Amendments to the Manual for Courts-Martial, United States, 1984

[Federal Register Volume 60, Number 95 (Wednesday, May 17, 1995)]

[Presidential Documents]

[Pages 26647-26666]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 95-12285]

[[Page 26645]]

_______________________________________________________________________

Part IX

The President

_______________________________________________________________________

Executive Order 12960--Amendments to the Manual For Courts-Martial,

United States, 1984

Presidential Documents

Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 /

Presidential Documents

___________________________________________________________________

Title 3--

The President

[[Page 26647]]

Executive Order 12960 of May 12, 1995

Amendments to the Manual for Courts-Martial,

United States, 1984

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 [[Page 26648]] 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.''

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. [[Page 26649]]

(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.''

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: [[Page 26650]]

``(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 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: [[Page 26651]]

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 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. [[Page 26652]]

(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, 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

[[Page 26653]] 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

(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. [[Page 26654]]

[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.

(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. [[Page 26655]]

(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 [[Page 26656]] 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 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). [[Page 26657]]

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

prejudicial 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.

(Presidential Sig.)

THE WHITE HOUSE,

May 12, 1995.

Billing code 3195-01-P

[[Page 26658]]

Changes to the Analysis accompanying the Manual for

Courts-Martial, United States, 1984.

1. Changes to Appendix 21, the Analysis accompanying

the Rules for Courts-Martial (Part II, MCM, 1984).

a. R.C.M. 203. The Analysis accompanying R.C.M. 203 is

amended by inserting the following at the end thereof:

``1995 Amendment: The discussion was amended in

light of Solorio v. United States, 483 U.S. 435 (1987).

O'Callahan v. Parker, 395 U.S. 258 (1969), held that an

offense under the code could not be tried by court-

martial unless the offense was ``service connected.''

Solorio overruled O'Callahan.''

b. R.C.M. 307. The Analysis accompanying R.C.M. 307 is

amended by inserting the following at the end thereof:

``1995 Amendment: The discussion was amended in

conformance with a concurrent change to R.C.M. 203, in

light of Solorio v. United States, 483 U.S. 435 (1987).

O'Callahan v. Parker, 395 U.S. 258 (1969), held that an

offense under the code could not be tried by court-

martial unless the offense was ``service connected.''

Solorio overruled O'Callahan.''

c. R.C.M. 810. The Analysis accompanying R.C.M. 810 is

amended by inserting the following at the end thereof:

``1995 Amendment: Subsection (d) was amended in

light of the change to Article 63 effected by the

National Defense Authorization Act for Fiscal Year

1993, Pub. L. No. 102-484, 106 Stat. 2315, 2506 (1992).

The amendment reflects that subsection (d) sentencing

limitations only affect the sentence that may be

approved by the convening or higher authority following

the rehearing, new trial or other trial. Subsection (d)

does not limit the maximum sentence that may be

adjudged at the rehearing, new trial, or other trial.''

d. R.C.M. 924. The Analysis accompanying R.C.M. 924 is

amended by inserting the following at the end thereof:

``1995 Amendment: The amendment limits

reconsideration of findings by the members to findings

reached in closed session but not yet announced in open

court and provides for the military judge, in judge

alone cases, to reconsider the ``guilty finding'' of a

not guilty only by reason of lack of mental

responsibility finding.''

e. R.C.M. 1003(b). The Analysis accompanying R.C.M.

1003(b) is amended by inserting the following:

``1995 Amendment: Punishment of confinement on

bread and water or diminished rations [R.C.M.

1003(d)(9)], as a punishment imposable by a court-

martial, was deleted. Confinement on bread and water or

diminished rations was originally intended as an

immediate, remedial punishment. While this is still the

case with nonjudicial punishment (Article 15), it is

not effective as a court-martial punishment.

