Manual for Courts-Martial

DEPARTMENT OF DEFENSE

Office of the Secretary

Manual for Courts-Martial

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

ACTION: 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 ed.) [MCM]. The

proposed changes are the 1997 draft annual review required by the MCM

and DoD Directive 5500.17, ``Role and Responsibilities of the Joint

Service Committee (JSC) on Military Justice,'' May 8, 1996. With one

exception, the proposed changes concern the rules of procedure and

evidence applicable in trials by courts-martial. One proposed change

adds an offense to Part IV of the MCM. More specifically, the proposed

changes would: (1) Delete the requirement that judges be on ``active

duty'' at the time of trial; (2) permit the referral and trial of

additional charges at any time until entry of pleas; (3) set forth

rules for taking the testimony of children by remote closed-circuit

television; (4) clarify that ``hate motivation'' can be considered as

aggravation evidence in sentencing; (5) eliminate the punishment of

loss of numbers; (6) add the youth of the victim as an aggravating

factor in capital cases; (7) clarify the length of time during which

sentences may be suspended; (8) clarify the limitations on post-trial

contact with court members; (9) recognize a limited, qualified

psychotherapist-patient privilege; and (10) recognize the offense of

reckless endangerment.

The proposed changes have not been coordinated within the

Department of Defense under DoD Directive 5500.1, ``Preparation and

Processing of Legislation, Executive Orders, Proclamations, and Reports

and Comments Thereon,'' May 21, 1964, and do not constitute the

official position of the Department of Defense, the Military

Departments, or any other government agency.

This notice is provided in accordance with DoD Directive 5500.17,

``Role and Responsibilities of the Joint Service Committee (JSC) on

Military Justice,'' May 8, 1996. This notice is intended only to

improve the internal management of the Federal Government. It is not

intended to create any right or benefit, substantive or procedural,

enforceable at law by any party against the United States, its

agencies, its officers, or any person.

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

July 20, 1997 for consideration by the JSC.

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

P. Holden, Jr., U.S. Army, Office of the Judge Advocate General,

Criminal Law Division, 2200 Army Pentagon, Washington, DC, 20310-2200.

FOR FURTHER INFORMATION CONTACT: LTC Paul P. Holden, Jr., US Army,

Office of the Judge Advocate General, Criminal Law Division, 2200 Army

Pentagon, Washington, DC, 20310-2200; 703-695-1891; FAX 703-693-5086.

Manual for Courts-Martial Proposed Amendments

The full text of the affected sections follows:

R.C.M. 502(c) is amended by deleting the words ``on active duty''

in the second line of the rule.

The analysis accompanying R.C.M. 502(c) is amended by adding the

following:

199__ Amendment: R.C.M. 502(c) was amended to delete the

requirement that military judges be ``on active duty'' to enable

Reserve Component judges to conduct trials during periods of inactive

duty for training (IDT/IADT) and inactive duty training travel (IATT).

The active duty requirement does not appear in Article 26, UCMJ which

prescribes the qualifications for military judges. It appears to be a

vestigial requirement from paragraph 4e of the 1951 and 1969 MCM.

Neither the current MCM nor its predecessors provide an explanation for

this additional requirement. It was deleted to enhance efficiency in

the military justice system.

R.C.M. 601(e)(2) is amended by deleting the words ``arraignment''

and substituting the words ``the entry of pleas'', in the second

sentence, and by deleting the words ``arraignment of the accused upon

charges'' and inserting the words ``the entry of pleas'' in the last

sentence.

The analysis accompanying R.C.M. 601(e)(2) is amended by adding the

following:

199__ Amendment: R.C.M. 601(e)(2) was amended to permit the adding

of charges until the entry of pleas in general and special courts-

martial without the consent of the accused, provided that all necessary

procedural requirements concerning the additional charges have been

complied with. Prior to this amendment, arraignment had always been the

point of demarcation, after which new charges could not be added

without the accused's consent. United States v. Davis, 11 USCMA 407, 29

C.M.R. 223 (1960).

