Manual for Courts-Martial

DEPARTMENT OF DEFENSE

Office of the Secretary

Manual for Courts-Martial

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

zaction: 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, (1998 ed.) [MCM]. The

proposed changes are the 1999 draft annual review required by the MCM

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

Service Committee (JSC) on Miliary Justice,'' May 8, 1996. The proposed

changes concern the rules of procedure and evidence applicable in

trials by courts-martial and the punitive articles describing offenses.

More specifically, the proposed changes would: (1) make a technical

correction to a Rule for Courts-Martial (R.C.M.) reference; (2) clarify

the rights of victims to be present at courts-martial; (3) raise the

monetary amount affecting maximum punishments for various offenses; (4)

provide additional guidance regarding the charging of unauthorized

credit. debit, or electronic transactions; (5) add firearm or explosive

as additional criterion which would authorize greater punishment under

Article 103, captured or abandoned property; and (6) delete part of the

explanation of false official statement.

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, 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 or by any party against the United States, its

agencies, its officers, or any person.

addresses: Comments on the proposed change should be sent to LtCol

Thomas C. Jaster, U.S. Air Force, Air Force Legal Services Agency, 112

Luke Avenue, Room 343, Bolling Air Force Base, Washington, DC 20332-

8000.

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

August 4, 1999, for consideration by the JSC.

for further information contact: LtCol Thomas C. Jaster, U.S. Air

Force, Air Force Legal Services Agency, 112 Luke Avenue, Room 343,

Bolling Air Force Base, Washington, DC 20332-8000, (202) 767-1539; FAX

(202) 404-8755.

The full text of the affected sections follows:

R.C.M. 1305(d)(2) is amended to read as follows:

(2) Forwarding to the convening authority. The original and one

copy of the record of trial shall be forwarded to the convening

authority after compliance with subsection (d)(1) of this rule.''

R.C.M. 1305(d). The Analysis to R.C.M. 1305(d) is deleted.

R.C.M. 1305(e). The Analysis to R.C.M. 1305(e) is amended as

follows:

``(d) Forwarding copies of the record. Subsection (1) is based on

Article 60(b)(2). Subsection (2) is based on the third paragraph 91c of

MCM, 1969 (Rev.). Subsection (3) is self-explanatory.

1999 Amendment: The internal subsection reference in subsection

(d)(2) was corrected to reflect the 1995 change which redesignated

R.C.M. 1305(e) as R.C.M. 1305(d)''

M.R.E. 615 is amended to read as follows: ``Rule 615. Exclusion of

witness.

At the request of the prosecution of defense the military judge

shall order witnesses excluded so that they cannot hear the testimony

of other witnesses, and the military judge may make the order sua

sponte. This rule does not authorize exclusion of (1) the accused, or

(2) a member of an armed service or an employee of the United States

designated as representative of the United States by the trial counsel,

or (3) a person whose presence is shown by a party to be essential to

the presentation of the party's case, or (4) a person authorized by

statute to be present at courts-martial, or (5) any victim of an

offense from the trial of an accused for that offense because such

victim may testify or present any information in relation to the

sentence or that offense during the presentencing proceedings.''

The Analysis accompanying M.R.E. 615 is amended by inserting the

following at the end thereof:

``1999 Amendment: These changes are intended to extend to victims

at courts-martial the same rights granted to victims by The Victims'

Rights and Restitution Act of 1990, 42 U.S.C. 10606(b)(4), giving crime

victims ``the right to be present at all public court proceedings

related to the offense, unless the court determines that testimony by

the victim would be materially affected if the victim heard other

testimony at trial,'' and The Victim Rights Clarification Act of 1997,

18 U.S.C. 3510, which is restated in subsection (5). For the purposes

of this rule, the term ``victim'' includes all persons defined as

victims in 42 U.S.C. 10607(e)(2), which means ``a person that has

suffered direct physical, emotional, or pecuniary harm as a result of

the commission of a crime, including--(A) in the case of a victim that

is an institutional entity, an authorized representative of the entity;

and (B) in the case of a victim who is under 18 years of age,

incompetent, incapacitated, or decreased, one of the following (in

order of preference): (i) A spouse; (ii) a legal guardian; (iii) a

parent; (iv) a child; (v) a sibling; (vi) another family member; or

(vii) another person designated by the court.'' The victim's right to

remain in the courtroom remains subject to other rules, such as those

regarding classified information, witness deportment, and conduct in

the courtroom. Subsection (4) is intended to

[[Page 27762]]

capture only those statutes applicable to courts-martial.''

Paragraphs 32e, 33e, 46e, 49e, 52e, 58e, 78e, and 106e, Part IV,

MCM, ``Punitive Articles'' are amended by substituting the value of

``$500.00'' in lieu of ``$100.00'' in all places the value appears.