Subsections (d)(10) through (d)(12) were redesignated

(d)(9) through (d)(11), respectively.''

f. R.C.M. 1009. The Analysis accompanying R.C.M. 1009

is amended by inserting the following at the end

thereof:

``1995 Amendment: This rule was changed to prevent

a sentencing authority from reconsidering a sentence

announced in open session. Subsection (b) was amended

to allow reconsideration if the sentence was less than

the mandatory maximum prescribed for the offense or the

sentence exceeds the maximum permissible punishment for

the offense or the jurisdictional limitation of the

court-martial. Subsection (c) is new and provides for

the military judge to clarify an announced sentence

that is ambiguous. Subsection (d) provides for the

convening authority to exercise discretionary authority

to return an ambiguous sentence for clarification, or

take action consistent with R.C.M. 1107.''

g. R.C.M. 1103. The Analysis accompanying R.C.M. 1103

is amended by inserting the following at the end

thereof:

``1995 Amendment: Punishment of confinement on

bread and water or diminished rations [R.C.M.

1003(d)(9)], as a punishment imposable by a

[[Page 26659]] court-martial, was deleted.

Consequently, the requirement to attach a Medical

Certificate to the record of trial [R.C.M.

1103(b)(3)(L)] was deleted. Subsections (3)(M) and

(3)(N) were redesignated (3)(L) and (3)(M),

respectively.''

h. R.C.M. 1105(b)(4). The Analysis accompanying R.C.M.

1105(b) is amended to read as follows:

``1995 Amendment: The Discussion accompanying

subsection (b)(4) was amended to reflect the new

requirement, under R.C.M. 1106(d)(3)(B), that the staff

judge advocate or legal advisor inform the convening

authority of a recommendation for clemency by the

sentencing authority, made in conjunction with the

announced sentence.''

i. R.C.M. 1106(d)(3). The Analysis accompanying R.C.M.

1106(d) is amended to read as follows:

``1995 Amendment: Subsection (d)(3)(B) is new. It

requires that the staff judge advocate's or legal

advisor's recommendation inform the convening authority

of any clemency recommendation made by the sentencing

authority in conjunction with the announced sentence,

absent a written request by the defense to the

contrary. Prior to this amendment, an accused was

responsible for informing the convening authority of

any such recommendation. The amendment recognizes that

any clemency recommendation is so closely related to

the sentence that staff judge advocates and legal

advisors should be responsible for informing convening

authorities of it. The accused remains responsible for

informing the convening authority of other

recommendations for clemency, including those made by

the military judge in a trial with member sentencing

and those made by individual members. See United States

v. Clear, 34 M.J. 129 (C.M.A. 1992); R.C.M. 1105(b)(4).

Subsections (d)(3)(B)--(d)(3)(E) are redesignated as

(d)(3)(C)--(d)(3)(F), respectively.''

j. R.C.M. 1107(d). The Analysis accompanying R.C.M.

1107(d) is amended to read as follows:

``1995 Amendment: Subsection (d)(3) is new. It is

based on the recently enacted Article 57(e). National

Defense Authorization Act for Fiscal Year 1993, Pub. L.

No. 102-484, 106 Stat. 2315, 2505 (1992). See generally

Interstate Agreement on Detainers Act, 18 U.S.C. App.

III. It permits a military sentence to be served

consecutively, rather than concurrently, with a

civilian or foreign sentence. The prior subsection

(d)(3) is redesignated (d)(4).''

k. R.C.M. 1107(d)(2). The Analysis accompanying R.C.M.

1107(d)(2) is amended to read as follows:

``1995 Amendment: The last sentence in the

Discussion accompanying subsection (d)(2) is new. It

clarifies that forfeitures adjudged at courts-martial

take precedence over all debts owed by the accused.

Department of Defense Military Pay and Allowances

Entitlement Manual, Volume 7, Part A, paragraph 70507a

(12 December 1994).''

l. R.C.M. 1107(e)(1)(C)(iii). The Analysis accompanying

R.C.M. 1107(e)(1) is amended to read as follows:

``1995 Amendment: The second sentence in R.C.M.