[[Page 24641]]

In the Federal civilian system, arraignment was the preliminary

stage where the accused was informed of the indictment and pled to it,

thereby formulating the issues to be tried. Hamilton v. Alabama, 368

U.S. 52 (1961). In the military, arraignment symbolized formal notice

to the accused and often was followed closely by pleas. Id. However,

arraignment has become the event whereby the court-martial is formally

placed under the cognizance of the military judge, and the entry of

pleas is oftentimes now deferred. Precluding the addition of charges at

arraignment no longer serves a useful purpose.

This amendment extends the period of time during which charges can

be served on the accused at courts-martial to the taking of pleas.

Provided that procedural safeguards with respect to the additional

charges are accorded, (i.e. Article 32 hearing, or the 3/5 day

statutory waiting period, voir dire of the military judge, and

challenge of the qualifications of counsel), the original purpose of

the rule is fulfilled.

R.C.M. 804 is amended by redesignating the current subsection (c)

as subsection (d) and inserting the following as subsection (c)

(c) Absence for Limited Purpose of Child Testimony

(1) Election by accused. Following a determination by the military

judge in a child abuse case that remote testimony of a child is

appropriate pursuant to M.R.E. 611(d)(2), the accused may elect to

voluntarily absent himself from the courtroom in order to preclude the

use of procedures described in R.C.M. 914A.

(2) Procedure. The accused's absence will be conditional upon his

being able to view the witness' testimony from a remote location. A

two-way closed circuit television system will be used to transmit the

child's testimony from the courtroom to the accused's location. The

accused will also be provided contemporaneous audio communication with

his counsel, or recesses will be granted as necessary in order to allow

the accused to confer with counsel. The procedures described herein

will be employed unless the accused has made a knowing and affirmative

waiver of these procedures.

(3) Effect on accused's rights generally. Exercise by the accused

of the procedures under subsection (c)(2) will not otherwise affect the

accused's right to be present at the remainder of the trial in

accordance with this rule.

The analysis accompanying R.C.M. 804 is amended by adding the

following:

199__ Amendment: The amendment provides for two-way closed circuit

television to transmit the child's testimony from the courtroom to the

accused's location. The use of two-way television, to some degree, may

defeat the purpose of these alternative procedures, which is to avoid

trauma to the victim who must view his or her alleged abuser. In such

cases, the judge has discretion to direct one-way television

communication. The use of one-way television was approved by the

Supreme Court in Maryland v. Craig, 497 U.S. 836 (1990). This amendment

also gives the accused the election to absent himself from the

courtroom to prevent remote testimony. Such a provision gives the

accused a greater role in determining how this issue will be resolved.

R.C.M. 914A is created as follows:

Rule 914A. Use of Remote Live Testimony in Child Abuse Cases

(a) General procedures. A child witness in a case involving abuse

shall be allowed to testify out of the presence of the accused after

appropriate findings have been entered in accordance with M.R.E.

611(d)(2). The procedure used to take such testimony will be determined

by the military judge based upon the exigencies of the situation.

However, such testimony should normally be taken via a two-way closed

circuit television system. When a television system is employed, the

following procedures will be observed:

(1) The witness will testify from a closed location outside the

courtroom;

(2) The only persons present at the remote location will be the

witness, counsel for each side (not including an accused pro se),

equipment operators, and other persons, such as an attendant for the

child, whose presence is deemed necessary by the military judge;

(3) The military judge, the accused, members, the court reporter,

and all other persons viewing or participating in the trial will remain

in the courtroom;

(4) Sufficient monitors will be placed in the courtroom to allow

viewing of the testimony by both the accused and the fact finder;

(5) The voice of the military judge will be transmitted into the

remote location to allow control of the proceedings;

(6) The accused will be permitted audio contact with his counsel,

or the court will recess as necessary to provide the accused an

opportunity to confer with counsel.

(b) Prohibitions. The procedures described above will not be used

where the accused elects to absent himself from the courtroom pursuant

to R.C.M. 804(c).