The Analysis accompanying paragraph 32(e) in Appendix 23, MCM is

amended by inserting the following at the end thereof:

``1999 Amendment: The monetary amount affecting the maximum

punishments has been revised from $100 to $500 to account for

inflation. The last change was in 1969 raising the amount to $100. The

value has also been readjusted to realign it more closely with the

division between felony and misdemeanor penalties in civilian

jurisdictions. See generally, the American Law Institute Model Penal

Code, (1980), Sec. 233.1 (suggesting $500 as the value). Although the

monetary amount effecting punishment in 18 U.S.C. 1361, Government

property or contracts, and 18 U.S.C. 641, Public money, property or

records, was increased from $100 to $1000 pursuant to the Economic

Espionage Act of 1996, Public Law 104-294, 11 Oct 96, a value of $500

was chosen to maintain deterrence, simplicity and uniformity for the

manual's property offenses.''

The Analysis accompanying paragraph 33(e) in Appendix 23, MCM is

amended by inserting the following at the end thereof:

``1999 Amendment: The monetary amount affecting the maximum

punishments has been revised from $100 to $500 to account for

inflation. The last change was in 1969 raising the amount to $100. The

value has also been readjusted to realign it more closely with the

division between felony and misdemeanor penalties in civilian

jurisdictions. See generally, the American Law Institute Model Penal

Code, (1980), Sec. 223.1 (suggesting $500 as the value).''

The Analysis accompanying paragraph 46(e) in Appendix 23, MCM is

amended by inserting the following at the end thereof.

``1999 Amendment: The monetary amount affecting the maximum

punishments has been revised from $100 to $500 to account for

inflation. The last change was in 1969 raising the amount to $100. The

value has also been readjusted to realign it more closely with the

division between felony and misdemeanor penalties in civilian

jurisdictions. See generally, the American Law Institute Model Penal

Code, (1980), Sec. 223.1 (suggesting $500 as the value). Although the

monetary amount effecting punishment in 18 U.S.C. 1361, Government

property or contracts, and 18 U.S.C. 641, Public money, property or

records, was increased from $100 to $1000 pursuant to the Economic

Espionage Act of 1996, Public Law 104-294, 11 Oct 96, a value of $500

was chosen to maintain deterrence, simplicity and uniformity for the

manual's property offenses.''

The Analysis accompanying paragraph 49(e) in Appendix 23, MCM is

amended by inserting the following at the end thereof:

``1999 Amendment: The monetary amount affecting the maximum

punishments has been revised from $100 to $500 to account for

inflation. The last change was in 1969 raising the amount of $100. The

value has also been readjusted to realign it more closely with the

division between felony and misdemeanor penalties in civilian

jurisdictions. See generally, the American Law Institute Model Penal

Code, (1980), Sec. 223.1 (suggesting $500 as the value).''

The Analysis accompanying paragraph 52(e) in Appendix 23, MCM is

amended by inserting the following at the end thereof:

``1999 Amendment: The monetary amount affecting the maximum

punishments has been revised from $100 to $500 to account for

inflation. The last change was in 1969 raising the amount to $100. The

value has also been readjusted to realign it more closely with the

division between felony and misdemeanor penalties in civilian

jurisdictions. See generally, the American Law Institute Model Penal

Code, (1980), Sec. 223.1 (suggesting $500 as the value). A value of

$500 was chosen to maintain deterrence, simplicity and uniformity for

the manual's property offenses. 18 U.S.C. 81, Arson within special

maritime and territorial jurisdiction, no longer grades the offense on

the basis of value.''

The Analysis accompany paragraph 58(e) in Appendix 23, MCM is

amended by inserting the following at the end thereof:

``1999 Amendment: The monetary amount affecting the maximum

punishments has been revised from $100 to $500 to account for

inflation. The last change was in 1969 raising the amount to $100. The

value has also been readjusted to realign it more closely with the

division between felony and misdemeanor penalties in civilian

jurisdictions. See generally, the American Law Institute Model Penal

Code, (1980), Sec. 223.1 (suggesting $500 as the value).''

The Analysis accompanying paragraph 78(e) in Appendix 23, MCM is

amended by inserting the following at the end thereof.

``1999 Amendment: The monetary amount affecting the maximum

punishments has been revised from $100 to $500 to account for

inflation. The last change was in 1969 raising the amount to $100. The

value has also been readjusted to realign it more closely with the

division between felony and misdemeanor penalties in civilian

jurisdictions. See generally, the American Law Institute Model Penal

Code, (1980), Sec. 223.1 (suggesting $500 as the value).''