1107(e)(1)(C)(iii) is new. It expressly recognizes that

the convening authority may approve a sentence of no

punishment if the convening authority determines that a

rehearing on sentence is impracticable. This authority

has been recognized by the appellate courts. See e.g.,

United States v. Monetesinos, 28 M.J. 38 (C.M.A. 1989);

United States v. Sala, 30 M.J. 813 (A.C.M.R. 1990).''

m. R.C.M. 1107(f)(2). The Analysis accompanying R.C.M.

1107(f)(2) is amended by inserting the following at its

end:

``1995 Amendment: The amendment allows a convening

authority to recall and modify any action after it has

been published or after an accused has been officially

notified, but before a record has been forwarded for

review, as long as the new action is not less favorable

to the accused than the prior action. A convening

authority is not limited to taking only corrective

action, but may also modify the approved findings or

sentence provided the modification is not less

favorable to the accused than the earlier

action.'' [[Page 26660]]

n. R.C.M. 1113(d)(2)(A). The Analysis accompanying

R.C.M. 1113(d)(2)(A) is amended by inserting the

following at the end thereof:

``1995 Amendment: Subsection (d)(2)(A)(iii) is new.

It is based on the recently enacted Article 57(e).

National Defense Authorization Act for Fiscal Year

1993, Pub. L. No. 102-484, 106 Stat. 2315, 2505 (1992).

See generally Interstate Agreement on Detainers Act, 18

U.S.C. App. III. It permits a military sentence to be

served consecutively, rather than concurrently, with a

civilian or foreign sentence. The prior subsections

(d)(2)(A)(iii)--(iv) are redesignated (d)(2)(A)(iv)--

(v), respectively.''

o. R.C.M. 1113(d)(5). The Analysis accompanying R.C.M.

1113(d)(5) is amended by inserting the following at the

end thereof:

``1995 Amendment: Subsection (5) was deleted when

the punishment of confinement on bread and water or

diminished rations [R.C.M. 1113(d)(9)], as a punishment

imposable by a court-martial, was deleted. Subsection

(6) was redesignated (5).''

p. R.C.M. 1201(b)(1). The Analysis accompanying R.C.M.

1201(b)(1) is amended to read as follows:

``1995 Amendment: The Discussion accompanying

subsection (1) was amended to conform with the language

of Article 69(a), as enacted by the Military Justice

Amendments of 1989, tit. XIII, sec. 1302(a)(2),

National Defense Authorization Act for Fiscal Years

1990 and 1991, Pub. L. No. 101-189, 103 Stat. 1352,

1576 (1989).''

2. Changes to Appendix 21, the Analysis accompanying

the Punitive Articles (Part IV, MCM, 1984).

a. Paragraph 4c. The Analysis accompanying paragraph 4c

is amended to read as follows:

``1995 Amendment: Subparagraph (4) is new. It

recognizes voluntary abandonment as an affirmative

defense as established by the case law. See United

States v. Byrd, 24 M.J. 286 (C.M.A. 1987). See also

United States v. Schoof, 37 M.J. 96, 103-04 (C.M.A.

1993); United States v. Rios, 33 M.J. 436, 440-41

(C.M.A. 1991); United States v. Miller, 30 M.J. 999

(N.M.C.M.R. 1990); United States v. Walther, 30 M.J.

829, 829-33 (N.M.C.M.R. 1990). The prior subparagraphs

(4)--(6) have been redesignated (5)--(7),

respectively.''

b. Paragraph 30a.c. The Analysis accompanying paragraph

30a.c., is amended as follows:

``1995 Amendment: This subparagraph was amended to

clarify that the intent element of espionage is not

satisfied merely by proving that the accused acted

without lawful authority. Article 106a, Uniform Code of

Military Justice. The accused must have acted in bad

faith. United States v. Richardson, 33 M.J. 127 (C.M.A.

1991); see Gorin v. United States, 312 U.S. 19, 21 n.1

(1941).''

c. Paragraph 35. The Analysis accompanying paragraph 35

is amended to read as follows:

``1995 Amendment: This paragraph was amended

pursuant to the changes to Article 111 included in the

National Defense Authorization Act for Fiscal Year

1993, Pub. L. No. 102-484, 106 Stat. 2315, 2506 (1992).