The analysis accompanying R.C.M. 914A is as follows:

199__Amendment: This rule allows the military judge to determine

what procedure to use when taking testimony under Mil. R. Evid.

611(d)(2). It states that normally such testimony should be taken via a

two-way closed circuit television system. The rule further prescribes

the procedures to be used if a television system is employed. The use

of two-way television, to some degree, may defeat the purpose of these

alternative procedures, which is to avoid trauma to the victim who must

view his or her alleged abuser. In such cases, the judge has discretion

to direct one-way television communication. The use of one-way

television was approved by the Supreme Court in Maryland v. Craig, 497

U.S. 836 (1990). This amendment also gives the accused an election to

absent himself from the courtroom to prevent remote testimony. Such a

provision gives the accused a greater role in determining how this

issue will be resolved.

Military Rule of Evidence 611 is amended by adding the following

subsection:

(d) Remote examination of child witness.

(1) In a case involving abuse of a child under the age of 16, the

military judge shall, subject to the requirements of section (2) of

this rule, allow the child to testify from an area outside the

courtroom as prescribed in R.C.M. 914A.

(2) Remote examination will be used only where the military judge

makes a finding on the record, following expert testimony, that either:

(A) The child witness is likely to suffer substantial trauma if

made to testify in the presence of the accused; or

(B) The prosecution will be unable to elicit testimony from the

child witness in the presence of the accused.

(3) Remote examination of a child witness will not be utilized

where the accused elects to absent himself from the courtroom in

accordance with R.C.M. 804(c).

The analysis accompanying Mil. R. Evid. 611 is amended by adding

the following:

199__Amendment: This amendment to Mil. R. Evid. 611 gives

substantive guidance to military judges regarding the use of

alternative examination methods for child abuse victims. The use of

two-way television, to some degree, may defeat the purpose of these

alternative procedures; which is to avoid trauma to the victim who must

view his or her abuser. In such cases, the military judge has

discretion to

[[Page 24642]]

direct one-way communication. The use of one-way television was

approved by the Supreme Court in Maryland v. Craig, 497 U.S. 836

(1990). This amendment also gives the accused an election to absent

himself from the courtroom to prevent remote testimony. Such a

provision gives the accused a greater role in determining how this

issue will be resolved.

Rule for Courts-Martial 1001(b)(4), regarding the introduction of

evidence in aggravation during the presentencing procedure, is amended

by adding between the first and second sentences, the following:

Evidence in aggravation includes, but is not limited to, evidence

of financial, social, psychological, and medical impact on or cost to

any person or entity who was the victim of an offense committed by the

accused and evidence of significant adverse impact on the mission,

discipline, or efficiency of the command directly and immediately

resulting from the accused's offense. In addition, evidence in

aggravation may include evidence that the accused intentionally

selected any victim or any property as the object of the offense

because of the actual or perceived race, color, religion, national

origin, ethnicity, gender, disability, or sexual orientation of any

person.

The Discussion to R.C.M. 1001(b)(4) is amended by striking the

first paragraph thereof.

The analysis to R.C.M. 1001(b)(4) is amended by adding the

following:

199__Amendment: R.C.M. 1001(b)(4) was amended by elevating to the

Rule language that heretofore appeared in the Discussion to the Rule.

The Rule was further amended to recognize that evidence that the

offense was a ``hate crime'' may also be presented to the sentencing

authority. The additional ``hate crime'' language was derived in part

from Sec. 3A1.1 of the Federal Sentencing Guidelines, in which hate

crime motivation results in an upward adjustment in the level of the

offense for which the defendant is sentenced. Courts-martial sentences

are not awarded upon the basis of guidelines, such as the Federal

Sentencing Guidelines, but rather upon broad considerations of the

needs of the service and the accused and on the premise that each

sentence is individually tailored to the offender and offense. The

upward adjustment used in the Federal Sentencing Guidelines does not

directly translate to the court-martial presentencing procedure.

