Manual for Courts-Martial

DEPARTMENT OF DEFENSE

Office of the Secretary

Manual for Courts-Martial

AGENCY: Joint Service Committee on Military Justice (JSC).

ACTION: Revised notice of proposed amendments.

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SUMMARY: The Department of Defense is considering recommending changes

to the Manual for Courts-Martial, United States (1995 Edition). On 4

April 1996, the 1996 draft annual review, as required by the Manual for

Courts-Martial and DoD Directive 5500.17, ``Review of the Manual for

Courts-Martial,'' January 23, 1985, was published in the Federal

Register, 61 Fed. Reg. 15044-53 (1996). That publication inadvertently

published some of the text out of order. This publication is intended

to supplement that earlier publication and to extend the public comment

period to 25 June 1996.

The full text of the effected sections follows:

R.C.M. 908(a) is amended to read as follows:

(a) In general. In a trial by a court-martial over which a military

judge presides and in which a punitive discharge may be adjudged, the

United States may appeal an order or ruling that terminates the

proceedings with respect to a charge or specification, or excludes

evidence that is substantial proof of a fact material in the

proceedings, or directs the disclosure of classified information, or

that imposes sanctions for nondisclosure of classified information. The

United States may also appeal a refusal by the military judge to issue

a protective order sought by the United States to prevent the

disclosure of classified information or to enforce such an order that

has previously been issued by the appropriate authority. However, the

United States may not appeal an order or ruling that is, or amounts to,

a finding of not guilty with respect to the charge or specification.

The analysis accompanying R.C.M. 908 is amended by inserting the

following at the end thereof:

1996 Amendment: This change resulted from Congress' amendment to

Article 621 in the National Defense Authorization Act for Fiscal Year

1996, Pub. L. No. 104-106 (1996). It permits interlocutory appeal of

rulings disclosing classified information.

R.C.M. 909 is amended to read as follows:

(a) In general. No person may be brought to trial by court-martial

if that person is presently suffering from a mental disease or defect

rendering him or her mentally incompetent to the extent that he or she

is unable to understand the nature of the proceedings against that

person or to conduct or cooperate intelligently in the defense of the

case.

(b) Presumption of capacity. A person is presumed to have the

capacity to stand trial unless the contrary is established.

(c) Determination before referral. If an inquiry pursuant to R.C.M.

706 conducted before referral concludes that an accused is suffering

from a mental disease or defect that renders him or her mentally

incompetent to stand trial, and the general court-martial convening

authority concurs with that conclusion, that accused shall be committed

by the general court-martial convening authority to the custody of the

U.S. Attorney General. If the general court-martial convening authority

does not concur, that authority may refer the charges to trial.

(d) Determination after referral. After referral, the military

judge may conduct a hearing to determine the mental capacity of the

accused. If an inquiry pursuant to R.C.M. 706 conducted after referral

but before trial concludes that an accused is suffering from a mental

disease or defect that renders him or her mentally incompetent to stand

trial, the military judge shall conduct a hearing to determine the

mental capacity of the accused. Any such hearing shall be conducted in

accordance with paragraph (e) of this rule.

(e) Incompetency determination hearing.

(1) Nature of issue. The mental capacity of the accused is an

interlocutory question of fact.

(2) Standard. Trial may proceed unless it is established by a

preponderance of the evidence that the accused is presently suffering

from a mental disease or defect rendering him or her mentally

incompetent to the extent that he or she is unable to understand the

nature of the proceedings against the accused or to conduct or

cooperate intelligently in the defense of the case. In making this

determination, the military judge is not bound by the rules of evidence

except with respect to privileges.

(3) If the military judge finds the accused is incompetent to stand

trial, the judge shall report this finding to the general court-martial

convening authority, who shall commit the accused to the custody of the

Attorney General.

(f) Hospitalization of the accused. An accused who is found

incompetent to stand trial under this rule shall be hospitalized by the

Attorney General as provided in section 4241(d) of title 18, United

States Code. If notified that the accused has recovered to such an

extent that he or she is able to understand the nature of the

proceedings and to conduct or cooperate intelligently in the defense of

the case, then the general court-martial convening authority shall

promptly take custody of the accused. If, at the end of the period of

hospitalization, the accused's mental condition has not so improved,

action shall be taken in accordance with section 4246 of title 18.

(g) Excludable delay. All periods of commitment shall be excluded

as provided by R.C.M. 707(c). The 120-day time period under R.C.M. 707

shall begin anew on the date the general court-martial convening

authority takes custody of the accused at the end of any period of

commitment.

The discussion following R.C.M. 909(f) is amended by adding the

following:

[[Page 18124]]

Under section 4241(d) of title 18, the initial period of

hospitalization for an incompetent accused shall not exceed four

months. However, in determining whether there is a substantial

probability the accused will attain the capacity to permit the trial to

proceed in the foreseeable future, the accused may be hospitalized for

an additional reasonable period of time.

This additional period of time ends either when the accused's

mental condition is improved so that trial may proceed, or when the

pending charges against the accused are dismissed. If charges are

dismissed solely due to the accused's mental condition, the accused is

subject to hospitalization as provided in section 4241 of title 18.

The analysis accompanying R.C.M. 909 is amended by inserting the

following at the end thereof:

1996 Amendment: The rule was changed to provide for the

hospitalization of an incompetent accused after the enactment of

Article 76b, UCMJ, in the National Defense Authorization Act for Fiscal

Year 1996, Pub. L. No. 104-106 (1996).

ADDRESSES: Comments on the proposed changes should be sent to Maj. Paul

Holden, Office of the Judge Advocate General, Criminal Law Division,

2200 Army Pentagon, Washington, D.C. 20310-2200.

DATES: Comments on the proposed changes must be received no later than

25 June 1996 for consideration by the Joint Service Committee on

Military Justice.

FOR FURTHER INFORMATION CONTACT:

LT J. Russell McFarlane, JAGC, UNSR, Executive Secretary, Joint Service

Committee on Military Justice, Office of the Judge Advocate General,

Criminal Law Division, Building 111, Washington Navy Yard, Washington,

D.C. 20374-1111; (202) 433-5895.

Dated: April 18, 1996.

Patricia L. Toppings,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 96-9993 Filed 4-23-96; 8:45 am]

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