New subparagraphs c(2) and (3) were added to include

vessels and aircraft, respectively. Paragraph 35 was

also amended to make punishable actual physical control

of a vehicle, aircraft, or vessel while drunk or

impaired, or in a reckless fashion, or while one's

blood or breath alcohol concentration is in violation

of the described per se standard. A new subparagraph

c(5) was added to define the concept of actual physical

control. This change allows drunk or impaired

individuals who demonstrate the capability and power to

operate a vehicle, aircraft, or vessel to be

apprehended if in the vehicle, aircraft, or vessel, but

not actually operating it at the time.

The amendment also clarifies that culpability

extends to the person operating or exercising actual

physical control through the agency of another (e.g.,

the captain of a ship giving orders to a helmsman). The

amendment also provides a blood/alcohol blood/breath

concentration of 0.10 or greater [[Page 26661]] as a

per se standard for illegal intoxication. The change

will not, however, preclude prosecution where no

chemical test is taken or even where the results of the

chemical tests are below the statutory limits, where

other evidence of intoxication is available. See United

States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970).

A new paragraph c(9) was added to clarify that in

order to show that the accused caused personal injury,

the government must prove proximate causation and not

merely cause-in-fact. Accord United States v.

Lingenfelter, 30 M.J. 302 (C.M.A. 1990). The definition

of ``proximate cause'' is based on United States v.

Romero, 1 M.J. 227, 230 (C.M.A. 1975). Previous

subparagraph c(2) is renumbered c(4). Previous

subparagraphs c(3)-c(5) are renumbered c(6)-c(8),

respectively, and previous subparagraph c(6) is

renumbered c(10).

Subparagraphs d(1) and (2) are redesignated d(2)(b)

and d(2)(c). The new d(2)(a) adds Article 110 (improper

hazarding of a vessel) as a lesser included offense of

drunken operation or actual physical control of a

vessel. The new d(1) adds Article 110 (improper

hazarding of a vessel) as a lesser included offense of

reckless or wanton or impaired operation or physical

control of a vessel.''

d. Paragraph 43. The Analysis accompanying paragraph 43

is amended to read as follows:

``1995 Amendment: The word ``others'' was replaced

by the word ``another'' in Article 118(3) pursuant to

the National Defense Authorization Act for Fiscal Year

1993, Pub. L. No. 102-484, 106 Stat. 2315, 2506 (1992).

This change addresses the limited language previously

used in Article 118(3) as identified in United States

v. Berg, 30 M.J. 195 (C.M.A. 1990).''

e. Paragraph 45. The Analysis accompanying paragraph 45

is amended to read as follows:

``1995 Amendment: The offense of rape was made

gender neutral and the spousal exception was removed

under Article 120(a). National Defense Authorization

Act for Fiscal Year 1993, Pub. L. No. 102-484, 106

Stat. 2315, 2506 (1992).

Rape may ``be punished by death'' only if

constitutionally permissible. In Coker v. Georgia, 322

U.S. 585 (1977), the Court held that the death penalty

is ``grossly disproportionate and excessive punishment

for the rape of an adult woman,'' and is ``therefore

forbidden by the Eighth Amendment as cruel and unusual

punishment.'' Id. at 592 (plurality opinion). Coker,

however, leaves open the question of whether it is

permissible to impose the death penalty for the rape of

a minor by an adult. See Coker, 433 U.S. at 595. See

Leatherwood v. State, 548 So.2d 389 (Miss. 1989) (death

sentence for rape of minor by an adult is not cruel and

unusual punishment prohibited by the Eighth Amendment).

But see Buford v. State, 403 So.2d 943 (Fla. 1981)

(sentence of death is grossly disproportionate for

sexual assault of a minor by an adult and consequently

is forbidden by Eighth Amendment as cruel and unusual

punishment).''

f. Paragraph 89. The Analysis accompanying paragraph

89c is amended to read as follows:

``1995 Amendment: The second sentence is new. It

incorporates a test for ``indecent language'' adopted

by the Court of Military Appeals in United States v.