Therefore, in order to adapt this concept to the court-martial process,

this amendment was made to recognize that ``hate crime'' motivation is

admissible in the court-martial presentencing procedure. This amendment

also differs from the Federal Sentencing Guideline in that the

amendment does not specify the burden of proof required regarding

evidence of ``hate crime'' motivation. No burden of proof is

customarily specified regarding aggravating evidence admitted in the

presentencing procedure, with the notable exception of aggravating

factors under R.C.M. 1004 in capital cases.

R.C.M. 1003 is amended by deleting ``(4) Loss of numbers, lineal

position, or seniority. These punishments are authorized only in cases

of Navy, Marine Corps, and Coast Guard officers;'' by deleting the

``Discussion'' thereto, and by correcting subsequent numbered

paragraphs to reflect this deletion.

The analysis accompanying R.C.M. 1003 is amended by adding the

following:

199__Amendment: Although loss of numbers had the effect of lowering

precedence for some purposes, e.g., quarters priority, board and court

seniority, and actual date of promotion, loss of numbers did not affect

the officer's original position for purposes of consideration for

retention or promotion. Accordingly, this punishment was deleted

because of its negligible consequences and the misconception that it

was a meaningful punishment.

Appendix 11 of the MCM is amended by deleting ``Loss of numbers,

Etc., paragraphs (6) and (7) thereunder, by correcting subsequent

numbered paragraphs to reflect this deletion, and deleting the notation

at the end of Appendix 11 which states ``Numbers 6 and 7 apply only in

the Navy, Marine Corps, and Coast Guard.'' Rule for Courts-Martial

1004(c)(7) is amended by adding at the end thereof, the following

aggravating factor applicable in the case of a violation of Article

118(1): ``(K) The victim of the murder was 14 years of age or

younger.''

The Analysis to R.C.M. 1004 is amended by adding the following:

199__Amendment: R.C.M. 1004(c)(7)(K) was added to afford greater

protection to victims who are especially vulnerable due to their age.

R.C.M. 1108(d) is amended by adding after the second sentence the

following:

A period of suspension equal to the time served in confinement,

plus 2 years thereafter, or a period of suspension of 5 years from the

date of convening authority's action, whichever is greater, shall not

be deemed ``unreasonably long'' for a sentence adjudged by a general

court-martial. A period of suspension of 2 years from the date of

convening authority's action shall not be deemed ``unreasonably long''

for a sentence adjudged by a special court-martial. Notwithstanding the

foregoing, a period of suspension agreed to by the parties in a

pretrial agreement (R.C.M. 705) ordinarily shall not be deemed

``unreasonably long.''

The analysis accompanying R.C.M. 1108(d) is amended by adding the

following:

199__Amendment: This amendment clarifies the term ``not

unreasonably long'' by defining the maximum period of suspension which

is reasonable and lawful, thereby assisting convening authorities,

those who advise them, and courts as to the maximum length of time the

unexecuted portion of a sentence may be suspended. Thus, convening

authorities are guided in fixing a period of suspension which bears a

rational relationship to the severity of the sentence adjudged and

approved. This amendment does not address any other term of suspension

than time. Further, the amendment will most often be applied to

suspended, unexecuted confinement. A convening authority may, however,

in the exercise of discretionary powers, suspend all or any part of an

adjudged sentence, and may impose reasonable and lawful conditions upon

the accused as provision of that suspension. UCMJ, Arts. 60, 71, 10

U.S.C.A. Secs. 860, 871 (1994); United States v. Cowan, 34 M.J. 258

(C.M.A. 1992). The service Secretaries may further restrict the periods

of suspension.

Rule for Court-Martial 1012 is created as follows:

Rule 1012. Interviewing Members Following Adjournment

Except as provided in R.C.M. 1105(b)(4), following adjournment, no

attorney or any party to a court-martial shall themselves or through

any investigator or other person acting for them, interview, examine,

or question any member of a court-martial, after the member has been

excused from the court-martial, about any matter pertaining to the

court-martial, except at a session held under Article 39(a). Any such

session shall be limited to inquiring into whether extraneous

prejudicial information was improperly brought to the attention of the

members of the court-martial, whether any outside influence was

improperly brought to bear upon any member, or whether there was

unlawful command influence.

