 
was under the age of 16).''
    (c) Paragraph 51(b) is amended to read as follows:
    ``(1) That the accused engaged in unnatural carnal copulation with a 
certain other person or with an animal.
    ``(Note: Add any of the following as applicable)
    ``(2) That the act was done with a child under the age of 12.
    ``(3) That the act was done with a child who had attained the age of 
12 but was under the age of 16.
    ``(4) That the act was done by force and without the consent of the 
other person.''
    (d) Paragraph 51(f) is amended to read as follows:
    ``f. Sample specification.
    ``In that __________ (personal jurisdiction data), did, (at/on 
board--location) (subject-matter jurisdiction data, if required), on or 
about ____ 20__, commit sodomy with __________, (a child under the age 
of 12) (a child who had attained the age of 12 but was under the age of 
16) (by force and without the consent of the said __________).''
    (e) Paragraph 57(c)(2)(b) is amended to read as follows:
    ``(b) Material matter. The false testimony must be with respect to a 
material matter, but that matter need not be the main issue in the case. 
Thus, perjury may be committed by giving false testimony with respect to 
the

[[Page 2904]]

credibility of a material witness or in an affidavit in support of a 
request for a continuance, as well as by giving false testimony with 
respect to a fact from which a legitimate inference may be drawn as to 
the existence or nonexistence of a fact in issue.''
    (f) Paragraph 100a(c)(1) is amended to read as follows:
    ``(1) In general. This offense is intended to prohibit and therefore 
deter reckless or wanton conduct that wrongfully creates a substantial 
risk of death or grievous bodily harm to others.''
    (g) Paragraph 100a(f) is amended to read as follows:
    ``f. Sample specification.
    ``In that __________ (personal jurisdiction data), did, (at/on 
board--location) (subject-matter jurisdiction data, if required), on or 
about ____ 20__, wrongfully and (recklessly) (wantonly) engage in 
conduct, to wit: (describe conduct), conduct likely to cause death or 
grievous bodily harm to __________.''
    Sec. 5. These amendments shall take effect 30 days from the date of 
this order.
    (a) Nothing in these amendments shall be construed to make 
punishable any act done or omitted prior to the effective date of this 
order that was not punishable when done or omitted.
    (b) 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 the effective date of this order, and any such nonjudicial 
proceeding, 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.
                                                George W. Bush
 The White House,
 December 3, 2004.

 [Filed with the Office of the Federal Register, 8:45 a.m., December 7, 
2004]

Note: This Executive order will be published in the Federal Register on 
December 8.