French, 31 M.J. 57, 60 (C.M.A. 1990). The term ``tends

reasonably'' is substituted for the term ``calculated

to'' to avoid the misinterpretation that indecent

language is a specific intent offense.''

g. Paragraph 103a. Insert the following after the

Analysis of paragraph 103:

``103a. Article 134 (Self-injury without intent to

avoid service)

c. Explanation. 1995 Amendment. This offense is

based on paragraph 183a of MCM, U.S. Army, 1949; United

States v. Ramsey, 35 M.J. 733 (A.C.M.R. 1992), aff'd,

40 M.J. 71 (C.M.A. 1994); United States v. Taylor, 38

C.M.R. 393 (C.M.A. 1968); see generally TJAGSA Practice

Note, Confusion About Malingering and Attempted

Suicide, The Army Lawyer, June 1992, at

38. [[Page 26662]]

e. Maximum punishment. 1995 Amendment. The

maximum punishment for subsection (1) reflects the

serious effect that this offense may have on readiness

and morale. The maximum punishment reflects the range

of the effects of the injury, both in degree and

duration, on the ability of the accused to perform

work, duty, or service. The maximum punishment for

subsection (1) is equivalent to that for offenses of

desertion, missing movement through design, and certain

violations of orders. The maximum punishment for

subsection (2) is less than the maximum punishment for

the offense of malingering under the same circumstances

because of the absence of the specific intent to avoid

work, duty, or service. The maximum punishment for

subsection (2) is equivalent to that for nonaggravated

offenses of desertion, willfully disobeying a superior

commissioned officer, and nonaggravated malingering by

intentional self-inflicted injury.

f. Sample specification. 1995 Amendment. See

appendix 4, paragraph 177 of MCM, U.S. Army, 1949.

Since incapacitation to perform duties is not an

element of the offense, language relating to

``unfitting himself for the full performance of

military service'' from the 1949 MCM has been omitted.

The phrase ``willfully injure'' has been changed to

read ``intentionally injure'' to parallel the language

contained in the malingering specification under

Article 115.''

3. Changes to Appendix 22, the Analysis accompanying

the Military Rules of Evidence (Part III, MCM, 1984).

a. M.R.E. 311(g)(2). The Analysis accompanying M.R.E.

311(g)(2) is amended by inserting the following at the

end thereof:

``1995 Amendment: Subsection (g)(2) was amended to

clarify that in order for the defense to prevail on an

objection or motion under this rule, it must establish,

inter alia, that the falsity of the evidence was

``knowing and intentional'' or in reckless disregard

for the truth. Accord Franks v. Delaware, 438 U.S. 154

(1978).''

b. M.R.E. 506(e). The Analysis accompanying M.R.E.

506(e) is amended by inserting the following at the end

thereof:

``1995 Amendment: It is the intent of the Committee

that if classified information arises during a

proceeding under Rule 506, the procedures of Rule 505

will be used.

The new subsection (e) was formerly subsection (f).

The matters in the former subsection (f) were adopted

without change. The former subsection (e) was amended

and redesignated as subsection (f) (see below).''

c. M.R.E. 506(f). The Analysis accompanying M.R.E.

506(f) is amended by inserting the following at the end

thereof:

``1995 Amendment. See generally Rule 505(f) and its

accompanying Analysis. Note that unlike Rule 505(f),

however, Rule 506(f) does not require a finding that

failure to disclose the information in question ``would

materially prejudice a substantial right of the

accused.'' Dismissal is not required when the relevant

information is not disclosed in a ``reasonable period

of time.''

Subsection (f) was formerly subsection (e). The

subsection was amended to cover action after a defense

motion for discovery, rather than action after referral

of charges. The qualification that the government claim

of privilege pertains to information ``that apparently

contains evidence that is relevant and necessary to an

element of the offense or a legally cognizable defense

and is otherwise admissible in evidence in a court-

martial proceeding'' was deleted as unnecessary. Action

by the convening authority is required if, after

referral, the defense moves for disclosure and the

Government claims the information is privileged from

disclosure.''

d. M.R.E. 506(h). The Analysis accompanying M.R.E.