The Analysis accompanying paragraph 106(e) in Appendix 23, MCM is

amended by inserting the following at the end thereof:

``1999 Amendment: The monetary amount affecting the maximum

punishments has been revised from $100 to $500 to account for

inflation. The last change was in 1969 raising the amount to $100. The

value has also been readjusted to realign it more closely with the

division between felony and misdemeanor penalties in civilian

jurisdictions. See generally, the American Law Institute Model Penal

Code, (1980), Sec. 223.1 (suggesting $500 as the value).''

Paragraph 27e(1)(a), Part IV, MCM, ``Punitive Articles'' is amended

to read as follows:

``(a) of a value of $500.00 or less. Bad-conduct discharge,

forfeiture of all pay and allowances, and confinement for 6 months.''

Paragraph 27e(1)(b), Part IV, MCM, ``Punitive Articles'' is amended

to read as follows:

``(b) of a value of $500.00 or any firearm or explosive.

Dishonorable discharge, forfeiture of all pay and allowances, and

confinement for 5 years.''

The Analysis accompanying paragraph 27(e) in Appendix 23, MCM is

amended by inserting the following at the end thereof:

``1999 Amendment: The monetary amount affecting the maximum

punishments has been revised from $100 to $500 to account for

inflation. The last change was in 1969 raising the amount to $100. The

value has also been readjusted to realign it more closely with the

division between felony and misdemeanor penalties in civilian

jurisdictions. See generally, the American Law Institute Model Penal

Code, (1980), Sec. 223.1 1 (suggesting $500 as the value). The

amendment also adds the phrase ``or any firearm or explosive'' as an

additional criterion. This is because, regardless of the intrinsic

value of such items, the threat to the community is substantial when

such

[[Page 27763]]

items are wrongfully bought, sold, traded, dealt in or disposed.''

Paragrahp 27f(3) Part IV, MCM, ``Punitive Articles'' is amended to

read as follows:

``(3) Dealing in captured or abandoned property.

In that ____ (personal jurisdiction data), did, (at/on board-

location), on or about ____ 19____, (buy) (sell) (trade) (deal in)

(dispose of) (____) certain (captured) (abandoned) property, to

wit:____, ((a firearm) (an explosive)), of a value of (about) $____,

thereby (receiving (expecting) a (profit) (benefit) (advantage) to

(himself/herself) (____, his/her accomplice) (____, his/her brother)

(____).''

Paragraph 31c(6), Part IV, MCM, ``Punitive Articles'' is deleted.

The Analysis accompanying paragraph 31(c)(6) in Appendix 23, MCM is

deleted and replaced with the following:

``1999 Amendment: Subparagraph c(6), ``Statements made during an

interrogation'' was removed in light of United States v. Solis, 45 M.J.

31 (CAAF 1997).''

Paragraph 46c(1)(h), Part IV, MCM, ``punitive Articles'' is amended

by creating the following new subparagraph (vi) as follows:

(vi) Credit, Debit, and Electronic Transactions. Wrongfully

engaging in a credit, debit, or electronic transaction to obtain goods

or money is an obtaining-type larceny by false pretense. Such use to

obtain goods is usually a larceny of those goods from the merchant

offering them. Such use to obtain money or a negotiable instrument

(e.g. withdrawing cash from an automated teller or a cash advance from

a bank) is usually a larceny of money from the entity presenting the

money or a negotiable instrument. For the purpose of this section, the

term ``credit, debit, or electronic transaction'' includes the use of

an instrument or device, whether known as a credit card, debit card,

automated teller machine (ATM) card or by any other name, including

access devices such as code, account number, electronic serial number

or personal identification number, issued for the use in obtaining

money, goods, or anything else of value.''

The Analysis accompanying paragraph 46(c) in Appendix 23, MCM is

amended by inserting the following at the end thereof:

``1999 Amendment: Subparagraph c(1)(h)(vi) is new. It was added to

provide guidance on how unauthorized credit, debit, or electronic

transactions should usually be charged. See United States v. Duncan, 30

M.J. 1284 (N.M.C.M.R. 1990) citing United States v. Jones, 29 C.M.R.

651 (A.B.R. 1960), petition denied, 30 C.M.R. 417 (C.M.A. 1960)

regarding thefts from ATM machines. Alternatives charging theories are

also available, see United States v. Ragins, 11 M.J. 42 (C.M.A. 1981);

United States v. Leslie, 13 M.J. 170 (C.M.A. 1982); United States v.

Christy, 18 M.J. 688 (N.M.C.M.R. 1984); and United States v. Schaper,

42 M.J. 737 (A.F.Ct.CrimApp. 1995) The key under Article 121 is that

the accused wrongfully obtained goods or money from a person or entity

with a superior possessory interest.''

Dated: May 17, 1999.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 99-12805 Filed 5-20-99; 8:45 am]

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