The analysis accompanying R.C.M. 1012 is created as follows:

199__Amendment: Prior to adjournment, contacts with court-

[[Page 24643]]

members are already adequately regulated by the military judge. This

rule was added to address post-trial contacts with members. It prevents

anyone from disturbing the sanctity of deliberations by questioning

members about matters associated with their duties as members. Such

questioning results in lessened public confidence in the court-martial

system and intrudes into a process that must remain secret in order to

grant court members the independence and discretion needed to arrive at

a verdict free from fear of public or private criticism or retribution.

See United States v. Turner, 42 M.J. 783 (N.M.Ct.Crim.App. 1995);

United States v. Thomas, 39 M.J. 626 (N.M.C.M.R. 1993). Also, this

amendment brings the military practice in line with most Federal

courts. See United States v. Hooshmand, 931 F.2d. 725, 736-37 (11th

Cir. 1991); United States v. Davila, 704 F.2d. 749, 753-54 (5th Cir.

1983).

Military Rule of Evidence 501(d) is amended to read as follows:

(d) Except as provided in Rule 513, information not otherwise

privileged does not become privileged on the basis that it was acquired

by a military or civilian health care provider acting in a professional

capacity.

Military Rules of Evidence 513 is created as follows

Rule 513. Psychotherapist-Patient Privilege

(a) General rule of privilege. A patient, as that term is defined

in this rule, has a privilege to refuse to disclose and to prevent any

other person from disclosing a confidential communication made by the

patient to a psychotherapist or an assistant to a psychotherapist, as

those terms are defined in this rule, if such communication was made

for the purpose of facilitating diagnosis or treatment of the patient's

mental or emotional condition.

(b) Definitions. As used in this rule:

(1) A ``patient'' is a person who consults with or is examined or

interviewed by a psychotherapist, but the term does not include a

person who, at the time of such consultation, examination or interview,

is subject to the Uniform Code of Military Justice under Article

2(a)(1), (2), (3), (7), (8), (9), or (10).

(2) A ``psychotherapist'' is a psychiatrist or psychologist who is

licensed or certified in any state, territory, the District of Columbia

or Puerto Rico to perform professional services as such and, if such

person is a member of, employed by, or serving under contract with the

armed forces, who holds credentials to provide such services from any

military health care facility, or is a person reasonably believed by

the patient to have such qualifications.

(3) An ``assistant to a psychotherapist'' is a person employed by

or assigned to assist a psychotherapist in providing professional

services, or is reasonably believed by the patient to be such.

(4) A communication is ``confidential'' if not intended to be

disclosed to third persons other than those to whom disclosure is in

furtherance of the rendition of professional services to the patient or

those reasonably necessary for the transmission of the communication.

(5) ``Evidence of a patient's records or communications'' is

testimony of a psychiatrist, psychologist, or assistant to the same, or

patient records that pertain to communications by a patient to a

psychiatrist, psychologist, or assistant to the same for the purposes

of diagnosis or treatment of the patient's mental or emotional

condition.

(c) Who may claim the privilege. The privilege may be claimed by

the patient or the guardian or conservator of the patient. The

psychotherapist or assistant to a psychotherapist who received the

communication may claim the privilege on behalf of the patient. The

authority of such a psychotherapist or assistant to so assert the

privilege is presumed in the absence of evidence to the contrary.

(d) Exceptions. There is no privilege under this rule under the

following circumstances:

(1) Death of patient. The patient is dead;

(2) Crime or fraud. If the communication clearly contemplated the

future commission of a fraud or crime or if the services of the

psychotherapist were sought or obtained to enable or aid anyone to

commit or plan to commit what the patient knew or reasonably should

have known to be a crime or fraud;

(3) Spouse abuse or child abuse or neglect. When the communication

is evidence of spouse abuse, or child abuse or neglect;

(4) Mandatory reports. When a federal law, state law, or military

regulation imposes a duty to report information contained in a

communication;

(5) Patient is dangerous to self or others. When a psychotherapist

or assistant to a psychotherapist has a reasonable belief that a

patient's mental or emotional condition makes the patient a danger to

any person, including the patient, or to the property of another

person;

(6) Military necessity. When necessary to ensure the safety and

security of military personnel, military dependents, military property,

classified information, or the accomplishment of a military mission.