506(h) is amended by inserting the following at the end

thereof:

``1995 Amendment: Subsection (h) was amended to

provide that government information may not be

disclosed by the accused unless authorized by the

military judge.'' [[Page 26663]]

e. M.R.E. 506(i). The Analysis accompanying M.R.E.

506(i) is amended by inserting the following at the end

thereof:

``1995 Amendment: Subsection (i) was amended to

clarify the procedure for in camera proceedings. The

definition in subsection (i)(1) was amended to conform

to the definition of in camera proceedings in M.R.E.

505(i)(1). Subsections (i)(2) and (i)(3) were

unchanged. Subsection (i)(4)(B), redesignated as

(i)(4)(C), was amended to include admissible evidence

relevant to punishment of the accused, consistent with

Brady v. Maryland, 373 U.S. 83, 87 (1963). Subsection

(i)(4)(C) was redesignated as (i)(4)(D), but was

otherwise unchanged. The amended procedures provide for

full disclosure of the government information in

question to the accused for purposes of litigating the

admissibility of the information in the protected

environment of the in camera proceeding; i.e., the

Article 39(a) session is closed to the public and

neither side may disclose the information outside the

in camera proceeding until the military judge admits

the information as evidence in the trial. Under

subsection (i)(4)(E), the military judge may authorize

alternatives to disclosure, consistent with a military

judge's authority concerning classified information

under M.R.E. 505. Subsection (i)(4)(F) allows the

Government to determine whether the information

ultimately will be disclosed to the accused. However,

the Government's continued objection to disclosure may

be at the price of letting the accused go free, in that

subsection (i)(4)(F) adopts the sanctions available to

the military judge under M.R.E. 505(i)(4)(E). See U.S.

v. Reynolds, 345 U.S. 1, 12 (1953).''

f. M.R.E. 506(j). The Analysis accompanying M.R.E.

506(j) is amended by inserting the following at the end

thereof:

``1995 Amendment: Subsection (j) was added to

recognize the Government's right to appeal certain

rulings and orders. See R.C.M. 908. The former

subsection (j) was redesignated as subsection (k). The

subsection speaks only to government appeals; the

defense still may seek extraordinary relief through

interlocutory appeal of the military judge's orders and

rulings. See generally, 28 U.S.C. Sec. 1651(a); Waller

v. Swift, 30 M.J. 139 (C.M.A. 1990); Dettinger v.

United States, 7 M.J. 216 (C.M.A. 1979).''

g. M.R.E. 506(j) and (k). The Analyses accompanying

M.R.E. 506(j) and M.R.E. 506(k) are redesignated as

subdivisions (k) and (l), respectively.

Changes to the Discussion Accompanying the Manual for

Courts-Martial, United States, 1984.

A. The Discussion accompanying Part I., Preamble,

paragraph. 4., is amended by inserting the following at

the end thereof:

``The 1995 amendment to paragraph 4 of the Preamble

is intended to eliminate the practice of identifying

the Manual for Courts-Martial, United States, by a

particular year. As long as the Manual was published in

its entirety sporadically (e.g., 1917, 1921, 1928,

1949, 1951, 1969 and 1984), with amendments to it

published piecemeal, it was logical to identify the

Manual by the calendar year of publication, with

periodic amendments identified as ``Changes'' to the

Manual. The more frequent publication of a new edition

of the Manual, however, means that it is more

appropriately identified by the calendar year of

edition. Amendments made in a particular calendar year

will be identified by publishing the relevant Executive

order containing those amendments in its entirety in a

Manual appendix.''

B. Subsection 2(B)(ii) of the Discussion following

R.C.M. 202(a) is amended to read as follows:

``(ii) Effect of discharge and reenlistment. For

offenses occurring on or after 23 October 1992, under

the 1992 Amendment to Article 3(a), a person who

reenlists following a discharge may be tried for

offenses committed during the earlier term of service.

For offenses occurring prior to 23 October 1992, a

person who reenlists following a discharge may be tried

for offenses committed during the earlier term of

service only if the offense was punishable by

confinement for five (5) years or more and could not be

tried [[Page 26664]] in the courts of the United States

or of a State, a Possession, a Territory, or the

District of Columbia. However, see (iii)(a) below.''

C. Subsections 2(B)(iii) and 2(B)(iii)(a) of the

Discussion following R.C.M. 202(a) are amended to read

as follows:

``(iii) Exceptions. There are several exceptions to

the general principle that court-martial jurisdiction

terminates on discharge or its equivalent.

(a) A person who was subject to the code at the

time an offense was committed may be tried by court-

martial for that offense despite a later discharge or

other termination of that status if:

(1) For offenses occurring on or after 23 October

1992, the person is, at the time of the court-martial,

subject to the code, by reentry into the armed forces

or otherwise. See Article 3(a) as amended by the

National Defense Authorization Act for Fiscal Year

1993, Pub. L. No. 102-484, 106 Stat. 2315, 2505 (1992);

(2) For offenses occurring before 23 October

1992,

(A) The offense is one for which a court-martial

may adjudge confinement for five (5) or more years;

(B) The person cannot be tried in the courts of

the United States or of a State, a Possession, a

Territory, or the District of Columbia; and

(C) The person is, at the time of the court-

martial, subject to the code, by reentry into the armed

forces or otherwise. See Article 3(a) prior to the 1992

amendment.''

D. The Discussion following R.C.M. 203 is amended to

read as follows:

``(a) In general. Courts-martial have power to try

any offense under the code except when prohibited from

so doing by the Constitution. The rule enunciated in

Solorio v. United States, 483 U.S. 435 (1987) is that

jurisdiction of courts-martial depends solely on the

accused's status as a person subject to the Uniform

Code of Military Justice, and not on the ``service

connection'' of the offense charged.

(b) Pleading and proof. Normally, the inclusion of

the accused's rank or grade will be sufficient to plead

the service status of the accused. Ordinarily, no

allegation of the accused's armed force or unit is

necessary for military members on active duty. See

R.C.M. 307 regarding required specificity of

pleadings.''

E. Subparagraph (F) of the Discussion following R.C.M.

307(c)(3) is amended to read as follows:

``(F) Subject-matter jurisdiction allegations.

Pleading the accused's rank or grade along with the

proper elements of the offense normally will be

sufficient to establish subject-matter jurisdiction.''

F. The first two sentences of the Discussion following

R.C.M. 810(d)(1) are amended to read as follows:

``In approving a sentence not in excess of one more

severe than one approved previously, a convening

authority is not limited to approving the same or

lesser amount of the same type of punishment formerly

approved. An appropriate sentence on a retried or

reheard offense should be adjudged without regard to

any credit to which the accused may be entitled.''

G. The following Discussion is inserted after R.C.M.

902(d)(2):

``Nothing in this rule prohibits the military judge

from reasonably limiting the presentation of evidence,

the scope of questioning, and argument on the subject

so as to ensure that only matters material to the

central issue of the military judge's possible

disqualification are considered, thereby, preventing

the proceedings from becoming a forum for unfounded

opinion, speculation or innuendo.''

H. The Discussion following R.C.M. 1003(b)(6) is

amended to read as follows:

``Restriction does not exempt the person on whom

it is imposed from any military duty. Restriction and

hard labor without confinement may be adjudged in the

same case provided they do not exceed the maximum

[[Page 26665]] limits for each. See subsection

(c)(1)(A)(ii) of this rule. The sentence adjudged

should specify the limits of the restriction.''

I. The Discussion following R.C.M. 1105(b)(4) is

amended by adding the following sentence at the end

thereof:

``If the sentencing authority makes a clemency

recommendation in conjunction with the announced

sentence, see R.C.M. 1106(d)(3)(B).''