(e) Procedure to determine admissibility of patient records or

communications:

(1) In any case in which the production or admission of records or

communications of a patient other than the accused is a matter in

dispute, a party may seek an interlocutory ruling by the military

judge. In order to obtain such a ruling, the party shall:

(A) file a written motion at least 5 days prior to entry of pleas

specifically describing the evidence and stating the purpose for which

it is sought or offered, or objected to, unless the military judge, for

good cause shown, requires a different time for filing or permits

filing during trial; and

(B) serve the motion on the opposing party, the military judge and,

if practicable, notify the patient or the patient's guardian or

representative of the filing of the motion and of the opportunity to be

heard as set forth in subparagraph (e)(2).

(2) Before ordering the production or admission of evidence of a

patient's records or communications, the military judge shall conduct a

hearing. Upon the motion of counsel for either party and upon good

cause shown, the military judge may order the hearing closed. At the

hearing, the parties may call witnesses, including the patient, and

offer other relevant evidence. The patient will be afforded a

reasonable opportunity to attend the hearing and be heard at the

patient's own expense unless the patient has been otherwise subpoenaed

or ordered to appear at the hearing. However, the proceedings will not

be unduly delayed for this purpose. In a case before a court-martial

composed of a military judge and members, the military judge shall

conduct the hearing outside the presence of the members.

(3) If the military judge determines on the basis of the hearing

described in subparagraph (2) of this subdivision that the evidence

that the party seeks to acquire, offer, or exclude is privileged,

irrelevant, or otherwise inadmissible, no further proceedings will be

conducted on the issue and the military judge shall not order the

production or admission of the evidence.

(4) If the military judge is unable to determine whether the

evidence is privileged or relevant, the military judge shall examine

the evidence or a proffer thereof in camera.

[[Page 24644]]

(A) If the military judge determines on the basis of the in camera

examination that the evidence is privileged, irrelevant, or otherwise

inadmissible, the military judge shall not order the production or

admission of the evidence.

(B) If the military judge determines that the evidence is relevant

and not privileged, such evidence, or pertinent portions thereof, shall

be produced and/or admitted in the trial to the extent specified by the

military judge.

(5) To prevent unnecessary disclosure of evidence of a patient's

records or communications, the military judge may issue protective

orders or may admit only portions of the evidence.

(6) The motion, related papers, and the record of the hearing shall

be sealed and shall remain under seal unless the military judge or an

appellate court orders otherwise.

The analysis to Mil. R. Evid. 501 is amended by adding:

``199 Amendment: The amendment of Mil. R. Evid 501(d), and the

related creation of Mil. R. Evid. 513, clarify the state of military

law after the Supreme Court decision in Jaffee v. Redmond, ______ U.S.

______ [116 S. Ct. 1923, 135 L.Ed. 2d. 337] (1996). Jaffee interpreted

Fed. R. Evid. 501, which refers federal courts to state law to

determine the extent of privileges in civil proceedings. Although Mil.

R. Evid. 501(d), as it existed at the time of the Jaffee decision,

precluded application of such a privilege in courts-martial, Rule

501(d) was amended to prevent misapplication of a privilege. The

language of Mil R. Evid 513 is based in part on Proposed Fed. R. Evid.

(not enacted) 504 and state rules of evidence. Mil. R. Evid. 513 was

created to establish a limited psychotherapist-patient privilege for

civilians not subject to the UCMJ and military retirees. In keeping

with the practice of American military law since its inception, there

is still no doctor-patient or psychotherapist-patient privilege for

members of the Armed Forces.

The analysis to Mil. R. Evid. 513 is created as follows:

``199 Amendment: Mil. R. Evid. 513 was created to establish a

limited psychotherapist-patient privilege for civilians not subject to

the UCMJ and military retirees. In keeping with the practice of

American military law since its inception, there is still no doctor-

patient or psychotherapist-patient privilege for members of the Armed

Forces. Rule 513, and the related amendment to Mil. R. Evid 501(d),

clarify the state of military law after the Supreme Court decision in

Jaffee v. Redmond, U.S. ______ [116 S. Ct. 1923, 135 L.Ed. 2d. 337]

(1996). Jaffee interpreted Fed. R. Evid. 501, which refers federal

courts to state law to determine the extent of privileges in civil

proceedings. Although Mil. R. Evid. 501(d), as it existed at the time

of the Jaffee decision, precluded application of such a privilege in

courts-martial, Rule 501(d) was amended to prevent misapplication of a

privilege. The language of Mil R. Evid 513 is based in part on Proposed

Fed. R. Evid. (not enacted) 504 and state rules of evidence.

The following new paragraph is inserted in MCM, part IV after paragraph

100:

100a. Article 134 (Reckless Endangerment)

a. Text. See paragraph 60.

b. Elements.

(1) That the accused did engage in conduct;

(2) That the conduct was wrongful and reckless or wanton;

(3) That the conduct was likely to produce death or grievous bodily

harm to another person;

(4) 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.

c. Explanation.

(1) In general. This offense is intended to prohibit and therefore

deter reckless or wanton conduct which wrongfully creates a substantial

risk of death or serious injury to others.

(2) Wrongfulness. Conduct is wrongful when it is without legal

justification or excuse.

(3) Recklessness. ``Reckless'' conduct is conduct that exhibits a

culpable disregard of foreseeable consequences to others from the act

or omission involved. The accused need not intentionally cause a

resulting harm or know that his conduct is substantially certain to

cause that result. The ultimate question is whether, under all the

circumstances, the accused's conduct was of that heedless nature which

made it actually or imminently dangerous to the rights or safety of

others.

(3) Wantoness. ``Wanton'' includes ``reckless,'' but may connote

willfulness, or a disregard of probable consequences, and thus describe

a more aggravated offense.

(4) Likely to produce. When the natural or probable consequence of

particular conduct would be death or grievous bodily harm, it may be

inferred that the conduct is ``likely'' to produce that result. See

paragraph 54c(4)(a)(ii).

(5) Grievous bodily harm. ``Grievous bodily harm'' means serious

bodily injury. It does not include minor injuries, such as a black eye

or a bloody nose, but does include fractured or dislocated bones, deep

cuts, torn members of the body, serious damage to internal organs, and

other serious bodily injuries.

(6) Death or injury not required. It is not necessary that death or

grievous bodily harm be actually inflicted to prove reckless

endangerment.

d. Lesser included offenses. None.

e. Maximum punishment. Bad-conduct discharge, forfeiture of all pay

and allowances, and confinement for 6 months.

f. Sample specification. In that ________________ (personal

jurisdiction data), did, (at/on board ____________ location) (subject-

matter jurisdiction data, if required), on or about ____________

19____, wrongfully and recklessly engage in conduct, to wit: (he/she)

(describe conduct) and that the accused's conduct was likely to cause

death or serious bodily harm to ____________.

The following paragraph is added to the analysis of the punitive

articles, A23, MCM:

100a. Article 134 (Reckless Endangerment).

c. Explanation. This paragraph is new and is based on United States

v. Woods, 28 M.J. 318 (C.M.A. 1989); see also Md. Ann. Code art. 27,

sect. 120. The definitions of ``reckless'' and ``wanton'' have been

taken from Article 111, drunken or reckless driving. The definition of

``likely to produce grievous bodily harm'' has been taken from Article

128, assault.

Dated: April 29, 1997.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 97-11601 Filed 5-5-97; 8:45 am]

BILLING CODE 5000-04-P