J. The following Discussion is inserted after R.C.M.

1106(d)(3)(B):

``The recommendation required by this rule need

not include information regarding other recommendations

for clemency. See R.C.M. 1105(b)(5), which pertains to

clemency recommendations that may be submitted by the

accused to the convening authority.''

K. The Discussion following R.C.M. 1107(d)(1) is

amended to read as follows:

``A sentence adjudged by a court-martial may be

approved if it was within the jurisdiction of the

court-martial to adjudge (see R.C.M. 201(f)) and did

not exceed the maximum limits prescribed in Part IV and

Chapter X of this Part for the offense(s) of which the

accused legally has been found guilty.

When mitigating forfeitures, the duration and

amounts of forfeiture may be changed as long as the

total amount forfeited is not increased and neither the

amount nor duration of the forfeiture exceeds the

jurisdiction of the court-martial. When mitigating

confinement or hard labor without confinement, the

convening authority should use the equivalencies at

R.C.M. 1003(b)(6) and (7), as appropriate. One form of

punishment may be changed to a less severe punishment

of a different nature, as long as the changed

punishment is one that the court-martial could have

adjudged. For example, a bad-conduct discharge adjudged

by a special court-martial could be changed to

confinement for 6 months (but not vice versa). A

pretrial agreement may also affect what punishments may

be changed by the convening authority.

See also R.C.M. 810(d) concerning sentence

limitations upon a rehearing or new or other trial.''

L. The Discussion following R.C.M. 1107(d)(2) is

amended by adding the following sentence at the end

thereof:

``Since court-martial forfeitures constitute a

loss of entitlement of the pay concerned, they take

precedence over all debts.''

M. The Discussion following R.C.M. 1107(d)(3) is

amended to read as follows:

``The convening authority's decision to postpone

service of a court-martial sentence to confinement

normally should be reflected in the action.''

N. The following Discussion is inserted after R.C.M.

1107(f)(2):

``For purposes of this rule, a record is

considered to have been forwarded for review when the

convening authority has either delivered it in person

or has entrusted it for delivery to a third party over

whom the convening authority exercises no lawful

control (e.g., the United States Postal Service).''

O. The following Discussion is inserted after R.C.M.

1113(d)(2)(A)(iii):

``The convening authority's decision to postpone

service of a court-martial sentence to confinement

normally should be reflected in the action.''

P. The Discussion following R.C.M. 1201(b)(1) is

amended to read as follows:

``A case forwarded to a Court of Military Review

under this subsection is subject to review by the Court

of Military Appeals upon petition by the accused under

Article 67(a)(3) or when certified by the Judge

Advocate General under Article 67(a)(2).''

Q. The Discussion following R.C.M. 1301(d)(1) is

amended to read as follows:

``The maximum penalty which can be adjudged in a

summary court-martial is confinement for 30 days,

forfeiture of two-thirds pay per month for one month,

and reduction to the lowest pay grade. See subsection

(2) below for additional limits on enlisted persons

serving in pay grades above the fourth enlisted pay

grade.

A summary court-martial may not suspend all or part

of a sentence, although the summary court-martial may

recommend to the convening au [[Page 26666]] thority

that all or part of a sentence be suspended. If a

sentence includes both reduction in grade and

forfeitures, the maximum forfeiture is calculated at

the reduced pay grade. See also R.C.M. 1003 concerning

other punishments which may be adjudged, the effects of

certain types of punishment, and combination of certain

types of punishment. The summary court-martial should

ascertain the effect of Article 58a in that armed

force.''

Changes to the Maximum Punishment Chart of the Manual

for Courts-Martial, United States, 1984.

Appendix 12, the Maximum Punishment Chart, is amended

by adding after Art. 134 (Seizure, destruction,

removal, or disposal of property to prevent) the

following:

``Self-injury without intent to avoid service In

time of war, or while receiving special pay under

37 U.S.C. 310.... DD 5 yrs. Total

Other................. DD 2 yrs. Total''

[FR Doc. 95-12285

Filed 5-15-95; 2:56 pm]

Billing code 5000-04-P